Some academic historians – which I am by training, even if that training is increasingly forgotten in the fog of health geekery – will tell you that many apparently distinct wars are in actual fact a series of battles in a much longer campaign. The underlying causes of conflict remain unresolved and so ongoing hostility is – with the benefit of hindsight – entirely predictable. This argument has been made for the Hundred Years War, the Napoleonic wars and even World Wars 1 and 2.
Bear with me on this, because there are some (I will admit very limited) comparisons between this theory and with the pattern of health reform over the last 20 years.
To understand the comparison, it is necessary to consider the three items of legislation which have underpinned our NHS until the imminent passage of the Health and Social Care Act. The first was the NHS and Community Care Act 1990. The second was the Health Act 1999. And the third was the Health and Social Care (Community Health and Standards) Act 2003.
Each one of these Acts represented, respectively, an advance, retreat, and an advance of an idea which still defines the debate about our health services almost a quarter of a century after it was first mooted. Each Act was accompanied by its own barrage of criticism, and anguished howls from various stakeholders and commentators. But equally, none of the Acts gave the idea the decisive victory it needed or killed it off entirely. They all represented individual, non-conclusive battles in a much bigger war.
The idea is, of course, the purchaser-provider split. The belief that the NHS could become more efficient and deliver better care if it was not a centrally managed organisation, but if it was instead split into multiple purchasers who acquired care from a range of competing providers – a market, in essence. It was set out in a White Paper, Working for Patients, in 1989.
It is hard to conceive of a domestic policy issue which has attracted such controversy at any point in British post-war history. The purchaser-provider split would allow the Government to wash its hands of the health service. It was the beginning of a slippery slope towards a US-style health insurance system. It would pit doctor against doctor as they competed for patients. It would destroy the joined-up, integrated care that is so important. And it would allow providers to cherry-pick the most profitable patients.
I cannot recall the legislative passage of the 1990 Act – I was in middle school at the time – but I can just imagine the trauma the Bill encountered as it marched through Parliament, because the arguments marshalled against it are identical to those deployed against the Health and Social Care Act which has just passed into law. Indeed, the arguments must have inflicted some damage on the 1990 Act, because it is not the coherent item of legislation many now believe it was.
For a start it did not split apart purchasers and providers in law. The famous Section 1 of the NHS Act 1946 – the duty for the Government to provide health services – was left unchanged, presumably to avoid the sort of trouble the current Government has found itself in. It defined ‘acquirers’ and ‘providers’ in law, but then attached those terms in an incoherent way to various NHS bodies – although NHS Trusts were ‘providers’, health authorities could be both. And although health authorities were acquirers, the legislation allowed for GPs to draw down health service budgets and become acquirers themselves.
It goes on. The ‘providers’ which were actually standalone providers – the NHS Trusts – remained subject, by order, to anything the Secretary of State (the ultimate purchaser) wanted them to do. And the contracts which NHS Trusts entered into with purchasers were not legal contracts – but contracts arbitrated by the Secretary of State. If the Secretary of State felt that a provider was being hard done by, therefore, he could tell the purchaser what they should do.
In essence, it was a bit of a muddle. It did not split apart purchasers and providers, and it created a crazy quilt of overlapping purchasing authorities.
The lack of clarity in the 1990 Act plunged the NHS into two decades of uncertainty. In failing to define who the ‘purchasers’ were, it allowed for the constant rebooting of the purchasing side over the last 20 years – health authorities, into GP fundholders, into total purchasing pilots, back into health authorities, then primary care organisations, primary care trusts, and finally pathfinder clinical commissioning groups (which are, of course, allowed for under existing legislation). And in failing to definitively break apart purchasers and providers, it allowed its opponents to regroup and seek to overturn it.
The 1999 Act was their modest victory. It removed the ability of GPs to be acquirers in law – and created ‘primary care trusts’ to act as both purchasers and providers in their stead. NHS Trusts were left alone, but – as providers – they were no longer able to compete on ‘per patient’ basis, instead having to sign block contracts with their purchasers. It was the Treaty of Versailles moment – the point at which the purchaser-provider split could have been vanquished, but instead had its wings clipped.
It was a short-lived victory. By 2003, the Health and Social Care (Community Health and Standards) Act 2003 was passed, establishing foundation trusts. They were distinct from NHS trusts in one critical way. They were genuinely operationally independent from the Secretary of State – first, because once the Secretary of State established them, he could not interfere by order; and second, because the contracts they signed with purchasers were genuinely legal contracts.
It was an advance again of the purchaser-provider split. But it was nowhere near a decisive victory. Primary care trusts were still left to be both purchasers and providers – and could not become foundation trusts – and not all hospitals became foundation hospitals, continuing the muddy split between purchasers and providers.
The Labour Government exhausted all its NHS reform political capital with the 2003 Act. From then on in, it took advantage of the extraordinarily permissive legislative framework to further entrench the purchaser-provider split without recourse to Parliament. Payment by Results was introduced to force hospitals to compete on a ‘per-patient’ basis once again. A Cooperation and Competition Panel was established to help ensure providers and purchasers were kept split. And, at the end of its period in power – lest we forget, under Andy Burnham – primary care trusts were broken apart into purchasers and providers.
But the time the Coalition Government took office, the purchaser-provider split was further entrenched into the NHS landscape than it had been even under the Conservative Government of the 1990s. But most of it had not been anywhere near Parliament. So – when the Coalition Government took power – it faced the same legislative challenge (or opportunity) as that faced by Labour on coming to power in 1997.
Which brings us to the present day, and to the messy passage of what will shortly become the Health and Social Care Act 2012. Because what it does do, clearly, is spell out the boundaries of the purchaser-provider split in way which the 1990, 1999 and 2003 Acts all failed to do. And what it also does is codify all those non-legislative reforms which were made by Labour. In essence, the passage of the Act has had to re-fight all the battles from 1990, 1999 and 2003 – alongside all the other battles which should have been fought in Parliament but were not because the purchaser-provider split was implemented through non-legislative routes. And all of these battles are part of the same war: the search for a decisive victory for the purchaser-provider split.
As debates on the Health and Social Care Bill finally come to an end, it seems impossible that arguments about NHS reform will be over – and at the heart of many of these has been disagreements over the purchaser-provider spilt. The Health and Social Care Bill has been a major battle in a longer ideological war. Whether it proves to be decisive remains to be seen.