Local Democratic Legitimacy in Health is part of the flurry of papers comprising the policy blizzard that is Liberating the NHS, the white paper (with a very green tinge) published on 12 July setting out the so-called bottom up reorganisation of the English NHS.
Because this part of the suite of papers concerns local patient and public involvement representative structures and also brings in complaints and related issues, MAC wanted to get our thoughts in front of the public without delay.
Below are our views in italics on the main themes in Local Democratic Legitimacy in Health which we have sent to the Department of Health as part of the ongoing consultation which closes on 11 October. We urge all readers of this blog if the English NHS changes are relevant to you, to have a say on these key issues.
MAC partners have first hand experience of local LINks, having created the proposals which won the Wandsworth contract for the 3rd sector body Wandsworth Care Alliance and then working with them for 18 months delivering the policy development, governance and communications aspects of the Host role.
The comments below are on the main themes in Democratic Legitimacy and responses to the specific consultation questions are at the end.
Treat this as summer holiday reading. There is no rush, we just wanted to have our say and tell you what we think.
o HealthWatch England
Healthwatch nationally and locally needs renaming because it is too narrow to reflect health and social care and its proposed name sounds like a regulator (think Ofcom) and risks confusion in the public’s mind with the Care Quality Commission.
“Carewatch England”, though not ideal, would be better because care in its broadest sense encompasses both what the NHS and what the social care system do together and that reflects the user experience.
o local HealthWatch (reformed & augmented Local Involvement Networks LINks)
What matters more than a name is this – the body must not take a medicalised approach: people using health and care services are about much more than being patients (maternity services users for example and people with learning difficulties).
All members of the public have an equal claim to have their voice heard not just current “patients”. Patient experience is one thing; public involvement quite another and the local body – whatever it is called – can and must do more of both.
Key Proposals for Strengthening Public & Patient Involvement
• LINks to become local HealthWatch, and be given additional functions and funding to:
Currently LINks are statutory bodies operating at local level. This must be maintained when they become Local Healthwatch (LHW). Otherwise their current impact will be lost and their potential future impact with an expanded role will be attenuated.
If LHW become directly funded by Local Authorities, which are also statutory bodies, this will create an interesting governance relationship between two statutory bodies, one of which funds the other and holds it to account.
o Act as ‘citizen’s advice bureaus’, to sign-post users, and support greater patient choice in healthcare;
The CAB analogy is misleading. LINks have no “shop front” or “high street” presence; most have a “host body” such as a Council for Voluntary Service or another 3rd sector body and there are some private sector LINk “hosts”.
This use of “hosts” should disappear in the new Local Health Watch arrangements because “hosts” only provide support services but do not interface with the public to discharge LINk responsibilities.
There is no indication that Government wants a presence for HealthWatch in the local community analogous to the Community Health Councils abolished in 2003 which had premises and staff and promoted public access to their services. Things have moved on since then and using websites, leaflets and other interactive means to “signpost” to services and increase patient choice in health AND social care (the role across the HSC sectors must be stressed since that is what LINks do now as statutory bodies and it must not be lost) is a good idea.
o Act as complaints advocacy servicers, replacing the existing Independent Complaints Advocacy Service (ICAS);
This may seem superficially an attractive proposition, but it would turn out to be a fatal error to introduce complaints-related work to the LHW role. There is no doubt that the unified complaints and redress process spanning health and social care which was created in 2009 needs to be better publicised and used by the public. The current complaints processes are disjointed, difficult to access and not meeting the needs of service users or anyone else. But this does not mean that an integrating role should be given to LHW. This would in our view fatally skew its activity and doom it as an effective enabler of local voices.
Complaints advocacy is a specialist service and is best commissioned from specialist providers. The current ICAS service has not been properly evaluated and it should be before any changes are made so lessons can be learned. Health Watch England could commission complaints advocacy services (there are existing providers of the service which is currently commissioned by the DH), but it should NOT become a provider of complaints advocacy. Many CHCs found themselves doing little else but handling complaints which exhausted the staff and often put them into confrontation with hospital providers (they had no primary care or social care remit).
If Local Health Watch had a complaints and advocacy remit and worked across health and social care in its entirety, this would sink them with workload and consume considerable resources. It was the undoing of the Healthcare Commission. Complaints should continue to be handled through local resolution (commissioners and providers must get better at this as the Ombudsman repeatedly stresses in her reports) and the Ombudsman in England should remain the destination for escalated complaints that cannot be resolved locally. The present arrangements, therefore, should not change.
o Visit provider services to inspect.
