Viability or liability: what follows the South East London NHS decision?

NHS report about long ter 002Jeremy Hunt has made a big decision. As my colleague Bill Morgan recently argued, a failure to largely accept the recommendations of the TSA over the future of SLHT and would have blown a hole in the Health and Social Care Act 2012. Given the painstaking (and painful) nature of the passage of this legislation, the obvious question to have posed would be: ‘what was the point?’  By making the difficult decision he has, he has avoided this and far more.   For, in fact the implications of a ‘no’ would have gone further.  It would have undermined not just the 2012 Act, but also the spirit of its 2009 counterpart.  The credibility of the TSA process would have been shot to pieces.

The Secretary of State has averted this situation by broadly accepting Matthew Kershaw’s recommendations.  Yes, Lewisham will keep a smaller A&E, but beyond that the TSA’s report will be implemented (as an aside, this concession offers clues to the outcomes of Sir Bruce Keogh’s A&E review.  In this case an A&E is not necessarily a service you will be blue-lighted to, but it is one at which you can be admitted).  In numbers, the difference between recommendation and implementation is that Kershaw said that Lewisham A&E should retain 50% of its patients, whereas Hunt is now arguing that it will retain 75%.

But what of the future?  The situation in South East London is far from solved.  SLHT was one part of a bigger problem and more tough decisions will be required.  This is even assuming the SLHT changes go ahead.  A judicial review is on the cards.  Bear in mind that judicial reviews can only be upheld on the grounds of process – illegality, impropriety or irrationality.  And this is an entirely new process, yet to be tested by the courts or improved in the light of experience.  Jeremy Hunt’s decision ensured that politics did not blow a hole in the TSA policy, but the courts could still do just that. The battle over Lewisham is far from over.

Yet the focus of health watchers should be wider than just South East London.  Although it is foolish to speculate on where the TSA process might next be used, there are a number of ‘financially and clinical unsustainable’ Trusts (like SLHT) in what is known as the ‘FT pipeline’. These must now all be considered candidates for further uses of the 2009 Act TSA regime – the regime which applies to NHS (non Foundation) Trusts.  In Foundation Trust-land, Monitor looks to have positioned Mid Staffs in something which looks very like a pre-failure regime, ahead of the assumption on 1 April of its new powers to administer an FT-specific failure regime under the Health and Social Care Act 2012.

In truth, South East London was both a difficult and an easy place to inaugurate the TSA: it was hard for the TSA; but easy for the government.  For TSA Matthew Kershaw, the situation at SLHT was fiendishly complex.  Few trusts will have PFI white elephants round their neck which is not only choking them, but also their wider health economy.  South East London of course has many PFIs, further restricting the scope for flexibility.  It was also a multi-site trust (SLHT was itself, of course, the product of a merger of three smaller trusts just a few years ago).  SLHT was never going to be straightforward or popular (that is the point of the TSA process) and so it has proved.

But the situation did not present such a headache for the Government.  Yes, there are lots of unhappy voters , as the march in Lewisham demonstrated.  However, they tend to be Labour voters in relatively safe Labour constituencies.  The political pain is not what it might have been in some other areas where the prospects of Conservative or Liberal Democrat MPs might have been damaged or at least the chances in a marginal jeopardised.  In this sense South East London was a relatively easy test bed.

Now, by the Government’s own estimates, the process could become commonplace.  For those Trusts in the FT pipeline, the TSA regime could become the sledgehammer routinely used to crack these toughest of nuts.  Even for the Foundation Trust sector, failure (and exit) is a characteristic of all markets – even the most stable – and so we can expect to see the FT TSA regime become relatively frequent in time.

For those Trusts in the FT pipeline, decisions on when to send it a TSA will involve delicate political judgments.  As we have shown previously [link], the fortunes of many struggling hospitals may be inextricably linked with the fate of MPs in highly marginal constituencies.  Now that MPs have seen what happens to Trusts in the TSA process, they are likely to fight any attempt to put their hospitals (or indeed, neighbouring hospitals) into it – rather than acquiescing in the original decision and then protesting the outcome.

And, although the TSA process does provide some insulation from politics for the decision, it will not – and cannot – take the politics out of the outcome.   Lawyers and health watchers might understand that the Secretary of State is removed from the decision, but the electorate is unlikely to excuse him from any blame for what will inevitably be unpopular.

So South East London was harder (technically) but easier (politically) than many TSA situations will be.  Still, deciding to proceed was by no means a pain free process for Jeremy Hunt.  Politicians are now at arms’ length from some of the most difficult reconfiguration decisions.  The electorate is unlikely to see it that way.