Category Archives: Health Law

Health and Social Care Acts

The Assembly has to date passed the following Acts of relevance to the health and social care community.

Food Hygiene Rating (Wales) Act 2013 – 4th of March 2013

This Act includes provision for food authorities to operate a food hygiene rating scheme and places a duty on food businesses to display their food hygiene rating at their establishment.

Human Transplantation (Wales) Act 2013 – 10th of September 2013

This Act aims to increase the number of organs and tissues available for transplant by introducing a soft opt-out system of organ and tissue donation in Wales.

Active Travel (Wales) Act 2013 – 4th of November 2013

This Act places a requirement on local authorities to continuously improve facilities and routes for walkers and cyclists and to prepare maps identifying current and potential future routes for their use.  The bill will also require new road schemes to consider the needs of pedestrians and cyclists at design stage.

National Health Service (Finance) (Wales) Act 2014 – 27th of January 2014

This Act changes the current financial duties of Local Health Boards (LHBs) under the National Health Services (Wales) Act 2006 from an annual statutory requirement for expenditure not to exceed resource limit, to a regime which considers the financial duty to manage its resources within approved limits over a 3-year period.

Social Services and Wellbeing (Wales) Act 2014 – 1st of May 2014

This Act aims to provide, for the first time, a coherent Welsh legal framework for social services.  It will ensure a strong voice and real control for people, of whatever age, enabling them to maximise their wellbeing.  It will set the legal framework and infrastructure to transform services to meet changing social expectations and changing demography.

Housing (Wales) Act 2014 – 17th of September 2014

The key purposes of this Act are to:

  • Introduce a compulsory registration and licensing scheme for private rented sector landlords and letting and management agents;

  • Reform homelessness law, including placing a stronger duty on local authorities to prevent homelessness and allowing them to use suitable accommodation in the private sector;

  • Place a duty on local authorities to provide sites for Gypsies and Travelers where a need has been identified.

  • Introduce standards for local authorities on rents, service charges and quality of accommodation;

  • Reform the Housing Revenue Account Subsidy system;

  • Give local authorities the power to charge 50% more than the standard rate of council tax on homes that have been empty for a year or more; and

  • Assist the provision of housing by Co-operative Housing Associations.

The Wellbeing of Future Generations (Wales) Act – 29th of April 2015

The key purposes of the Act are to:

  • Set a framework within which specified Welsh public authorities will seek to ensure the needs of the present are met without compromising the ability of future generations to meet their own needs (the sustainable development principle),

  • Put into place well-being goals which those authorities are to seek to achieve in order to improve wellbeing both now and in the future,

  • Set out how those authorities are to show they are working towards the well-being goals,

  • Put Public Services Boards and local well-being plans on a statutory basis and, in doing so, simplify current requirements as regards integrated community planning, and

  • Establish a Future Generations Commissioner for Wales to be an advocate for future generations who will advise and support Welsh public authorities in carrying out their duties under the Act. 

Violence against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015 – 29th of April 2015

The provisions of the Gender-based Violence, Domestic Abuse and Sexual Violence (Wales) Act are intended to ensure a focus across the public sector on the prevention of these issues, the protection of victims and the support for those affected by such issues.

The Act places duties on the Welsh Ministers, County and County Borough Councils (“Local Authorities”) and Local Health Boards to prepare and publish strategies aimed at ending domestic abuse, gender-based violence and sexual violence. The Act further provides a power to the Welsh Ministers to issue guidance to relevant authorities on how they should exercise their functions with a view to contributing to ending domestic abuse, gender-based violence and sexual violence. The Act contains provision for the appointment of a Ministerial Adviser.

Local Government (Wales) Act 2015 – 25th of November 2015

The provisions of the Local Government (Wales) Bill are intended to allow for certain preparatory work to enable a programme of local government mergers and reform and include provisions to facilitate the voluntary early merger of two or more Principal Local Authorities by April 2018. The Bill also amends existing legislative provision in the Local Government (Wales) Measure 2011 (relating to the Independent Remuneration Panel for Wales and the survey of councillors and unsuccessful candidates) and the Local Government (Democracy) (Wales) Act 2013 (relating to electoral reviews).

Regulation and Inspection (Wales) Act 2016 – 25th of January 2016

A separate Bill to the Social Services (Wales) Bill to cover the regulation and inspection of the social care workforce, training and social care services in Wales.