This must be explained because “visit” may not have the force as the present “enter and view” powers which LINks exercise as local statutory bodies. Whatever Local Health Watch does vis a vis commissioners and providers of health and social care services, it must be no less extensive that “enter and view” is currently.
• Local authorities to be the funding bodies for local HealthWatch, as well as contracting their services. They will also be responsible for ensuring that local HealthWatch is held to account for delivering cost-effective services, and that their activities are representative of their local community.
The proposals make no mention of “host bodies” for LHW in the way that LINks currently relate to “hosts”. Instead, local authorities are described as both funding and “hosting” LHW. That is right. There is no need for intermediary bodies to hold the money and provide support services. It is a confusing governance relationship and anecdotally has resulted in confused working relationships. Each LINk should be accountable to its sponsoring Local Authority according to a national model contract and with sufficient funding to carry out its role in the local area.
• Local HealthWatch will be able to report directly to HealthWatch England instances of poor health or social care. HealthWatch England will sit within, but not be a wholly owned subsidiary of, the Care Quality Commission.
The positioning of Healthwatch England within – but not as a wholly owned subsidiary of – the Care Quality Commission is an opportunity to develop a synergistic relationship between it and LHW towards the quality regulator. Additionally, Healthwatch England could take on the developmental function of the short-lived National Centre for Involvement. That would be a positive move, by promoting and sharing good practice.
Improving Integrated Working
• Under the proposals contained in ‘Liberating the NHS’, people using services will be given more choice over provider, treatment and care.
This is right. But information must be road tested with potential users to ensure that it is given in usable formats and actually supports making choices. Websites such as NHS Choices and Patient Opinion (a social enterprise) should be developed further for this purpose. In addition, HealthWatch England should post performance data relating to each GP practice which the NHS Commissioning Board contracts with in England.
• Personal Budgets will be extended in NHS and social care, facilitated via joint needs assessments and care-planning.
This is right. The major users of personal budgets are elderly people with complex conditions and younger physically or mentally disabled people with long term conditions. An integrated health and social care budget, reflecting assessed and changing needs (the onerous burden of requesting reassessment must be addressed) would drive choice and also create a market for specialist bodies including third sector bodies and social enterprises to enter the “brokerage” market. The budget must reflect the agreed personal care plan.
• Quality Standards will be developed to span care pathways, e.g. NICE dementias standard, and be supported by CQC in its role as inspectorate of essential quality standards.
This is right. Another area for quality standards spanning pathways is long term neurological conditions. The NHS for LTNC (2005) already contains “quality requirements” which are in effect standards applicable to all long term neurological conditions. Year of care commissioning pathways already exist for motor neurone disease and Parkinson’s disease and soon for multiple sclerosis. Because these reflect the NSF, they are ready made to be combined with quality standards which CQC can use in its inspecting role. More information about this is available from Neurological Commissioning Support. www.csupport.org.uk This service was praised by the Secretary of State for commissioning innovation in his evidence to the Health Select Committee recently.
• Payment systems will be aligned to support joint working, e.g. Payment by Result (PbR), and proposals to penalise hospitals with poor readmissions rates.
The proposal to penalise hospitals for readmissions has merit, but must be more sophisticated. Breakdowns in community services over which the discharging acute facility has no control must be addressed through better integrated commissioning; otherwise it is simply buck passing. Payment by Results (in effect by activity) must become Payment by Outcomes Achieved.
• Providers will be ‘freed-up’ to innovate in line with the needs of local populations, e.g. Foundation Trusts expanding into the provision of social care.
There is everything to be gained from innovation and integration that reflects the needs of local populations and is sensitive to their experiences of local services. That is what any user-led business should do. But integration must not lead to takeovers and cartels that in effect have the opposite effect by restricting choice and stifling innovation for institutional or professional group self interest.
The expanded role of Monitor will be key in this regard. Foundation Trusts should become the independent social enterprises originally envisaged for them as “community benefit corporations” controlled by their members and accountable to their Governors.
• New commissioning arrangements, i.e. GP commissioning consortia, will facilitate better joint commissioning, e.g. in relation to children, or older people, with consortia being required by statute to ‘work with colleagues in the wider NHS, and in the social care’.
Of course and the sooner the better.
