The Health and Care Act, which introduces significant reforms to the organisation and delivery of health and care services in England, received Royal Assent in April 2022. In this long read, we explain what the changes brought in by the Act mean in practice.
1. What are the main changes brought about by the Act?
Short answer
The main purpose of the Health and Care Act is to establish a legislative framework that supports collaboration and partnership-working to integrate services for patients. Among a wide range of other measures, the Act also includes targeted changes to public health, social care and the oversight of quality and safety.
Long answer
At the heart of the changes brought about by the Act is the formalisation of integrated care systems (ICSs). ICSs are partnerships that bring providers and commissioners of NHS services across a geographical area together with local authorities and other local partners to collectively plan health and care services to meet the needs of their local population. This solidifies the move away from the old legislative focus on competition to a new framework that supports collaboration.
Each ICS is now made up of two parts: an integrated care board (ICB) and an integrated care partnership (ICP). ICBs will be tasked with the commissioning and oversight of most NHS services and will be accountable to NHS England for NHS spending and performance. ICPs will bring together a wider range of partners, not just the NHS, to develop a plan to address the broader health, public health, and social care needs of the population. ICSs have the potential to reach beyond the NHS to work alongside local authorities and other partners to address the wider determinants of health.
A key premise of ICS policy is that much of the activity to integrate care and improve population health will be driven by organisations collaborating over smaller geographies within ICSs, often referred to as ‘places’, and through teams delivering services working together on even smaller footprints, usually referred to as ‘neighbourhoods’. Unlike previous reforms, which have over specified at a local level, the Act gives local leaders flexibility in how they setup these more local arrangements.
The Act also does a number of things beyond progressing integration, including formalising the merger of NHS England and NHS Improvement with the resulting body, NHS England, now responsible for providing ‘unified, national leadership for the NHS’. The Act also introduces targeted changes to public health (for example limiting the advertisement of junk food), to social care by creating a framework for assuring commissioners and sharing data, and to the quality and safety of care by formalising the role of the Health Services Safety Investigations Body – an independent body to investigate patient safety issues in England.
At a late stage in the Act’s passage through parliament, changes were added to amend the Care Act 2014 to change the cap-and-floor model of social care funding which will be implemented from October 2023. The changes will mean that local authority contribution towards paying for a person’s care would no longer be counted towards the cap on their total costs, significantly reducing protection against very high care costs for people with low to moderate assets.
2. Is this an unnecessary top-down reorganisation?
Short answer
The Act introduces significant changes to how the NHS in England is organised to promote integrated care, building on existing work to join up services and remove barriers that were getting in the way of this. The legislation is deliberately flexible to enable local discretion.
Long answer
The Act substantially changes how the NHS in England is organised. Clinical commissioning groups, which have been the primary budget holders for NHS services since 2013, have been abolished. Since ICSs were put on a statutory footing on the 1 of July 2022, ICBs now perform this role in their place.
ICSs are the latest in a long line of initiatives that aim to integrate care across local areas. Progress to date has been hampered by the previous legislative framework, which promoted competition between organisations, rather than collaboration across them.
The Act builds on the ambitions set out in the NHS Long Term Plan and is closely aligned to recommendations made by NHS England and NHS Improvement in November 2020 and in February 2021, following a period of engagement with health and care leaders. The changes seek to embed and accelerate the collaboration between NHS and other partners that ICSs have already been fostering and was accelerated during the response to the Covid-19 pandemic.
The Act does not mandate a one-size-fits-all approach or contain granular detail about how improved collaboration should be achieved, particularly at the place level, as this would risk undermining the local flexibility that is critical for integrated working. This permissiveness is important as now ICSs and places have greater freedom to respond to the needs of their local populations, rather than following an approach dictated by the top.
3. Will the Act lead to greater involvement of the private sector in delivering and planning clinical services?
Short answer
The Act does not have any particular implications for the involvement of the private sector in delivering clinical care in the NHS. By reducing the role of competition and relaxing current procurement rules, it will release the NHS from complex competitive tendering requirements.
Long answer
Independent sector organisations have long played a role in delivering health care services within the NHS, with services such as dentistry, optical care and community pharmacy being provided by the private sector for decades, and most GP practices are private partnerships. There is no evidence of a significant increase in NHS spending on private providers or widespread privatisation of services in recent years.
