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As a commercial lobbyist, the highly regulated industries tend to be the lifeblood of advisory consultancies given the sheer number of policy issues at play.
The NHS has an annual budget of £95bn which it must spend effectively by obtaining the best value, clinical outcomes and measurable improvements for patients. The funding challenges and new architecture of the NHS pose a significant challenge to organisations working in or wishing to enter the healthcare space who require advisers with a clear understanding of how this complex organisational puzzle fits together and operates.
Therefore a healthy market exists for advisory firms who can use their knowledge and experience to help their clients anticipate and mitigate risks, while capitalising on opportunities to present a coherent, innovative and cost saving business case which is vital in order to gain cut-through in such a politically charged environment.
As a national institution the NHS commands fierce public and political loyalty which often gets in the way of good policy making. It has therefore been especially rewarding to have been able to put my team’s collective experience and knowledge of health policy to use in helping introduce new technological advancements and innovative ways of working into a service that is often slow to adapt.
It is personally satisfying to know that as a result of our work, patients at risk of heart disease and stroke are picked up earlier through the over-40 GP ‘health checks’ following our Campaign for Vascular Assessment. Having secured cross party support for mandating (VTE) blood clot risk assessments for hospitalised patients, using new commissioning incentives and by embedding quality standards in the NHS Litigation Authority Risk Management Standards and the new Care Quality Commission (CQC) Hospital Inspection regime, risk assessment for VTE now happens for over 95% of patients, which we are confident is saving thousands of lives each year.
The greatest challenge facing the NHS centres on how the NHS model itself can remain sustainable in the long term.
£30bn of efficiency and savings will need to be made by 2020 as a consequence of the perfect storm whipped up by an ageing population, technological advancement and an increasingly demanding patient population. These factors are likely to necessitate costly integration of health and social care.
Moving care closer to patients is widely accepted as the right course, but such integration will require further systemic change and likely require politically inconvenient and often unpalatable decisions to be made on local hospital and service closures as a result.
While there is a cross-party political acceptance on the challenges ahead, the lack of political conviction to make difficult decisions in implementing the vision is likely to slow the rate of progress required to sustain a socially funded health service that remains free at the point of care.
If 2013 was a year of NHS transition, 2014/15 will require the service to adapt to the new architecture brought about by the Health and Social Care Act 2012. This sought to remove the overt politicisation of the NHS, top-down initiatives, short-termism, and constantly shifting priorities.
Instead, commissioning decisions will increasingly be made by clinicians, which it is hoped will make the NHS more efficient and responsive to patients’ needs. This takes many of the politically sensitive decisions out of the hands of politicians, which is undoubtedly a positive development for both sides.
However, increased localisation brings with it unintended consequences. Chief among these is local variation, given that services must be designed around local population need. Whether this manifests as longer waiting times or patients in neighbouring clinical commissioning groups having different levels of access to the newest medicines, such widespread variation is at odds to the ‘N’ in the ‘NHS’ and fails to reflect the reality that the NHS is actually made up of a collection of health systems under a national brand. This disconnect creates added liability for all NHS bodies, private and voluntary sector providers supplying NHS services, given that they are required by law to take account of the NHS constitution in their decisions and actions.
In addition, the Health Secretary has dictated that quality of care will be deemed as important as quality of treatment, through greater accountability and a duty of candour in instances of patients suffering ‘serious harm’. This is rightly an issue of public concern in the light of the Francis Report into the Mid Staffordshire scandal but proposals to give these duties a legal footing prompts questions around how this would work in practice and the need for a clear definition of ‘serious harm’. This is especially the case where Francis recommends information should be volunteered by the NHS regardless of whether or not it has been requested by a patient.
While candour, undertaken promptly and with reassurance, could prevent future negligence claims, increasing patient power and levels of awareness and understanding of their rights is likely to increase the overall number of disputes and claims, creating new opportunities for the legal profession.
As an optimist, I hope the NHS will be well on track to meeting its 2020 £30bn Quality, Innovation, Productivity and Prevention savings. However, the necessity for such change is likely to be outstripped by the capacity to alter the culture and attitudes in a system that is naturally resistant to change.
Opportunities to radically innovate are often derailed at the earliest stage, for example the pausing of the current rollout of ‘care data’. The promise of a big data revolution, to drive evidence, based commissioning and improve the future scope and design of services, has been trumped by ill-informed and often hysterical opposition surrounding patient confidentiality. This issue, now politicised, will have a significant impact on slowing the very type of progress that the NHS needs to make and is likely to require significant legal opinion in the pursuit of a solution.
In summary, NHS reform poses significant challenges, but also opportunities—especially for the services industry and the legal profession, given the plethora of regulatory, competition, disciplinary, clinical and non-clinical liability issues posed by the new NHS vision. The greatest promise lies with those who can advise and present novel solutions to enable reform to become embedded in a system that delivers better efficiency and clinical outcomes as the future of the NHS depends on it.
Interviewed by Natasha Mellersh. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor. This interview first appeared in Lexis®PSL Commercial and was conducted on 1 May 2014.
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