Be clear about the reason for legislative change

by Debbie Paterson

26 April 2019

For legislative change to work, you need to be clear about the intended outcome

At the moment it is difficult to feel sorry for politicians and policy makers. But drafting our responses to the consultations on legislative change has made me more sympathetic to them. In the last few weeks, the HFMA has submitted written evidence to the Health and Social Care Committee’s legislative proposals inquiry and responded to NHS England’s consultation on proposed changes to legislation.

It seems to be ‘a truth universally acknowledged’ that the Health and Social Care Act 2012 is a hindrance rather than a help to the delivery of integrated patient-centred health and social care. The fact that there are 48 written submissions to the Committee’s inquiry indicates that there is a lot of interest in changing the current legislative framework. We have yet to see how many responses there will be to NHS England’s consultation.

However, looking at some of the submissions, it is clear that it is very likely that whatever changes are made, there will be unintended consequences. For example, it is unlikely that moving the commissioning responsibilities for public health to local authorities was intended to have any cost impact on NHS bodies. 

However, the differing VAT regimes between local authorities and NHS bodies have resulted in some NHS bodies incurring irrecoverable VAT and others being able to recover less VAT due to changes to their partial exemption calculation. The HFMA submissions highlight the fact that VAT is not mentioned in the consultation on proposed changes – and VAT is currently a barrier to integration.

And, it is possible the changes will simply move problems elsewhere in the system rather than solving them for good. The authors of the various submissions all have their own specialities and areas of focus – the range of issues raised in the written submissions highlights the breadth of the reach of the NHS and the depth of its impact. 

Any proposed changes must therefore be consulted on as widely as possible at all stages, so they are exposed to as many different views as possible to identify potential pitfalls and unintended consequences in advance. Wide consultation should also mean reasons for establishing the legislative framework as it is are understood. If it is not clear why the statute is as it is and what the intended outcome is expected to be then it is almost impossible to implement that legislation in practice. 

Without that level of understanding, the risk is that workarounds will be set up to make the system work in the way that people want it to work rather than to meet the intended outcome.

In the HFMA submission to the committee, we stressed that it was important that legislation sets out the principles on which the health and social care system should operate. Ideally, the legislation should allow for NHS bodies, local authorities and all other interested parties to work out how services should be delivered best for the population within that legislative framework. The framework should  ensure that best practice is followed rather than being a constraining factor to be worked around.

That assumes that all of the organisations delivering health and social care can work in harmony and have a shared vision of what is best for the population. We know that this is not the case. And, in a resource constrained world, there are always tensions about where those resources should best be allocated.


HFMA’s evidence to Health and Social Care Committee inquiry into NHS legislative proposals

HFMA response to NHS England and NHS Improvement consultation on possible changes to legislation