The Bill includes provision for:

  • reform of the regulatory regime for care and support services;
  • provision of a regulatory framework that requires an approach to the regulation of care and support services focused on outcomes for service users;
  • reform of the inspection regime for local authority social services functions;
  • the reconstitution and renaming of the Care Council for Wales as Social Care Wales and the broadening of its remit; and
  • the reform of the regulation of the social care workforce

Legislation in Progress – current Bills

Recovery of Medical Costs for Asbestos Disease (Wales) Bill

The purpose of the Bill is to enable the Welsh Ministers to recover from a compensator (being a person by or on behalf of whom a compensation payout is made to or in respect of a victim of asbestos related disease), certain costs incurred by the NHS in Wales in providing care and treatment to the victim of the asbestos-related disease.

The Counsel General wrote to the Chief Executive and Clerk of the Assembly on 11 December 2013 to advise that he would be referring the Bill to the Supreme Court under Section 112 of the Government of Wales Act 2006. This letter can be found here together with the response from the Attorney General.

The Supreme Court handed down its Judgment on this case on 9 February 2015. The Supreme Court found that the Assembly does not have the legislative competence to enact the Bill in its present form.  Details of the judgment can be accessed here  (external website).

Under Standing Order 26.53, any Assembly Member may propose that the Bill proceeds to Reconsideration Stage.

Nurse Staffing Levels (Wales) Bill

This is a proposed member Bill from the leader of the Welsh Liberal Democrats, Kirsty Williams AM.

The Bill seeks to enshrine minimum nurse to patient ratios in law to ensure that there are sufficient numbers of staff within the NHS to provide safe care at all times.

This legislation would require the government to produce regulations which set a minimum staffing level for nurses in Wales. These regulations would be required to set minimum nurse staffing levels for each different acute and specialist service. I am also mindful to include a requirement for the regulations to address the complexity of patients’ needs and on the skills mix in a hospital.

The legislation would also give the government the power to issue similar regulations for community nursing, but only when they considered that sufficient evidence exists to support regulations in this area.

This Bill is currently at post stage 4.  It is now in the four week period of intimation (11 February – 9 March 2016).  During this period, the Counsel General or the Attorney General may refer the question whether the Bill, or any provision of the Bill, would be within the Assembly’s legislative competence to the Supreme Court for decision (section 112 of the Government of Wales Act). Similarly, the Secretary of State for Wales may make an order prohibiting the Clerk of the Assembly from submitting the Bill for Royal Assent.

Public Health (Wales) Bill

The Bill includes provision for the following:

  • Tobacco and nicotine product
  • Special procedures (creating a mandatory licensing scheme for practitioners and businesses carrying out procedures such as acupuncture, body piercing, electrolysis and tattooing)
  • Pharmaceutical services
  • Provision of public toilets

The Bill is currently at stage 3 and is expected to pass all stages prior to the end of the current Assembly term.

Future Bills (of interest)

Additional Learning Needs and Educational Tribunal (Wales) Bill

Welsh Government plan to introduce a new legislative framework for supporting children and young people with additional learning needs.  This will replace existing legislation for the assessment and provision of support for learners with special educational needs in schools and learning difficulties and/or disabilities in post-16 education and training.

Welsh Government has consulted on proposals for inclusion in draft legislation which has implications for health services and education services.

It is hoped that a Bill will be formally introduced after the election in 2016.

Possible Bills: There is nothing to note in this section currently.

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Health and Social Care Briefing – March 2015

 ACTS

The Assembly has to date passed the following Acts of relevance to the health and social care community.

Food Hygiene Rating (Wales) Act 2013 – 4th of March 2013

This Act includes provision for food authorities to operate a food hygiene rating scheme and places a duty on food businesses to display their food hygiene rating at their establishment.

Human Transplantation (Wales) Act 2013 – 10th of September 2013

This Act aims to increase the number of organs and tissues available for transplant by introducing a soft opt-out system of organ and tissue donation in Wales.

Active Travel (Wales) Act 2013 – 4th of November 2013

This Act places a requirement on local authorities to continuously improve facilities and routes for walkers and cyclists and to prepare maps identifying current and potential future routes for their use.  The bill will also require new road schemes to consider the needs of pedestrians and cyclists at design stage.

National Health Service (Finance) (Wales) Act 2014 – 27th of January 2014

This Act changes the current financial duties of Local Health Boards (LHBs) under the National Health Services (Wales) Act 2006 from an annual statutory requirement for expenditure not to exceed resource limit, to a regime which considers the financial duty to manage its resources within approved limits over a 3-year period.