Health & Wellbeing Boards
• There is also a proposal to formalise joint working on health and well-being, via a statutory duty placed on local government to establish a ‘health and wellbeing’ board. An alternative proposal is to allow local partners to design their own arrangements.
It should be a statutory duty.
o If Health and Wellbeing boards are to be mandated, their functions are proposed as being:
- assessing the needs of local populations and lead statutory joint needs assessments;
- promoting integration and partnership across the NHS, social care, and public health;
- supporting joint commissioning and pooled budget arrangements (where all parties agree that this makes sense)
- undertaking scrutiny, especially in relation to major service design – in this capacity it would replace Overview and Scrutiny Committees (OSC).
Agreed. And the presence of independent lay people on the Board who are not elected councillors is essential. This is because in many authorities, the majority party is in such a dominant position that effective opposition and challenge is not possible and the boards and their expanded scrutiny function would suffer because of this. Such independent lay members of health and wellbeing boards should be publicly recruited and rewarded on the same basis as elected councillors serving on the board. They could be made accountable to the NHS Commissioning Board for discharging their function.
o It is anticipated that boards may split their functions in some areas, and that they would also replace some existing health partnerships to reduce bureaucracy.
Agreed. Boards could and should replace Local Strategic Partnerships and such arrangements. Their meetings must be advertised to and open to the public to attend.
o The boards would comprise of:
- Local elected representatives, including Council Leaders or Directly Elected Mayors;
- Representatives from Social Care;
This is ambiguous. It should be specifically commissioners of social care, not the providers.
- NHS Commissioners – from the local GP consortia and where appropriate from the NHS Commissioning board;
- Local Government representatives;
- Patient Champions – including local HealthWatch;
See views above about the need for independent lay members, their role is distinct from “patient champions”.
This should be treated with caution as providers have different interests to those outlined for the health and wellbeing boards. In a pluralistic market where the local NHS is no longer the preferred provider, a provider presence in any event could be difficult.
o In the event of a serious concern over a proposed service redesign, a Health and Wellbeing board could refer a decision to the NHS Commissioning Board, which could further refer on to the Secretary of State in the event that the Board was still unsatisfied, under advice from the Independent Reconfiguration Panel, Monitor and the CQC.
Local Authority Leadership for Health Improvement
• The abolition of PCTs will see a transfer of responsibility and accompanying funding to local authorities. A key plank of this will be their greater use of Public Health functions, and the appointment of local Directors of Public Health.
This is right.
• Local Authority health improvement activities will be complemented by the creation of a National Public Health Service (PHS), which will;
This is right.
o Have powers in relation to the NHS, matched by corresponding duties for NHS resilience
This is right.
o Support the Secretary of State to ensure that the NHS is resilient and able to be mobilised during emergencies.
This is right.
o Jointly appointed local Directors of Public Health with local authorities, who will be responsible to both their local authority and to the Secretary of State (via the PHS), and will have ring-fenced budgets, allocated by the PHS.
This is right.
o Agree, with the Secretary of State, how local authorities will achieve national set health improvement outcomes at the local level.
This is right.
Taking the proposals forward.
o health improvement functions will transfer to local authorities from 2012.
o Statutory partnership functions would also be established formally from 2012.
o However, if the idea receives positive support, the Departments of Health and Communities and Local Government will support local authorities to establish shadow arrangements with the PCT, emerging GP consortia and LINks in 2011.
• The Government proposes to make the changes through its forthcoming Health Bill, planned for introduction this autumn
This is the right process. Rapid transition is required.
Questions The consultation asks 17 specific questions:
1. Should local HealthWatch have a formal role in seeking patients’ views on whether local providers and commissioners of NHS services are taking account of the NHS Constitution?
Yes, LHW, as LINks are currently, should be a membership body (individuals and organisations), whose role is primarily about involvement, engagement, listening and communicating views as well as being eyes and ears about quality of services and user experiences. Locally, there is scope for developing relationships between LHW and Foundation Trust Members and Governors and with patient participation groups which all GP practices should be required to support as a condition of being part of a commissioning group.
The reference to the NHS Constitution is essential and LHW must ensure that local commissioners and providers of NHS services are taking it in account.
LHW relationship to the new “OSC” function of the local authority through the health and wellbeing board and also the CQC as the HSC quality inspectorate are essential ones to develop. This is quite different from what Healthwatch England might do as a non-membership body. Equally, Healthwatch England should NOT be the national body representing LHWs. That would invite a revival of the worst aspects of CHCs and ACHCEW and confuse the issue about to whom LHW was accountable (it must the commissioning local authority).
