NHS England's legislation proposals to support the long-term plan

Our response to the consultation on changes to the law, April 2019

NHS consultation response

The Consultation

In February 2019, NHS England launched a consultation on its proposals to make legislative changes to help implement the long-term plan published earlier in the year. 

The AOP's response

1. Promoting collaboration

We support these proposals, which would simplify the current restrictions on local NHS reorganisations and should enable more flexible collaboration. However, NHS Improvement should have powers to prevent structural changes that could work against the interests of patients – for instance, where the end result will be reduced access to eye healthcare in the community.

2. Getting better value for the NHS

In principle we support the aim of reducing the delays and costs caused by the current procurement rules. However, there is a risk that these changes could have negative effects for patients, for instance if they result in ‘business as usual’ eye healthcare commissioning which avoids innovation and fails to meet rising levels of demand from an ageing population. 

To manage that risk in eye healthcare, commissioners should work closely with Local Optical Committees (LOCs), the statutory representative bodies for community eye healthcare providers, and Primary Eyecare Companies (PECs). PECs act as the lead for a network of community practices which already deliver NHS eye care services, in a similar fashion to GP Federations, facilitating integrated eye care services in primary and community settings. 

PECs are open to all local providers that meet the relevant clinical requirements, promoting patient choice and increasing patient access. They can therefore help commissioners maximise the scope for NHS primary care providers to deliver additional eye healthcare capacity in accessible locations,  rather than relying on overstretched hospital eye services – thus supporting the delivery of out of hospital services in local communities. 

The nature of the ‘best value test’ will be crucial in ensuring that commissioning decisions are rational and transparent. The test will need to be robust and take into account all relevant factors, including demand for services, options to provide the required capacity, and cost-effectiveness of care. For primary care generally, and for ophthalmology-related services in particular, primary eye care providers including LOCs and PECs should be engaged from the outset.

3. Increasing the flexibility of national NHS payment systems

In eye healthcare, inflexible national tariffs are currently a significant barrier to the NHS long-term plan aspiration of moving more care from secondary to primary settings. Tariffs represent an average cost per episode of care, and do not accurately reflect the fact that some episodes (and particularly those that can safely be delivered in community settings) can be delivered at significantly less cost than the tariff, while others (particularly those involving more complex care which need to be delivered in hospital) can cost much more than the national tariff. 

At present, inflexible national tariffs can therefore incentivise secondary care providers to retain simpler care episodes in-house, because the tariff payments for such care are greater than the actual cost of care. In practice, this creates a perverse financial incentive for secondary providers not to move care out into the community, even where it is safe and efficient to do so. 

We therefore strongly welcome the prospect of more local flexibility in setting tariffs. Any new rules and associated guidance should be framed so as to encourage the transfer of care episodes from secondary to primary care where this is clinically appropriate and in patients’ interests, while also ensuring that primary and secondary providers are paid the right amount for the care they provide. In particular, all care episodes must be priced realistically in a way that recognises variations in complexity and in the settings in which care can safely be provided, and drives provision of care in the most appropriate location for the patient.

Commissioners should ensure that tariffs for eye care services across secondary and primary care are set on the basis of evidence and information from the relevant care delivery setting. A reduction or increase in the hospital eye service tariff for specific types of episode, following these reforms, should not automatically influence the equivalent community tariff. 

The proposal to enable the national tariff to include prices for ‘section 7A’ public health services will apply to diabetic eye screening programmes. The current procurement approach to these services has added costs and enabled national providers to crowd out local system collaboration between acute hospital trusts and local primary care optical practices (via PECs), which has more potential to deliver an integrated service. We support applying both this proposal, and the proposals discussed above on promoting collaboration and getting better value for the NHS, to diabetic screening. All these changes would need to be made together in order to encourage the commissioning and delivery of integrated diabetic screening services.

4. Integrating care provision

The proposed change should help commissioners and providers work together to develop new models of integrated care that meet the needs of patients in their community. We therefore support it in principle. However, it will be vital for commissioners to include all the primary care NHS contracting professions – not just GPs – in the planning of new integrated services, as well as their delivery. That will help ensure that new services (whether delivered through a new NHS trust or another vehicle) are designed around the real needs of patients, which will include growing eye healthcare capacity for an ageing population.
Any new NHS trusts created under the proposed power should replace rather than supplement existing structures as far as possible, to avoid adding unnecessary management costs.

5. Managing the NHS’s resources better

These changes would enable NHS Improvement to drive cross-system efficiencies which would otherwise be frustrated by the independent nature of foundation trusts. We support them in principle. However, as noted in our response to proposal 1 above, NHS Improvement should prevent structural changes that could work against the interests of patients.

6. Every part of the NHS working together

We support these changes, as long as:
  • Decision-making committees include all the primary care NHS professions including LOCs, and are properly representative of local patient needs including eye healthcare, so they can make informed decisions on local healthcare priorities
  • The provisions to manage potential conflicts of interest (both on joint commissioner / provider committees, and on CCG governing bodies which include clinicians from local providers) are robust and effectively policed
  • Core primary care contracts, such as the General Ophthalmic Services (GOS) contract, are retained at national level to ensure an adequate foundation level healthcare offer across the population

It is also vital that new funding to support joint working is distributed fairly to those involved. We note that recent NHS England FAQ guidance on Primary Care Networks describes new funding as being directed only to GP practices, and that this approach has not worked well in previous NHS change programmes.

7. Shared responsibility for the NHS

We strongly support this proposal. A shared duty on these lines on these lines will encourage all those involved in the provision of local healthcare services to see them ‘in the round’ and seek the most efficient way of providing high-quality healthcare and public health services. This should in turn help to drive the long-term plan aspiration of delivering more healthcare in primary settings. 

Primary eye care contractors should be fully involved in this shared planning. Although the NHS eye healthcare budget is small in the context of overall NHS spending, community optical practices perform 13 million NHS sight tests in England each year, as well as offering many extended NHS services. 

The consultation refers to NHS bodies such as CCGs having shared responsibilities. If a new shared duty is to work effectively, we think it should also apply to other commissioning bodies such as local authorities.

8. Planning our services together

In principle we support the proposal that NHS England should be able to promote more joined-up services, and think it should be expected to make full use of this power.

The consultation (para 65) notes that NHS England currently commissions a range of services including primary ophthalmic services, and that it wants the planning and funding of these to be joined up with other local services.

The General Ophthalmic Services (GOS) currently commissioned by NHS England are NHS sight tests in community and domiciliary settings. These services are clearly and narrowly defined, and are delivered by almost all community optical practices in England – ensuring a standardised foundation-level eye healthcare offer across the population. 

There is a great deal of scope to augment these GOS services with other primary eye care services, such as the Minor Eye Care Services (MECS) which are already commissioned by many CCGs and have the potential to further reduce demand on secondary care if commissioned more widely. 

However, we strongly recommend that any new joint commissioning of primary care services should avoid any shift to local commissioning of core primary care contracts that are currently commissioned nationally. For example, the GOS contract provides around 13 million NHS sight tests a year in England. This is a high quality national service which is delivered in readily accessible high street locations by thousands of community optical practices, while increasingly integrated with GPs and secondary care.  

Moving to local commissioning of such services would create unwarranted variation in core primary care services, and could reduce provision in some areas, damaging patient care. It would also be highly inefficient and disruptive, adding significantly to transaction costs for no benefit.

9. Joined-up national leadership

We support these changes insofar as they would reduce unnecessary cost in the management of the NHS. However, it is important that any further organisational changes do not distract NHS England from its key task of implementing the long-term plan.

April 2019