Social Services and Wellbeing (Wales) Act 2014 – 1st of May 2014

This Act aims to provide, for the first time, a coherent Welsh legal framework for social services.  It will ensure a strong voice and real control for people, of whatever age, enabling them to maximise their wellbeing.  It will set the legal framework and infrastructure to transform services to meet changing social expectations and changing demography.

Consultation has closed on the first tranche of regulations and codes:

http://wales.gov.uk/consultations/healthsocialcare/part11/?lang=en

http://wales.gov.uk/consultations/healthsocialcare/part-3-and-4/?lang=en

http://wales.gov.uk/consultations/healthsocialcare/part2/?lang=en

http://wales.gov.uk/consultations/healthsocialcare/part7/?lang=en

 Housing (Wales) Act 2014 – 17th of September 2014

The key purposes of this Act are to:

  • Introduce a compulsory registration and licensing scheme for private rented sector landlords and letting and management agents;
  • Reform homelessness law, including placing a stronger duty on local authorities to prevent homelessness and allowing them to use suitable accommodation in the private sector;
  • Place a duty on local authorities to provide sites for Gypsies and Travelers where a need has been identified.
  • Introduce standards for local authorities on rents, service charges and quality of accommodation;
  • Reform the Housing Revenue Account Subsidy system;
  • Give local authorities the power to charge 50% more than the standard rate of council tax on homes that have been empty for a year or more; and
  • Assist the provision of housing by Co-operative Housing Associations.

 LEGISLATION IN PROGRESS – BILLS

Recovery of Medical Costs for Asbestos Disease (Wales) Bill

The purpose of the Bill is to enable the Welsh Ministers to recover from a compensator (being a person by or on behalf of whom a compensation payout is made to or in respect of a victim of asbestos related disease), certain costs incurred by the NHS in Wales in providing care and treatment to the victim of the asbestos-related disease.

This Bill is currently at post-stage 4.  The Counsel General has written to the Chief Executive and Clerk of the Assembly to advise that the Bill will be referred to the Supreme Court for a decision relating to legislative competence.

 

Local Government (Wales) Bill

 

The provisions of the Local Government (Wales) Bill are intended to allow for certain preparatory work to enable a programme of local government mergers and reform and include provisions to facilitate the voluntary early merger of two or more Principal Local Authorities by April 2018. The Bill also amends existing legislative provision in the Local Government (Wales) Measure 2011 (relating to the Independent Remuneration Panel for Wales and the survey of councillors and unsuccessful candidates) and the Local Government (Democracy) (Wales) Act 2013 (relating to electoral reviews).

 

The Bill is currently at Stage 1 with the Communities, Equalities and Local Government Committee scrutinising the purpose and general principles of the Bill.

 

The Wellbeing of Future Generations (Wales) Bill

 

The key purposes of the Bill are to:

 

  • Set a framework within which specified Welsh public authorities will seek to ensure the needs of the present are met without compromising the ability of future generations to meet their own needs (the sustainable development principle),
  • Put into place well-being goals which those authorities are to seek to achieve in order to improve wellbeing both now and in the future,
  • Set out how those authorities are to show they are working towards the well-being goals,
  • Put Public Services Boards and local well-being plans on a statutory basis and, in doing so, simplify current requirements as regards integrated community planning, and
  • Establish a Future Generations Commissioner for Wales to be an advocate for future generations who will advise and support Welsh public authorities in carrying out their duties under the Bill.

This Bill is currently at stage 4 and is due to be voted on by the full Assembly before the end of March 2015.

Gender Based Violence, Domestic Abuse and Sexual Violence (Wales) Bill

The provisions of the Gender-based Violence, Domestic Abuse and Sexual Violence (Wales) Bill are intended to ensure a focus across the public sector on the prevention of these issues, the protection of victims and the support for those affected by such issues.

 

The Bill places duties on the Welsh Ministers, County and County Borough Councils (“Local Authorities”) and Local Health Boards to prepare and publish strategies aimed at ending domestic abuse, gender-based violence and sexual violence. The Bill further provides a power to the Welsh Ministers to issue guidance to relevant authorities on how they should exercise their functions with a view to contributing to ending domestic abuse, gender-based violence and sexual violence. The Bill contains provision for the appointment of a Ministerial Adviser.

