By His Honour Judge Peter Latham (retired)
13 September 2016
His Honour Peter Latham is Chair of Willesden Locality PPG and a member of the CCG EDEN Committee. He is a retired barrister with a specialist medico/legal practice and a retired Circuit Judge who sat at central and north London county courts including Willesden. He has lived in and been an NHS GP patient in Willesden for over 45 years.
1. Patients and public cannot reach conclusions about the overall merits of the NHSE Five Year Forward View NW London STP because the draft dated 30 June 2016 appears to be deliberately obscure and incomplete about key details: either because they have not yet been formulated, or to make public opposition difficult during the transformation. The main NHS Project Initiation Document (PID), the Business Case, Management Consultants' reports and other key documents have not been disclosed even to the small number of 'lay partner' patient representatives hand-picked to attend some NW London Collaboration of CCGs meetings.
2. From a patient perspective from the time the NHS Act 1946 came into force on 5 July 1948 the model has changed remarkably little. Most NHS medical care is still obtained by visiting your GP who will refer you to hospital for specialist investigation and treatment when required. Most of the GP practices remain the same, and the hospitals mostly remain the same. Social care has been provided separately by the local council. The multiple NHS administrative shake-ups of Health Authorities etc. have barely been noticed by patients including the Health and Social Care 2012 Act's introduction of CCGs. The STP proposes the most radical changes to this structure since 1948 that appear to introduce a model that most GP's and almost all patients still do not understand and are mostly unaware of.
3. The NHS Five Year Forward View and STP projects are major 'top down' policies that are clearly mostly focussed on reducing NHS costs to keep within a Government cost cap fixed by HM Treasury. It is an old joke that is funny because of its element of truth that the NHS is the last great Stalinist institution in Europe. The UK allocates about 9% of its GDP on the NHS where other developed counties obtain better outcomes as measured by survival rates for serious conditions on allocating about 11 % of GDP to healthcare. It is arguable that this is really the main problem.
4. In seeking to transfer so much healthcare out of hospital into community services the NHSE Five Year Forward View and the STPs are swimming against the international tide of healthcare improvements obtained with new sophisticated investigations and treatments provided by increased hospital doctor specialisation. In 1948 hospital Consultants were mostly general surgeons and general physicians. Initially antibiotics delivered the great improvement in medical care. All over the world the secondary hospital landscape has changed out all recognition since 1948 with increased medical and surgical specialisation and sub-specialisation for both investigations and treatment. Granted, many special investigations such as resting ECG can now be carried out by the new generation of hospital trained GPs with machines that have become much smaller and cheaper. Many routine low-tech mass numbers hospital services such as diabetic clinics can be transferred out of of hospital to be provided in the community. It remains to be seen whether they will prove to be cheaper and more efficient. But it appears that the STP attempts to swing the pendulum too far.
5. It is not clear what will happen to the traditional GP family doctor practice model under the STP. It has become fashionable amongst NHE executives and their business consultants to decry them as a 'cottage industry'. The core of structural change is the new Multi-speciality Community Provider (MCP) contract for over-arching primary care with 'intermediate' out-of hospital and new primary services provided at 'hubs' leading on to full Accountable Care Partnerships (ACP) by 2021. It is said that primary care will be delivered through networks, federations of practices, or super-practices working with partners. The NHS England publication 'Multi-specialty community provider (MCP) emerging care model and contract framework' published July 2016 at page 30 says:
”New models of accountable care provision will move the boundary between what is commissioning and what is provision. We are working with a number of MCP vanguards to establish which activities must always remain with the CCG (or other commissioners), and which activities an MCP would perform under contract.”
6. No detail is provided of how MCPs and ACPs will work - or how they will affect the traditional NHS GP practice delivered by SMS and APMS contracts. No experience from any existing whole population state-funded model is identified. The King's Fund March 2014 paper on Accountable Care Organisations in the US and England pointed out that the US models on which this concept is based are all much smaller and with different sources of funding. It is arguable that the STP disregards the excellent value for that we obtain from our traditional GP practices - for all their faults – for about 9% of the total NHS budget. It appears that in these new over-arching structures the traditional SMS GP contract may be left to wither on the vine by re-allocating funding to make them unviable. It is arguable that a better, more achievable, and more cost effective solution could be obtained by simply putting more resources into the existing GP network. If the current STP is implemented in full it seems likely that in 10 years time the pendulum will swing again back on a new slogan 'Small is beautiful'.
7. The STP integrated medical and social care proposals depend heavily on the individual patient information sharing duties in the Health and Social Care (Safety and Quality) Act 2015. NW London and Brent CCG posters have have already been put up in Brent GP practices. No date is stated for the start of the sharing, nor exactly what will be shared, nor with whom. The section on Integrated Care Record says:
"The Integrated Care Record (ICR) will display a range of test results, medication, allergies and social or mental health information relevant to the care of that person. Information around people's cost of care may also be included as part of the ICR. It is expected that this will be a key enabler in improving decision making when determining people's care needs."
The last sentence is disingenuous. When it speaks of 'care needs' it clearly does not mean investigation and treatment 'needs': it means cost-controlled investigation and treatment 'allocation'. Under the heading Service User Consent the poster says that "people are able to opt out of their information being shared at any point ...." and goes on to claim that if you decide to opt out later the ICR will be re-created. We can find nothing in legislation that authorises this 'opt-out' model of purported implied consent by default. This appears to be an attempt to re-introduce the opt-out model on which the 'Care.data' failed. Doctors' misgivings about this 'opt-out' model are revealed by Brent CCG providing them with an indemnity against claims for breach of their doctor-patient duty of confidentiality, and penalties under the Data Protection Act 1998. But the indemnity will not protect them against strengthened criminal responsibility under this Act. Nor will it protect them on misconduct complaints to the GMC disciplinary committee for breach of their common law duty of patient confidentiality.