2. Should local HealthWatch take on the wider role outlined in paragraph 17, with responsibility for complaints advocacy and supporting individuals to exercise choice and control?
No for complaints advocacy; yes for helping individuals exercise choice and control. See views above.
3. What needs to be done to enable local authorities to be the most effective commissioners of local HealthWatch?
A national template contract setting out clear deliverables and accountability lines is essential. LHW should be “host free”. LINk host bodies are coming to the end of their three year contracts. This model should not be renewed because introducing intermediary bodies simply obfuscates governance, accountability and wastes management resources.
LINks are statutory bodies and this should also be the case for LHW. They should be established as budget holders and employers in their own right, accountable to their local authorities for their performance against national standards and compliance with a national contract. This means each LHW should hire and manage its own officers and get the service they need to carry out their roles, something most of them are not able to do at the moment because the Host stands in the way of their independence.
LHW will need a much higher profile and access to the public. This might, but does not have to mean premises due to the high costs and physical access issues involved. It is something that should be negotiated with the sponsoring local authority. LHW as a virtual but easily accessible and responsive body is the vision.
4. What more, if anything, could and should the Department do to free up the use of flexibilities to support integrated working?
For the statutory service, Section 75 agreements and “virtual” trusts such as for children’s services are already a possibility and their use needs much clearer explanation. From the user perspective, it must be made clear at every opportunity that LHW’s remit is to work across all health and social care, whether provided by NHS bodies or non-NHS ones commissioned to provide NHS services. LHW should go where patients and clients go who are using publicly funded services regardless of the provider.
5. What further freedoms and flexibilities would support and incentivise integrated working?
A solution will have to be found to the perceived barrier presented by the pension arrangements of public sector workers. This is the biggest block to incentivising the creation of mutuals and other employee ownership approaches to delivering services.
6. Should the responsibility for local authorities to support joint working on health and wellbeing be underpinned by statutory powers?
7. Do you agree with the proposal to create a statutory health and wellbeing board or should it be left to local authorities to decide how to take forward joint working arrangements?
It must be a statutory duty.
8. Do you agree that the proposed health and wellbeing board should have the main functions described in paragraph 30?
9. Is there a need for further support to the proposed health and wellbeing boards in carrying out aspects of these functions, for example information on best practice in undertaking joint strategic needs assessments?
Yes, the board will need to be well supported. Their interface with Local Strategic Partnerships must be clarified. No reason why the Boards could not absorb the LSP functions in order to reduce duplication and management costs. They should have no less than the level of local authority analytical and administrative support available to Health and Adult Social Care OSCs currently.
10. If a health and wellbeing board was created, how do you see the proposals fitting with the current duty to cooperate through children’s trusts?
Yes, they are complementary.
11. How should local health and wellbeing boards operate where there are arrangements in place to work across local authority areas, for example building on the work done in Greater Manchester or in London with the link to the Mayor?
These issues should be for local discussion and agreement, eg in London the boroughs and the Mayor must work out a way forward.
12. Do you agree with our proposals for membership requirements set out in paragraph 38 – 41?
Yes, with the inclusion of independent lay members are discussed above.
13. What support might commissioners and local authorities need to empower them to resolve disputes locally, when they arise?
The NHS Commissioning Board must address this but it must not become the automatic destination for local disagreement; local resolution must be enabled to work.
14. Do you agree that the scrutiny and referral function of the current health OSC should be subsumed within the health and wellbeing board (if boards are created)?
15. How best can we ensure that arrangements for scrutiny and referral maximise local resolution of disputes and minimise escalation to the national level?
The NHS Commissioning Board must address this but it must not become the automatic destination for local disagreement; local resolution must be enabled to work.
16. What arrangements should the local authority put in place to ensure that there is effective scrutiny of the health and wellbeing board’s functions? To what extent should this be prescribed?
This will need to be consistent across England and must therefore be included in Directions consequent on the passage of the Health Bill.
17. What action needs to be taken to ensure that no-one is disadvantaged by the proposals, and how do you think they can promote equality of opportunity and outcome for all patients, the public and, where appropriate, staff?
We do not have the wisdom of Solomon to answer this. It is not possible to say that no one will be disadvantaged by these proposals, eg some may lose their jobs.
18. Do you have any other comments on this document?
This document has much “greener edges” than others in the White Paper series; there is much to address in the definitive proposals that will underpin the Health Bill in the autumn.