 

The Bill is now in the four week period of intimation (11 March – 7 April 2015).  During this period, the Counsel General or the Attorney General may refer the question whether the Bill, or any provision of the Bill, would be within the Assembly’s legislative competence to the Supreme Court for decision (section 112 of the Government of Wales Act). Similarly, the Secretary of State for Wales may make an order prohibiting the Clerk of the Assembly from submitting the Bill for Royal Assent.

 

Regulation and Inspection (Wales) Bill

A separate Bill to the Social Services (Wales) Bill to cover the regulation and inspection of the social care workforce, training and social care services in Wales.

The Bill includes provision for:

  • reform of the regulatory regime for care and support services;
  • provision of a regulatory framework that requires an approach to the regulation of care and support services focused on outcomes for service users;
  • reform of the inspection regime for local authority social services functions;
  • the reconstitution and renaming of the Care Council for Wales as Social Care Wales and the broadening of its remit; and
  • the reform of the regulation of the social care workforce.

 

This Bill is currently at the scrutiny stage.  It will be considered by the Constitution Committee and the Finance Committee but the committee taking the lead in scrutiny will be the Health and Social Services Committee.  This committee has called for written evidence by the 24th of April.

 

Safe Staff Nursing Levels (Wales) Bill

This is a proposed member Bill from the leader of the Welsh Liberal Democrats, Kirsty Williams AM.

The Bill seeks to enshrine minimum nurse to patient ratios in law to ensure that there are sufficient numbers of staff within the NHS to provide safe care at all times.

This legislation would require the government to produce regulations which set a minimum staffing level for nurses in Wales. These regulations would be required to set minimum nurse staffing levels for each different acute and specialist service. I am also mindful to include a requirement for the regulations to address the complexity of patients’ needs and on the skills mix in a hospital.

The legislation would also give the government the power to issue similar regulations for community nursing, but only when they considered that sufficient evidence exists to support regulations in this area.

This Bill is currently at Stage 1 and the Health and Social Care Committee are taking evidence as part of their scrutiny process on the Principles and Purpose of the Bill.  The timescales have changed so that now the deadline for Stage 1 is Friday the 8th of May (as opposed to the original 10th of April deadline) and the Deadline for Stage 2 consideration (should that be required) is now Friday 17th of July as opposed to 5th of June.

POSSIBLE BILLS

Public Health (Wales) Bill

To provide the legislative basis for delivering improved life expectancy, wellbeing and reducing health inequality in Wales as promised both in the manifesto and in the policy document ‘Fairer Health Outcomes for All’.

A Green Paper consultation ended February 2013.  This consultation was to collect views about whether a Public Health Bill is needed in Wales.

The White Paper was published in April 2014 including measures on minimum pricing for alcohol and restricting the use of e-cigarettes.  It closed on the 24th of June 2014.  The Welsh Government intends to introduce this Bill before the summer recess of 2015.

 

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The National Health Service remains the envy of the world and is a touchstone issue in British politics. It has been subject to considerable reform by both Labour and Conservative governments since the 19905.

The present arrangements for the delivery of state-funded health­care services in the UK are of bewildering legal complexity, matched only by the complexity of the management structures of the NHS. The British public has a steadfast commitment to the NHS, and any changes to NHS services have the potential to become politically con­tentious. However there is a widespread lack of understanding about how the NHS is managed and how it actually functions. In marked contrast, changes to state-provided social care services do not have anything like the political impact of changes to NHS services. Social care services are largely administered by local authorities whose budgets have been radically cut by the present government without any sustained political challenge. However, the successful delivery of health services is dependent on the successful delivery of social care services, and vice versa.

There are however a number of key differences between health and social care services, notably that the NHS is largely free for patients at the point of use, whereas social care services are (and have always been) means tested, with some service users meeting the full costs of their care.

Legal and policy framework

The law relating to the NHS is largely contained within a single con­solidated Act, now the National Health Service Act 2006. In contrast, social care law has been spread across a myriad of different statutes, including the National Assistance Act 1948 and the Chronically Sick and Disabled Persons Act 1970, all of which get regularly amended by new legislation. The Law Commission produced a report criticising the complexity of adult social care legislation in 2011 and proposed a consolidated Bill. The present government introduced the Care Bill in May 2013, which became the Care Act 2014 in May 2014 but will come into effect when an order is made by the Secretary of State. Once implemented there will be a single Act of Parliament for care services to complement the National Health Service Act 2006.