8. An important under-pinning for the financial viability of the STP's ACP and MCP model is the choke being introduced on GP clinical independence on hospital referrals and patient choice. The new Brent Referrals Optimisation Service that started on 1 September 2016 attempts to impose a CCG-supervised clinical triage service through its provider Bexley Health Limited on all NHS GP patient referrals designed to steer all patients into cheaper relevant out-of-hospital community healthcare services where available. The patient information letters produced for this service do not inform patients about their NHS statutory and NHS contractual patient choice rights, and Brent CCG have rejected public consultation proposals that they be inserted. Without this under-pinning the CCG will not be able to assure providers that they will reliably deliver enough patients for their services to be viable financially.
9. There are very big risks with pushing ahead so fast with such a big programme of new models that are as yet untried and untested, since the few Vanguard pilots have only recently started. It is arguably reckless to put so much into new models that have foreseeable but unquantifiable risks of financial insolvency and bankruptcy liquidations when all the responsibility would fall back onto the NHS for expensive crisis management. It appears unrealistic to think that the whole NW London Collaboration STP project can be delivered by 2020/21. Its parallel Shaping a Healthier Future programme (SaHF) became stalled when the capital costs of about £1 billion required to deliver it became clear. When Brent CCG, on commencing in 2014, tried to develop an ambitious Planned Care project for about 13 medical speciality 'out of hospital' community services this project also stalled on attempting to introduce an integrated multi-disciplinary MSK (musculo-skeletal) service as the third of the new services. Both these big projects have remained stalled.
10. The STP proposes to transfer a large part of hospital care into community services commissioned by the CCGs through the new vehicle of one of the variants of the new Accountable Care Provider (ACP) models by the new Multi-speciality Community Provider (MCP) contract model. This appears to seriously weaken the statutory CCG governance model of the Health and Social Care Act 2016 just by administrative action without fresh statutory approval. The 2012 Act created major conflict of interest problems with GP members of the local CCG involved in providers tendering for contracts from the CCG. This conflict of interest is likely to be greatly increased with GPs encouraged by the STP to form large ACP-variant healthcare providers to tender for £multi-million community healthcare contracts from themselves wearing their CCG hats. Large public money scandals are predictable.
11. It appears that there are major financial implications of the STP move to ACP and MCP that have not been disclosed. Why go to all the trouble of setting up the Accountable Care Partnership (ACP) and Multi-speciality Community Provider (MCP) structures ? It now appears that again this may be largely about an attempt to get big future financial liabilities for pensions and clinical negligence off the NHS books. All large employers are desperately seeking advice from lawyers and management consultants on how to do these things. It seems that the NHS now wants to do hat Sir Philip Green did for BHS pensions. Similarly with clinical negligence liability. The NHS clinical negligence compensation bill in 2015 was about £4 billion - up £1 billion on the previous year. It is very difficult to investigate these queries through the obscure finance sections of the NW London Collaboration draft STP dated 30 June 2016. It was the same story with the ill-fated PFI initiatives. When such liabilities are transferred to new contractors they inevitably have to increase their tender figure and add a safety margin. It is foreseeable that commercial professional liability insurers will quote very high premiums to cover such alarge and fast growing contingent liabilities.
12. A great deal of the projected cost savings of the STP are highly suspect as unreliable and unrealistic. Many of the cost savings are projected from progammes to reduce long-lasting and increasing obstinately intractable conditions such as obesity and Type ll diabetes, and from preventive medicine projects. The results of the NHS accounting formulae for booking such projected savings are highly speculative. You can insert almost any figure you wish.
13. The problems of rushing through such large structural changes are likely to be aggravated by the increasing loss of confidence of the clinical workforce: as evidenced by the current industrial action by the junior doctors. For 68 years the NHS has traded on exploiting the vocational commitment of its doctors. The NHS appears to be losing much of this goodwill.
14. On 12 September 2016 the King's Fund Chief Executive Chris Ham published a commentary with muted criticism of what has been published to date about the STPs including his analysis that the ACP and MCP model is swimming against the statutory set-up tide of the Health and Social Care Act 2012 with CCGs of local GPs made responsible for promoting competition within the NHS healthcare economy - http://www.kingsfund.org.uk/blog/2016/09/stp-leaders-challenges-care-budgets?utm_source=linkedin&utm_medium=social&utm_term=thekingsfund.
15. It is very unfortunate that there is so little informed public scrutiny of the STP. Because the changes are being introduced entirely by administrative action there have been none of the automatic debates in Parliament and committee scrutiny that would accompany primary legislation. The BMA and doctors' Royal Colleges have remained strangely silent about the STP. There is just no equivalent of academic and expert peer-review scrutiny. It is being left to a very few concerned individuals to provide devil's advocate scrutiny of the proposals from the limited and late information released, and to identify weaknesses and to voice public concern. In the fable it was only the naive little boy who dared contradict the court conspiracy of silence and speak out saying that the Emperor had no clothes.
16. A major criticism of the NW London STP process is the failure to publish enough of the plans to enable the public to understand the radical changes afoot for delivery of NHS primary care. In the last analysis the default to be criticised is that by the local Clinical Commissioning Groups. Under section 14Z2 of the National Health Service Act 2006 (as amended by section 26 of the Health and Social Care Act 2012) the statutory duty remains with the CCG to involve and consult its patients and public in the planning of its commissioning arrangements and in the development and consideration of its proposals for changes in its commissioning arrangements where they would have an impact on the manner or in the range of health services available to them.