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Confusion surrounding the proposed NHS reforms reached new heights this week as anger over the government鈥檚 plans forced the health minister Andrew Lansley into a retreat.

On Monday he delayed the controversial Health and Social Care Bill for three months, admitting that its critics had 鈥済enuine concerns鈥�. These critics include GPs, Primary Care Trusts, healthcare developers and supply chains and the influential House of Common鈥檚 health select committee, which claimed this week that the bill is going to need more than 鈥渕inor tweaks鈥�.

In a significant twist for the construction industry, the committee attacked a central plank of the reforms that would have given GPs a controlling hand over health budgets. Instead of GP commissioning consortiums proposed by the government the committee wants a wider range of health professionals and local officials to share the responsibilities within NHS commissioning authorities.

Such major changes to the bill will mean more delays and continued uncertainty over the future of healthcare commissioning, including procurement of capital projects - which will have a knock-on effect on contractors working in the sector. Here we examine what鈥檚 at stake.

More than just cuts

Public sector projects kept construction firms in rude health during the boom years, and they were a vital lifeline when the private sector collapsed in 2008. So the government鈥檚 austerity cuts were always going to be a shock to the system.

But in the health sector, there鈥檚 much more at stake than cancelled projects and capital programmes being put on hold thanks to the reforms: the client base is being abolished, and there will be a whole new set of as-yet-undefined organisations, taking a radically different approach to delivering services.

Everyone is just looking for detail right now. I ask three people who know the sector and I get four opinions

While the bill has now finally completed at committee stage in the commons, deputy prime minister Nick Clegg has said the government wants to conduct a listening exercise before it returns to parliament in the summer.

It鈥檚 hardly had a smooth passage so far, with more than 100 amendments since its publication in January, and as everyone knows it鈥檚 been widely criticised as rushed, ill-conceived and unnecessarily destructive - even by the GPs who would be handed control of 80% of the NHS budget.

The bill is pretty sketchy on what the most dramatic reorganisation of the NHS in its 63-year history will actually mean in practice, with many of the financial and legal fundamentals undecided. There are undoubtedly opportunities to reform the NHS鈥� vast estate to fit its new structure, even as public spending dries up.

But construction firms are crying out for more certainty, so they can work out where those opportunities are. Paul McGirk, business development director at Galliford Try, says: 鈥淓veryone is just looking for the detail right now. When I speak to people who know this sector well, I ask three people and I get four opinions.鈥�

Uncertainty rules

Such uncertainty is debilitating given the scale of capital spending on healthcare in recent years. According to a report published in February by AMA Research, the sector has built 107 PFI hospitals at a cost of 拢12bn and around 750 primary care centres, many under the Local Improvement Finance Trust (LIFT) scheme, a kind of PFI-in-the-community.

There are now 49 LIFT companies, which have delivered more than 拢2.3bn of investment in 285 buildings. Meanwhile, the publicly-funded Procure21 framework is estimated to have a total value of 拢4.2bn, and its successor Procure21+ launched in October is expected to spend 拢2.9bn over a four year period.

There鈥檚 no question that the fat years are over. While spending on health will remain steady over the next four years, funding for capital projects will shrink by 17%. Capital spending in England peaked at 拢6.8bn in 2009-10, around 7% of the total NHS budget. In 2010-11, it dropped to 拢5.1bn, and it will hover around the 拢4.4bn mark for the rest of the Spending Review period until 2015.  

But it鈥檚 less clear who will actually be doing the spending. 鈥淭here鈥檚 a huge amount happening as a consequence of the re-organisation, which makes it difficult to know who is going to hold the purse strings to commission construction services and how many projects will go ahead, particularly until the new entities are bedded in,鈥� says Bridget Archibald, a partner in the health group at lawyer Mills & Reeve.

What we do know

The bill proposes to abolish Primary Care Trusts (PCTs) and Strategic Health Authorities, both of which have played an important role in capital projects to date. PCTs鈥� role in commissioning clinical services - accounting for 80% of the NHS budget - would pass to consortiums of GPs, overseen by a new national body, the NHS Commissioning Board.

They may commission those services from 鈥渁ny willing provider鈥�, which pits existing NHS organisations against private providers in an open market. As for acute care, NHS trusts must all become foundation trusts by 1 April 2014, which have greater independence from government, greater freedom to borrow money - and greater freedom to fail, if they cannot compete with the private sector.

The shift from large acute hospitals to community-based facilities will continue, which means projects will be smaller, more likely refurbishments than newbuild, and concentrated in the primary care sector. Despite investment since 1997, about 23% of the NHS estate is estimated to be 鈥渦nfit for purpose鈥�. The AMA report says that although 3,000 GP premises have been modernised since 2001, one in seven is still officially classed as 鈥渂elow minimum standard鈥�.