It remains to be seen whether a single Care Act will make any sig­nificant difference to users of social care services. However, a single statute should make the job of those advising social care users (who are very often not lawyers) more straightforward.

The future of the NHS is the subject of academic departments, policy commissions, endless consultations and vast media comment. NHS controversies have led to politicians losing their parliamentary seats, and those who oppose any set of local or national changes to NHS services can be relied upon to predict the worst and wave shrouds to support their case. The NHS is, as the former Conservative Chancellor, Nigel Lawson said, ‘the closest thing the English have to a religion’. A politician therefore meddles with the NHS at his or her peril.

The Conservative MP Andrew Lansley spent years in opposition thinking about the NHS and finally got his hands on the ministerial red boxes when he was appointed Secretary of State for Health in May 2010. Within a few short weeks he had published his vision for the future of the NHS in a White Paper called Equity and Excel­lence: Liberating the NHS, which very largely built on the speeches he had made in opposition. That led to the Health and Social Care Act 2012, which was one of the most complex Bills ever presented to Parliament. It eventually got through the parliamentary process after a tortuous passage (including the famous Spring 2011 ‘pause’ to facilitate a ‘listening exercise’). Despite the complexity of the 2012 Act the vast majority of the changes it introduced to the NHS could have been introduced without legislation. The net result of the political fallout was that Andrew Lansley lost his job as Secretary of State for Health soon after the Bill was passed, even though he said it was the only job in government that he wanted. The new Health Secretary is Jeremy Hunt who is largely carrying on the reforms of his predecessor.

However, political shortcomings in the Lansley vision of a ‘Bank of England’ type of NHS, largely run by NHS England and free of political control, have become increasingly clear. In June 2014, junior Health Minister Jane Ellison complained that the NHS was largely ‘out of control’ of ministers, without apparently realising that this was the policy of the former Secretary of State. The 2012 Act provided that ministers remain politically accountable for the NHS, but largely removed their means of control. Ministers were thus left politically accountable for a government service that they had little if any formal means of controlling.

A list of problems

There are a series of problems with the NHS that an incoming Labour government will have to accept. The first is that those who supply the services are trusted far more than those who manage the service. It is thus a sector where ‘provider interests’ have far more weight than almost anywhere else, apart perhaps from the military. The BMA, the Royal Colleges and the staff trade unions all have tremendous policy influence, and are not afraid to use their voices to object to change that will adversely affect their members. The strapline of the BMA is ‘Standing up for Doctors’, but it is highly effective in presenting the interests of doctors as being coterminous with the interests of the patients, and thus gaining public support for its positions. Having said that, the professionalism and commitment of the doctors, nurses and NHS managers is a resource that any Secretary of State underesti­mates at his or her peril.

Second, after the Health and Social Care Act 2012 is implemented, the legal and management structures within the NHS are wholly unclear to the public as well as to most of those working within the system. Lord Darzi, a hugely respected surgeon and former Labour Health Minister commented in a House of Lords debate as follows concerning the Lansley reforms:

We now have health and wellbeing boards, clinical commissioning groups, clinical senates, local healthwatches, the NHS commissioning board, a quality regulator and an economic regulator …At the end of the day, who is responsible for making sure that the NHS saves more lives this year than last? Who is accountable for how its budget is spent? Who will inspire NHS staff to lead the difficult changes?

Working out who is really responsible for performance in the NHS has never been straightforward and is perhaps even more difficult today than ever before.

The third problem is that many of the complaints made about the marketisation impacts of the 2012 Act failed to appreciate how far a Labour government had already taken the NHS down that path. Lansley was anxious to present his reforms as being a radical depar­ture from Labour policy, while Labour politicians, free from office, were free to complain about privatisation of the NHS by stealth. Simon Stephens, a former Health adviser to Tony Blair and now the Chief Executive of NHS England saw things differently in July 2010 when he said, ‘what makes the coalition’s proposal so radical is not that they tear up that earlier plan [the NHS plans of the Labour gov­ernment]. It is that they move decisively towards fulfilling it’ . Labour complained about the competition aspects included in Part 3 of the 2012 Act but, unless fundamental changes are made to the structure of the NHS, most of the legal obligations that brought the EU procure­ment and competition regimes into the NHS were already present. EU competition and procurement law was already having an impact on the NHS before the coalition government took office because of decisions made to create legal separation between commissioners and providers. The duties of transparency, equal treatment and non-dis­crimination in Part 1 of the Public Contract Regulations 2006 applied to the placing of NHS contracts long before 2010, and thus a disap­pointed contractor already had the right to sue an NHS commissioner for breach of procurement law duties. Part 3 of the 2012 Act increased the focus on procurement and competition for NHS bodies but, given the structures set up by the Labour government, it probably made little practical difference to legal obligations in this area.