The changes to clinical service procurement brought in by the Act will reduce transaction costs and give NHS and public health commissioners greater flexibility over when to use competitive procurement processes. These reforms sit within the wider shift brought about by the legislation that places collaboration, rather than competition, at the heart of how health care services are organised.
There have been concerns that these changes would allow contracts to be awarded to new providers without sufficient scrutiny, opening the door to private providers. However, a new provider selection regime, which is being developed by NHS England to support commissioners, will include safeguards such as transparency expectations and a process for decision making. ICSs should consider how they can encourage a diversity of providers, including voluntary and community sector (VCSE) organisations, which play a vital role in delivering health and care services.
In response to concerns about the potential for private providers to hold seats on ICBs, the Act was amended to require ICBs to set out in their constitution their arrangements for managing conflicts of interest. Futhermore, the Act also states that decisions of the board and its committees must be made transparently with meeting in public and papers published.
4. Does the Act give ministers more power over the day-to-day running of the NHS?
Short answer
The Act gives the Secretary of State more powers to intervene in decisions about changes to local services and to direct NHS England.
Long answer
The Act includes new powers for the Secretary of State to intervene in local service reconfigurations. Late changes were included in the Act to limit these powers to complex and substantial changes to services, ensure that NHS organisations and local authorities affected are consulted and place a six-month time limit by which time the Secretary of State must make a decision. While the government argued that these powers would only be used very occasionally and these safeguards will limit the scope for intervention, this does create the potential for ministers to get more involved in local service changes and to delay decisions.
The Act also gives the Secretary of State a general power to direct NHS England beyond the objectives set out in the NHS Mandate, the annual list of priorities that the Department of Health and Social Care issues to NHS England and for which NHS England is accountable. Again, ministers have argued that this new power would be used rarely and is necessary due to the increased range of functions NHS England now holds. However, it does increase the scope for ministers to intervene in the operational and clinical independence of NHS England.
Taken together, these new powers create the potential for ministers to get more involved in operational issues and intervene in decision-making in the NHS.
5. Will the Health and Care Act make any difference to patients?
Short answer
By putting the emphasis on integrating care, the Act should lead to improvements in population health and patient experience, particularly for those living with multiple conditions. In practice, this will take time and depends on how effectively leaders and staff work together in implementing the changes.
Long answer
More people are now living with multiple long-term conditions and need support from several different services at the same time. Services therefore need to work together more effectively to provide joined-up, co-ordinated care that meets individuals’ needs in a flexible, person-centred way.
However, the NHS was set up to provide episodic treatment for acute illness and has been organised around separate organisations working autonomously. This has been reflected in the way that services are contracted and paid for and the way that providers and commissioners are inspected and regulated, making it difficult to join up services.
The changes introduced by the Act address this by bringing different organisations together to plan and deliver services in partnership and ensuring that NHS organisations work closely with local authorities, VCSE organisations and communities themselves to improve population health. National Voices, Age UK, the Richmond Group of Charities and The King’s Fund have produced a shared vision of what the new reforms could achieve by making it easier for health and care organisations of all kinds to work together to shape health and wellbeing.
Overall, however, the Act can only achieve so much by establishing a framework that enables services to collaborate to better meet patients’ needs. Whether this happens in practice will depend on how local organisations, leaders and clinical teams work together implement these changes. It will be important for them to be afforded time to make a success of this.
6. Does the Act tackle the big challenges the health and care system currently faces?
Short answer
In the long term, the changes introduced by the Act are key to improving services for patients and delivering ambitions to improve population health and reduce inequalities. However, it will not tackle the immediate pressures facing the health and care system.
Long answer
The NHS faces significant challenges including growing waits for care, a workforce crisis and deep health inequalities after a decade of funding settlements that failed to keep up with demand for services. At the same time, social care is in crisis following years of real-term cuts in funding and the failure of successive governments to deliver reform. These challenges have been exacerbated and accelerated by the Covid-19 pandemic but were leading to rising pressures on services well before the pandemic started.
The Act is an important step forward that will support health and care organisations to deliver integrated care that better meets the needs of patients and service users, especially the increasing number of people who rely on support from multiple different services. In the long term, it offers the opportunity to improve population health by supporting the NHS to work alongside local authorities, the voluntary and community sector (VCS) and other partners to address social and economic determinants of health. It also strengthens duties on NHS organisations to tackle health inequalities. These are important changes, but they will not address the immediate pressures facing the health and care system. This will require sustained investment, excellent leadership and a much stronger focus on the health and care workforce.