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Much of the post-Brexit fall out has been explained by way of an asserted democratic deficit at the European level, where people feel faceless European bureaucrats have too much power and influence over what happens at a UK level.  This has proved to be a useful shorthand for explaining the events of June. But this idea of a democratic deficit is not one that just resides at the EU level. Rather, it has wide ranging applications and is particularly relevant for events that are overtaking the UK NHS.

An absorbing article, authored by Kieran Walshe, appeared last week entitled ‘the NHS ignores the law at its peril’ (££ ).  In this piece, he outlines the myriad ways in which NHS England and other NHS organisations and bodies are circumventing legislation as set out in the Health and Social Care Act (2012). I have blogged previously about secondary legislation, whereby a reforming government might seek to smuggle controversial content into a legislative programme via the use of statutory instruments. But what Walshe lays out is something much more troubling.  He documents the ways in which various NHS organisations are effectively ‘going rogue’ by strategically and intentionally ignoring current healthcare legislation, at an organisational level, to be able to continue to deliver a population level health care system. These actions suggest not only that the Health and Social Care Act (2012) is not fit for purpose but that it is obsolete. Given the scale of the reform (allegedly visible from space) the fact that these reforms are already outmoded is troubling and has profound implications for the provision of healthcare in the UK.

So what are these rogue activities? In what Walshe describes as a new “shadowy era of extra-legislative reform” he argues changes that previously would have merited primary or secondary legislation (via statutory instruments) or public consultations are now being carried out through a process of administrative review, under the direction of the Secretary of State for Health, Jeremy Hunt.

Walshe outlines that there are differing types of change, some that are a direct consequence of the 2012 act, and others that are an example of street-level bureaucracy demonstrating that the gap between legislation and implementation is becoming an ever-widening gap. At the implementation end, some requirements were set out in the 2012 Act (or subsequent legislation) which are just being altered or ignored.

Conversely, there is also a whole host of new processes and practices that were not included in any of the legislation that is simply ‘being done anyway’ despite the fact that they have no legislative or legal basis. Walshe gives the example of the NHS tariff-based payment system. Within the HSCA 2012, there were stipulated arrangements set out to ensure Monitor could oversee and manage the tariff process. What is currently happening is that a range of actors, across NHS providers, clinical commissioning groups (CCGs) and even NHS England are ignoring this requirement and making “off-tariff” deals, or even Walshe alleges, abandoning the tariff completely for some services.

Similarly, Monitors’ (at the time controversial) regulatory role regarding competition has been consistently ignored in the new sets of processes that have sprung up around mergers and takeovers of different trusts (frequently trusts which are deemed not to be performing). These practices around either extra-legislative change or superfluous legislative change are actually the more concrete end of what is going on, there are a set of far more shadowy practices emerging which have no legislative basis whatsoever (either extra or superfluous).

These include the new care models, vanguard sites as well as the creation by NHS England of 44 geographically based Sustainability and Transformation Plans. This is despite the fact that there was a commitment to breaking up regional groupings under the Health and Social Care Act legislation. Similarly, plans to devolve many health and social care services to local authorities are also directly against the spirit and legislative intent of the act. All of this activity is operating outside of any explicit legal oversight.  It is thus impossible to call any of it, or anyone, to account.

All of this raises concerns about transparency and accountability. If these processes were transparent, then it will be clear to anyone that the legislation was being flouted. Therefore, a degree of calculated vagueness allows some actions and activities, to be obscured from view.  And this again goes contra to the requirements of the legislation.

Given that these issues are immediately apparent to anyone that wants to look, the fact that these developments appear neither newsworthy nor troublesome raises bigger concerns about these processes. It seems that a democratic deficit around the form and principles of NHS provision is emerging in a context of limited accountability and transparency. This raises some very troubling concerns around the continued provision of a national health service.