Fourth, the NHS that an incoming Labour government will manage needs to serve an ageing population where demand for NHS services will substantially increase each year by maybe 4 per cent. The Royal College of Physicians reported recently that:

The number of general and acute beds has decreased by a third in the past 25 years, yet during the past 10 years there has been a 37 per cent increase in emergency hospital admissions and a 65 per cent increase in secondary care episodes for those over 75 in the same period (compared with a 31 per cent increase for those aged 15-59).

A 2012 parliamentary select committee report also noted the need to change services and reported:

The National Health Service will have to transform to deal with very large increases in demand for and costs of health and social care. Overall, the quality of healthcare for older people is not good enough now, and older people should be concerned about the quality of care that they may receive in the near future. England has an inappropriate model of health and social care to cope with a changing pattern of ill health from an ageing population. Further fundamental reform to the NHS in the next few years would be undesirable, but radical changes to the way that health and social care is delivered are needed to provide appropriate care for the population overall and particularly for older people, and to address future demand.

It is unclear whether the present government has a coherent plan to manage this increase in activity and equally unclear how an incoming Labour government would do so.

A fifth problem is that, as medical science develops, the treat­ments doctors can offer that may benefit patients increase each year.

The pharmaceutical industry is a great British success story but each development of new drugs creates a demand for funding for a defined cohort of patients from an already cash limited budget. With every new wonder drug the need increases for robust systems within the NHS to decide what treatments do and do not deliver both clinically effective and cost-effective treatment. An interesting observation on this issue emerged in an NHS rationing legal case where the chief executive of the local primary care trust (PCT) explained the problem as follows:

Doctors have a duty of care to their patients and thus press for the best possible care for each and every patient they are treating. The treating consultants are generally not concerned with issues of overall cost effectiveness. Their role is to press for the best treatment for their patient. Where such treatment is not routinely commissioned by a PCT, the consultant is not able to provide the treatment as part of NHS care unless an exception is made for the patient. The role of the consultant in such cases is to write letters and reports to seek to persuade the PCT to fund the treatment for patients … This means that we need to consider carefully the costs of different treatments and the benefits that a treatment delivers before we plan to commission it. For the PCT, the decision to commission a particular kind of treatment is not just a question of whether a medical treatment is clinically effective: if a treatment is not clinically effective we would not commission it. However, if a treatment is clinically effective, the PCT needs to judge whether the treatment is a cost effective use of the limited resources available to it. As the PCT has a fully committed and limited budget, the duty to break even means that if we commission additional services we need to pay for this by disinvestment from other services … PCTs can only spend money frotft taxpayers once.”

NHS policy makers often underestimate the problems caused by the entirely legitimate differences between the perspectives of treat­ing doctors and those of NHS commissioners. These two groups are using the same resources but, as the above quotation explains, they approach the issues of resource allocation in very different ways.

The way forward for NHS policy under Labour

Against this background one political reality is crystal clear – there are no votes in changing the ‘wiring’ of the NHS. A major reform of the NHS structures is politically undeliverable and should be firmly rejected by an incoming Labour government. Andy Burnham, as Shadow Secretary of State for Health, may have promised to repeal the Health and Social Care Act 2012, but in reality this promise cannot extend further than repealing parts of Chapters 1 and 2 of Part 3 of the Act (concerning the role of Monitor and Competition). However, even that would leave a vacuum which, given the constraints of EU law operating in this field and the Public Contracts Regulations 2006, could not be left unfilled. The last thing that the NHS needs is another major structural reorganisation, and the public and the professions would not stand for it.

However, an incoming Labour Secretary of State may be obliged to recognise that the commissioner/provider divide in the NHS has been largely ineffective and, to date, has been a huge waste of public money. The division between those parts of the NHS that commis­sioned healthcare and those parts that delivered it was originally devised by former Secretary of State for Health, Ken Clarke, in his 1989 White Paper Working for Patients (and at that time called the purchaser/provider divide) in order to introduce some market mecha­nisms into a state monolith. But there is little evidence that commissioners (as the purchasers are now called) have acted like effective private sector purchasers and so ‘market’ mechanisms rarely if ever deliver the intended results.

