Hunt’s Law
Hidden away near the back of the government’s Care Bill, which is supposed to be about improving the care of the most vulnerable patients, is an incendiary clause that could give enormous power to the Health Secretary, via one of his Trust Special Administrators (TSAs), to reorganise failing hospitals and their neighbours without much in the way of consultation. Ironically, this could jeopardise the care of the very patients the Care Bill aims to protect.
Clause 118 is seen by many as payback for Jeremy Hunt’s failure to push through the downscaling of Lewisham hospital to bail out a neighbouring South London healthcare trust (SLHT), a failing hospital with huge debts, mainly as the result of a Private Finance Initiative mortgage with unaffordable interest payments. (Eyes passim) TSA Matthew Kershaw and Hunt tried to downgrade the thriving and solvent Lewisham hospital to take some of the pain for its failing neighbour. But the High Court and Court of Appeal found using such an approach – where one hospital is used as collateral damage for another, when it had no connection to the cause of the debt – to be unlawful. So Hunt is trying to change the law.
A TSA is only supposed to be appointed under the most dire of circumstances when a hospital’s balance sheet is beyond the point of no return but under Clause 118, failing hospitals can be defined more broadly, and many are now in debt due to the flat line funding in the NHS. And once a hospital is defined as ‘failing’, any hospital or community provision which has a relation to that failing hospital could in theory be reorganised, asset-stripped or even privatised. The ability of local Clinical Commissioning Groups to contest the plans can be overridden, local people’s ability to challenge is also restricted and – in the initial reading, Local Authority Scrutiny is disallowed.
The government has now published amendments to the Bill that will make the TSA consult more widely, and hold a few more meetings, but both the King’s Fund and the Nuffield Trust have warned of the power that Clause 118 could give the Secretary of State to mandate change in NHS services without the support of local commissioners or the public. And Hunt can say he’s only acting on the advice of a TSA who the public may not trust or agree with.
The promise of the Health and Social Care Act was that decision making would be devolved locally, with patients and local NHS staff having most power in deciding how services were run. Or as Andrew Lansley was fond of pretending, ‘No decision about me without me.’ Clause 118 pulls back power to the centre and largely excludes local people from anything but a cursory conversation about the future of their local hospital.
In the NHS, it always comes down to trust. Do patients trust Jeremy Hunt and whatever Trust Special Administrator he appoints to sort out their failing hospital and to reach a decision that is in their best interests, given the dire financial circumstances in the NHS? Politicians have repeatedly blown their chance to have an honest and open debate about what the NHS can and can’t afford by imposing expensive and unnecessary reforms that have neither a mandate nor an evidence base. The suspicion that the NHS is being sold off has become a reality (Eye last), and Hunt has probably realised he has no hope of convincing the public of the need for reconfiguration, particularly as his most high profile attempt so far was deemed illegal. So he is changing the law and give him, NHS England and the market regulator Monitor far more power to make changes with a minimum of consultation. Some of the changes might even be quite sensible. But it’s no way to restore trust or unite the NHS.