Doctors and patients have spent a decade on the “exciting” end of a triple pendulum, living the random changes in direction that come from those incoherent pressures.
Abolishing the public body that called itself “NHS England” is a good idea in general.
Speaking in Parliament, Wes Streeting said: “NHS England will be brought into the Department entirely”. Entirely is the key word, with consequences for decisions that have not yet been made. The abolition is a change that everyone thought beneficial but few expected before Wes Streeting first announced it two weeks ago and which surprised almost everyone when Keir Starmer re-announced it on Thursday.
The body known as NHS England has conflated itself with the NHS in England which caused public confusion – they are very different things. This confusion is one reason we have referred to the overlapping behemoth as the Department of Health in England for some time.
Formally creating the Department of Health in England is a simpler and less dysfunctional of what is de facto the case today. NHS England takes instructions from DHSC and does what it thinks it should do within those constraints – the laws of unintended consequences abound. It’s not that the new Department of Health in England will necessarily make any better decisions, but it also doesn’t have to, if only because accountability will be tractable and improvements possible.
We expect social care responsibilities to also shift around after the Spending Review, as the new Department of Health in England will want to use Palantir to manage social care, in addition to the 3 DH priorities of analogue to digital, hospital to community, and prevention.
New Directions on Data
To move data around the existing system, DHSC currently writes Directions to NHS England.
But a public body can not direct itself – it can not bind itself for the simple reason it could equally easily unbind itself. When DHSC gave NHSE a Direction, NHSE had to follow it (DHSC doesn’t).
When E ceases to exist as an independent entity, the legal force of the Directions falls away, and because of the way the current legislation is written, s255/s259 of the Health and Social Care Act 2012 will cease to be operable unless there is still a separate public body to Direct. The approach used when NHS Digital was eaten by NHS England doesn’t work unless two bodies remain.
There are two choices:
- Secretary of State can ask Parliament to pass new legislation reworking all data flows in the NHS to be under the control of Ministers and the Department, leaving everyone’s medical notes at the Secretary of State’s whim;
- A new public body is formed, perhaps an NHS Information Centre, to act as data controller and centre of information governance (to avoid politicians being in charge your medical notes)
Although Streeting told Parliament: “NHS England will be brought into the Department entirely”.
The way the NHS England Federated Data Platform (Palantir) has been designed and build has given E joint data controllership of all data in the system. When E uses Palantir to decide which patient gets the operating theatre, that is because E wants to be able to change that clinical decision, and now it will be Secretary of State involving himself (or deciding not to which is also a political decision).
E has also been working with the NHS to work out the economic benefit of treatments (paras 3+4), to allow deprioritization of treatments which don’t benefit the economy, and use Palantir to prioritise diseases of the rich.
As DH eats E “entirely”, then those will all become politically responsible decisions, rather than a public body doing what it thinks it should be doing. Institutionally, the staff of E conflated the two.
Passing legislation gives the first opportunity to place the National Data Opt Out on a statutory footing. To give it the teeth that NHS E took away in implementation, and to reflect the rights of a citizen that NHSE outright ignores. It’s E’s official position that the way to express the Data Protection Act “right to object to unnecessary processing” is to express a National Data Opt Out, but then E does not apply NDOO when doing “unnecessary processing” citing loopholes in the definition of NDOO. DHSC has washed its hands of E’s decisions for years, now it will be responsible, and will have to address the blatant illegality that it will inherit (and upon which the Good Law Project have a legal case). Or DHSC can simply recognise MHRA got their implementation right as part of DHSC.
An effective Department of Health in England offers benefits to everyone – it will give a coherence to decision making that has been missing since Lansley left DHSC, and his successor expected to govern and have responsibility for delivery (NHSE as a model worked for Lansley because he wanted power without responsibility).
DH and E are flailing in a mess of E’s own design. NHS E’s indirection meant they used data on people who had objected, but then couldn’t use it on those who did want data used – generally making everyone unhappy.
When NHS England eventually opens OpenSAFELY to non-covid research, many of the challenges of GP data can be solved in a manner that is consensual, safe, and transparent, and the remaining issues can be addressed (but there’s always someone who pees in the pool).
Now DH/E can do things, respecting patients’ decisions will mean those people who don’t want their personal data used for purposes beyond their direct care would have confidence that it isn’t used for purposes they have objected to, and those who want data to be used can see that it was used for the benefits advocates claim (including growth).
Innovation and Growth
By the end of this Parliament it will likely be feasible to cure cancer in your cat, making it politically untenable not to equally cure it in you. The outgoing NHS England would have been a barrier to delivery of that improvement.Creating a functional Department of Health in England is an opportunity which could make practical in 2026 the kinds of improvements that were not feasible in 2024.
Part A of our innovation note from January is minimal largely because anything had to be acceptable to DH and deliverable by NHSE and those often fundamentally conflicted. Now there should be some increased coherence. Part B will be easier to write.
It doesn’t mean better decisions will be made, but it increases the odds and that helps patients.
When the think tanks move beyond self-congratulatory pieces about their foresight, maybe they could think about what the new DH/E should do with that capacity.
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