We must galvanise opposition to Clause 118

The Care Bill, and the notorious 'hospital closure clause' makes its way through the Committee Stage in parliament this week.

Matt Dykes is the TUC’s policy officer for public services

Anyone who cares about the future of our NHS will be taking a particularly keen interest in developments in Westminster this week, as the Care Bill makes its way through the Committee Stage in parliament.

All eyes will be on what happens to Clause 118, the by now infamous ‘hospital closure clause’.

The clause was inserted into the Bill by the government in the House of Lords, largely as a reaction to having lost the legal case (and appeal) over the attempt to downgrade University Hospital Lewisham’s emergency and maternity services as part of the plan to resolve the finances of the neighbouring South London Healthcare Trust.

The new legislation would allow the government-appointed Trust Special Administrator who takes over a financially failing NHS trust or foundation trust to make recommendations for reconfiguration of services that affect providers across the whole region.

That could mean making proposals to close financially healthy and outstanding hospital services simply because they neighbour another Trust that’s in financial distress.

No hospital in the country will be safe from financially-driven closures or changes to services. Speaking in the Commons, shadow health minister Andy Burnham said in the Commons:

“Clause 118 paves the way for a new round of financially driven closures. It rips up established rules of consultation and the clinical case for change. It allows the Secretary of State to reconfigure services across an entire region for financial reasons alone, which means that no hospital, however successful, is safe.”

This is a massive change to the way services are configured throughout the NHS and a huge deviation from the original purpose of a Trust Special Administrator. The new law will railroad potentially extensive closures and reconfiguration of services through a truncated and minimal consultation process set up to deal with single trusts in exceptional circumstances.

So much for services based on clinical need.

And what of the government’s commitment to ‘nothing about me, without me’ that is supposed to underpin the NHS life under the new Act?

As the Nuffield Trust stated, these new powers will enable:

“…a considerable centralisation of control over changes to services, expanding the role of Monitor and the secretary of state. There is a tension between this and the more decentralised vision of the health service which was intended under the Health and Social Care Act of 2012.”

One reason why NHS campaigners are so fearful of these new powers is that there is a very real chance that increasing numbers of hospitals may come under the remit of these new powers as NHS trusts and foundation trust come under increasing financial pressure.

In their Quarterly Monitoring Report released last week, the Kings Fund point out very worrying financial trends across NHS trusts and clinical commission groups. They found that

“More than one in five trusts and one in eight CCGs report a possible overspend by the end of this financial year. The NHS Trust Development Authority has reported that around 30 per cent (of 102) non-foundation trusts are planning a deficit for this financial year (NHS Trust Development Authority 2013) and Monitor reports that around 11 per cent (of 147) foundation trusts are forecasting a similar position (Monitor 2013).”

These figures suggest that there could be substantial growth in the number of trusts undergoing the TSA regime and, as a result of the extension of powers through Clause 118, exponential growth in the number of trusts and foundation trusts affected by these new powers.

It is true that the government have shifted under pressure and laid down a few amendments in the Committee that provide limited additional consultation for staff, commissioners and service users in affected trusts. But none of this provides the kind of meaningful consultation that such a fundamental change to regional and local services would require.

Using the words of the Nuffield Trust, these requirements remain “far fewer and far shorter” than what is typically required.

As such, it remains hugely important that we galvanise opposition to Clause 118.

Labour are making their opposition clear. It is time the Lib Dems did too. Many Lib Dem MPs predicated their support for the government’s NHS plans on the basis of it extending local democracy. Will they make a stand now that the same government is riding roughshod over any attempt to empower local clinical, patient and community interest?

You can contact your MP through the TUC’s Going to Work site and ask them to oppose Clause 118 when it enters the Commons for its Third Reading in the next few weeks.

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