The question is what will happen to the 4.5 million m2 of property worth 拢36bn that is owned by the PCTs after they are abolished in 2013, and who will take over their 20% shareholding in the LIFT companies. 鈥淏asically it鈥檚 a mess,鈥� says Michael Clarke, health manager at Willmott Dixon. 鈥淭he government still hasn鈥檛 said where ownership of these buildings will go. We don鈥檛 know who鈥檚 going to own them or who is going to be procuring new buildings or even maintaining the existing ones.鈥�

The bill does make reference to the transfer of PCT assets, but it does not say where they could be transferred to. In January, the Department of Health published guidance for the new community foundation trusts - proposed under Labour to separate the commissioning and provision of services - about taking over PCT properties, but this does not include PFI or LIFT assets.

There are a number of places the PCT assets could sit: with the GP commissioning consortiums (GPCCs), the NHS Commissioning Board, foundation trusts or community foundation trusts, local authorities, or an independent company, either wholly or partly owned by the state.

Local authorities might be an obvious candidate, given that they are already taking over the PCTs鈥� responsibility for public health. Clarke would welcome this: 鈥淲e鈥檇 like to see LIFT companies play a greater role where they exist, but otherwise there鈥檚 a lot of sense in the assets going to local authorities, because they have estates departments who are already managing libraries and town halls and leisure centres.鈥�

But Paul Coomber, head of healthcare at Davis Langdon, doesn鈥檛 think local authorities would be the government鈥檚 preferred option. 鈥淚t will probably go to GP consortiums, although that鈥檚 not the most popular choice, especially among the GP consortiums.鈥�

If GP consortiums are sitting on a 拢100m spend, I can鈥檛 see government shifting that into GPs鈥� bank accounts

Matthew Custance, KPMG

But GPs themselves are not actually part of the NHS, they are private businesses that have a contract with the NHS. So this raises questions over the legal and financial status of GPCCs. 鈥淲e鈥檙e still not certain how commissioning consortiums will be set up,鈥� says Matthew Custance, director of public sector healthcare at KPMG. 鈥淭he government is going to have to find a way of managing GPs鈥� responsibilities.

There are some things that PCTs do that are public duties and they need to be done by a public organisation. If GP commissioning consortiums are sitting on a 拢100m spend, I can鈥檛 see the government shifting that into GPs鈥� bank accounts.鈥�

There was, however, a hint in mid-March, when the DoH published 鈥淭he Functions of GP Commissioning Consortia: A Working Document鈥�, which stated that GPCCs
would be responsible for capital as well as revenue funding.

Transferring PCTs鈥� interests in LIFT companies could be particularly messy. These public-private partnerships were originally supposed to have a 25-year life, and the oldest is barely 10 years old. 鈥淢any LIFTs were created over two or three primary care trusts, and over two or three counties or two or three London boroughs. GP commissioning consortiums are almost always not coterminous, 鈥� says Ian Greggor, project director at Cyril Sweett.

Archibald from Mills & Reeve mentions another option: 鈥淟ogically, it would be the National Commissioning Board, but while it will have regional offices it is a national rather than local entity.鈥�

An internal Department of Health briefing document dating from July 2010, and obtained by the Health Services Journal in February, warns that the legal liabilities for terminating LIFT contracts early 鈥渃ould easily reach the high hundreds of millions鈥�, and that the private sector partners could even evict their NHS tenants. The document said that the favoured options to take over LIFT contracts were the NHS Commissioning Board or a 鈥渉ealth infrastructure company鈥�. This could be wholly owned by the department, an arm鈥檚 length body or a public-private joint-venture.

As for whether doctors want to become property developers and facilities managers, that鈥檚 another question. The British Medical Association鈥檚 GP membership voted in March for the bill to be scrapped, but 52 consortiums covering 1,860 GP practices have already signed up as the government pathfinders.

As they don鈥檛 officially exist yet, and they don鈥檛 know what powers they will have, it is still too early to ask what they would build if they were in control of capital budgets. But there are already a handful of established GP commissioning consortiums making spending decisions that are then signed off by PCTs. One of the most established is in Cumbria.

It has submitted a planning application for a 拢4.1m health centre, which will include new surgeries for several local GPs, and bring together other services including dentists, a pharmacy and a range of clinics.

In the meantime, Coomber expects the assets will be transferred to an interim body while all this is worked out. 鈥淚 think there鈥檚 going to be a holding position, for 12 months to two years.鈥� But this doesn鈥檛 necessarily mean everything will stop: 鈥淚 don鈥檛 think they can stand still, investment is going to have to be made in the intervening period or the estate will continue to degenerate.鈥�

Custance says KPMG has found PCTs responding in one of two very different ways. 鈥淭he more progressive ones say 鈥檒et鈥檚 sort out as much of the estate鈥檚 problems now as we can before we are abolished, so at least we鈥檝e got a solution that we can hand over鈥�.

The others are ignoring their estates until a decision is made. It鈥檚 a real problem, and it鈥檚 making a lot of projects across the NHS difficult. If organisations are going to commit to bidding on something, they need to know it鈥檚 going to be completed before the Primary Care Trust is abolished.鈥�

For all this, there is still a sense of optimism among the experts. 鈥淎ny strategic change is an opportunity,鈥� says Coomber. 鈥淭here is no question that the NHS over the last six months has been pretty lean. There鈥檚 been a stagnation for a while, but that can鈥檛 continue forever. When it does kick off again, I think there will be a major programme of investment.鈥�

Data from Barbour ABI