The Health Select Committee came close to recommending the abolition of commissioning in its report of March 2010, The com­mittee concluded that commissioners tended to be ‘passive’ and added that they failed to justify their own existence. It said: ‘Weaknesses [in commissioning performance] are due in large part to PCTs’ lack of skills, notably poor analysis of data, lack of clinical knowledge and the poor quality of much PCT management. The situation has been made worse by the constant re-organisations and high turnover of staff.’

There was no evidence that GPs, trained to deliver services to individual patients, would be any better at commissioning popula­tion-based medicine than PCTs. Commissioning has been further undermined because a large number of staff with knowledge of NHS commissioning have left the NHS in recent years as part of the £2obn ‘Nicholson Challenge’ and, as a result, the support structures for the new Clinical Commissioning Groups (CCGs) have been left with fewer experienced staff. However, a King’s Fund report published in July 2013 was not wholly pessimistic. It observed:

Despite the early timing of our fieldwork, we found some evidence that CCGs were already having an impact on members’ clinical practice … The most commonly cited effect of CCGs was that peer-to-peer dialogue had heightened GPs’ awareness of their referral and prescribing patterns and how they compare with those of others. In most sites, at least some practices or localities reported that this had led to their succeeding in reducing their referral rates or prescribing costs. Others, however, reported that their clinical practice remained entirely unaffected so far.”

Making commissioning work for the benefit of patients and the taxpayers is perhaps the most serious challenge in answering the Lord Darzi question about who is really responsible in the NHS. The right answer is the commissioners should be responsible and have all the tools and levers to use to make change happen. But if ditch­ing commissioning is off the agenda for an incoming Labour govern­ment (because it would involve a major change to the NHS ‘wiring’), the only alternative for a Labour Secretary of State for Health is to invest in NHS staff and support structures to make commissioning work as effectively as possible. That means reversing the present ‘clinicians good, managers bad’ rhetoric and recognising that something as complex as the NHS cannot work effectively without high-quality and effective managers in both commissioning and providing organisations.

Tools available to a Labour government to change NHS policy

Perhaps the single biggest problem that an incoming Secretary of State will inherit is a lack of legal ‘levers’ to pull to make changes happen. Under the National Health Service Act 2006 all NHS bodies other than GPs and NHS Foundation Trusts were required to follow ‘directions’ made by the Secretary of State. GPs were excluded because they were independent contractors and NHS Foundation Trusts were excluded from the Secretary of State’s direction-making powers in order to give them independence. However the Secretary of State was able to issue directions to all NHS commissioners who could, in turn, use their contractual powers to effect necessary change. The direction-making powers of the Secretary of State have virtually disappeared as a result of the Health and Social Care Act 2012. The Secretary of State does not now even have a clear power to issue directions to the NHS Commissioning Board (also known as NHS England) and in turn NHS England only has very limited direction-making powers in respect of CCGs.

There are ways of influencing the actions of NHS England and, through NHS England, other NHS bodies. The days of instructions coming from Richmond House with the force of law are over. In fact, however, little if anything has changed, and edicts from ministers remain part of the NHS. As political realities emerged, the naivety of a ‘Bank of England’ style NHS became clear. Ministers have thus reasserted political control and are acting as if they remained in charge. At present, however, they have no legal right to do so. At some point the power of persuasion may not be enough, as NHS bodies assert the legal freedoms they were given under the 2012 Act. At that point, ministers may be gently but firmly told to back off. There is an inherent contradiction between a legal Bank of England style NHS and ministers being politically accountable for an NHS they cannot control. It is an issue that will need to be resolved.

An agenda for reform

So what are the major legal issues that an incoming Secretary of State might wish to consider? I would suggest that they should include the following.

Restoring the Secretary of State’s direction-making powers

There are three reasons why an incoming Labour government should rapidly change the law to restore (or create for the first time) the Sec­retary of State’s power to issue directions to NHS England, and in turn to give NHS England the power to issue directions to any public (or private) body delivering NHS services:

  1. The Secretary of State is accountable to Parliament for the deliv­ery of NHS services. That accountability is meaningless without giving the Secretary of State the power to intervene if those charged with the day-to-day delivery of the services fail NHS patients.
  2. The resumption of NHS direction-making powers will make it clear that the NHS is a national health service directable by a single Secretary of State, and not a joined up collection of local health services.
  3. NHS direction-making powers will make it clear that the Secre­tary of State retains a measure of control over all NHS services, and thus will allow the NHS to remain outside of the regime for
    EU procurement law. It will help bring the NHS back within the Teckal exemption (which avoids the need for procurement exer­cises when services are commissioned from public bodies under a common system of control by the purchaser).

