The effective campaign group 38 Degrees has turned its digital guns on NHS reforms, with their commissioning and publication of legal opinions on the impact of the change to the 1948 wording that the Secretary Of State For Health's "duty to provide or secure the provision of" a comprehensive tax-funded health service free at the point of use based on clinical need.

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Click here for details of 'PM Cameron: “whole health profession on board for what’s now being done”. Why do they call August the silly season?’, the new issue of subscription-based Health Policy Intelligence.

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38 Degrees have also commissioned and published legal opinion looking at the impact of competition and procurement, which I will come to later.

A provider or a promoter?
The new Bill's text about the SOS's role is explicit in its language: "The Secretary of State must continue the promotion in England of a comprehensive health service".

I had wrongly understood that the change in language from provision to promotion to date from this Bill; however, the 2006 NHS Act refers to the SOS's duty to "continue the promotion" (my thanks to David Williams of Health Service Journal for pointing out this error).

The iconic text of the 1946 NHS Act (enacted in 1948) gave the SOS's duty as being "to provide or secure the provision". Not to promote.

The language, therefore, is inherited, and sits logically with several of New Labour's NHS reforms, as detailed below.

The functions and motivations of a provider and a promoter are very different.

In the logic of the original reform vision of Andrew Lansley (saviour, liberator), the NHS was to become a national tax-funded healthcare payment system, with no remaining vested interests in the formerly state-owned provider system.

In Lansleyland, rationing is to be done via the NHS Commissioning Board and clinical commissioning groups, leaving the SOS's role as to fight the Treasury for funds; set the NCB's mandate and hold them to account for delivery; and be more activist in public health.

Our Saviour And Liberator would certainly argue that the move away from requiring the SOS to "provide" would have upside benefits as regards depoliticising (or at least de-party-politicising) difficult decisions about contentious reconfigurations and closures of beloved local services. (When the rubber hits the road over the A&E and maternity of Chase Farm, in a Conservative-held marginal seat, we shall see how true this will be.)

Acknowledging the actualite
OSAL would also suggest that this move was in many ways a simple recognition of the reality that the state already did no longer have a line management relationship with many of its former providers, in the guise of Labour's 2003 Health And Social Care Act-created NHS Foundation Trusts.

As Labour did before him, Lansley's intention is for FTs to be the model for all currently NHS provider organisations. (Don't mention the DH's plans to erode their independence over reporting complaints, though.)

OSAL would also point to New Labour's and the DH commercial directorate's programme of non-NHS independent sector treatment centres, which were given guaranteed above-tariff prices to cover their set-up costs and guarantee owners a profit. First-wave ISTC providers were also favoured with 'take-or-pay' contracts, where they would be remunerated for the commissioned activity whether or not it happened, and were also given 'residual value' guarantees that the NHS would be forced to buy out their premises if their contracts were not renewed.

OSAL would, quite rightly, point out that this was an excellent deal for the ISTC providers, but a crappy one for taxpayers.

This is to say nothing of the nationally-mandated top-down mess of Darzi centres, many of which are now facing closure.

ISTCs and Darzi centres offer, OSAL would suggest, a plethora of excellent reasons why centralised, top-down planning leads to inefficient use of scarce NHS resources. He would like to be above such fray - decisions about new capacity should be the responsibility of local commissioners, who know they would be accountable for bad deals. (It's worth noting that nobody has been held meaningfully accountable for the bad ISTC or Darzi centre deals - let alone for PFI, which the Treasury select committee recently debunked).

With one leap, Jack was free ...
So all will be rosy in the garden under the new system? People will simply accept challenging decisions to close their local service (no matter that it may be bad)? The next Mid-Staffs will be perceived as nothing to do with the Secretary Of State For Health? The public and the media will meekly accept that he or she is merely a middle-man for £110-billion a year?

It is probably worth considering how far politics has been kept out of the collapse of Southern Cross.

The risk for a 'promoter' SOS is that they will achieve the worst of both worlds: a reduced ability to intervene, while being on the receiving end of public opprobium when things in the NHS-funded system go wrong.

And go wrong they will.

The person who is going to be put in an even stronger position by the change from provide to promote is the chief executive of the NHS Commissioning Board, Comrade Sir David Nicholson on current plans.

Nicholson will be accountable to Parliament, but will not be a party to the negotiations on NHS funding with the Treasury, leaving him or his successor with a ready-made defence to problems to brief or imply that there simply isn't enough money to do all that is being asked. Lansley could of course sack Nicholson - but that would be to admit that he had created a dysfunctional system, lacking in checks and balances.

To say nothing of democratic legitimacy.

Why the reforms will work, and why they won't
Earlier in the summer, I took part in a couple of sets of events around commissioning. They left me alternately elated and depressed about the coming changes, many of which are already well under way.

These reforms will work well in some places. There are some highly enthusiastic, motivated, sharp, commissioning-minded GPs out there. They are keen to do this important work of demand management and quality control.

Effective comissioning-minded GPs will certainly be harder to bullshit than non-clinically-experienced NHS managers from the old-school, although their ability to respond to the political pressure is as yet unknown.

Such people as these will make the new system work. Others - the non-refuseniks - will help them despite misgiving over that policies because they want to do the best for patients. And some providers want to work with these people.

Where there is an alignment of these things, then the reforms will start to make real differences to patient care.

The problem is that I am far from clear that there is a sufficient number of commissioning-savvy GPs available. They are certainly not evenly distributed around England, which is going to do interesting things to the national concept in the NHS.

More to the point, I noticed the penny dropping with some providers who are presently doing very comfortably in the unreformed NHS (more usually, those who have a geographical monopoly). They or their clinical colleagues might face losing their service and having to compete for jobs elsewhere - they do not like this.

(It is under-appreciated that a consultant who does not aspire to rise the careeerist ladder can reach a position of considerable power and stability in a DGH relatively early in their career - and that increasing specialisation into regional units to raise quality, as looks likely, will diminish the quality of life and status of such people. This will not be popular.)

Other people in the old system were clearly affronted by the challenges they were hearing from assertive, commissioning-savvy GPs. They simply did not like the inversion of the traditional power architecture of the national hospital service.

Then there are those who simply oppose the reforms, for political reasons. They suspect this is intended as a first step to privatising the NHS.

I don't believe that Andrew Lansley (saviour, liberator) has a privatisation agenda, overt or covert. I just think he has decided that the NHS can be perfectly run in a certain way; and has scant self-doubt - and no Plan B.

And I think he has a seriously poor appreciation of the high risk of failure inherent in a system-wide top-down reorganisation of the NHS, such as is well under way.

It's going to be an interesting autumn.