The Secretary of State imposing his will by making directions is, of course, a last resort. The existence of the power usually means that it does not have to be used. However, now that NHS England has been created as a stand-alone board for the NHS, it makes far more sense to channel a direction-making power through NHS England (with the Secretary of State directing NHS England and NHS England then directing individual NHS bodies) rather than have the Secretary of State directing individual NHS bodies.

Making NHS contracts the norm

An incoming Secretary of State should change the law to insist that all arrangements between NHS commissioners and providers for the delivery of services to NHS patients must be set up as ‘NHS con­tracts’ and not as legally binding contracts. This may appear to be a minor technical change but it will save substantial legal costs and reduce the scope for providers to miss the big picture when delivering NHS services. Partners who work together under an NHS contract are far more likely to work cooperatively to deliver integrated services for patients as opposed to those who are worried about protecting their own position by attempting to assert their legal rights. It will also assist in ensuring that EU procurement law obligations stay out of the NHS to the greatest extent possible.

Creating legal structures that can take binding decisions on NHS acute service reconfigurations against a fixed timetable

The NHS has some of the finest hospitals in the world, and the Labour government from 1997 to 2010 had a proud record of building new hospitals. But the time has come for the NHS to focus care for fewer patients in fewer hospitals and to deliver far more healthcare in the community. That requires NHS hospital reorganisations, but these have been plagued with both political and legal controversy, in part because of a lack of clear structures that define how such decisions should be taken, by whom and against what timetable.

For example, an attempt to reduce the number of centres at which children’s heart surgery should be delivered suffered setbacks as a result of two judicial reviews that challenged the lawfulness of the complex process adopted by the NHS to resolve this problem. That process has now been effectively abandoned, even though there was a wide medical professional consensus that reducing the number of centres would save the lives of sick children. That consensus did not, of course, extend to which centres should be removed from the list. The NHS will not be able to deliver more services for an ageing popu­lation in the community unless robust action is taken to reduce invest­ment in secondary care, which inevitably means fewer and larger hospitals. Four key points about these issues should be noted:

  1. Although politicians are neither qualified nor politically able to take decisions about the downgrading of individual A&E or mater­nity services, Labour politicians must be wary of supporting every local service in the run-up to the 2015 election. This was the Con­servative approach in the period leading up to 2010 – supporting every local unit under threat of change. This approach resulted in the ludicrously vague and unworkable ‘four tests’ policy intro­duced in May 2010. This approach makes it extremely difficult to take lawful decisions to make changes to a local health economy because every set of local GP commissioners effectively has a veto to stop change in local services. The only responsible approach by politicians is to make the case for change and to emphasise that decisions about the most clinically effective arrangements for local health services must, at least in the first instance, be for medical and managerial professionals. It may be too much to ask the public to accept that the NHS should be focused on healthcare services and not institutions, but opposing every NHS reconfigura­tion is a political cul-de-sac.
  2. Decisions about configuration of local NHS services must involve multiple CCG areas in order to be effective. The NHS Act 2006 does not recognise the term ‘NHS local economy’ but decision making on configuration of local NHS services is rarely effective if confined to a single CCG area. Thus new legal structures needed to take these decisions must treat the local NHS commissioners as participants and consultees, but ultimately cannot give a veto to each individual CCG.
  3. Reconfigurations of NHS services are afflicted by timidity, delay and uncertainty. The legal structures an incoming Secretary of State should create for taking these decisions should therefore allow NHS England to initiate the process rather than waiting for the local NHS politics to be sufficiently acute to allow a change programme to be examined, provide for clear timetables, and allow (as now) for expert advice and validation to any change plans, but then require swift implementation.
  4. The role of the Secretary of State for Health as the appellate body for the final decision (on referral from the local authority committee) may need to be reconsidered. Is it a proper use of the Secretary of State’s time to take a decision about the future of a local A&E unit and/or does it unnecessarily ‘politicise’ the process? Or is a final appeal to the Secretary of State a feature of his or her political accountability for NHS services? There are fine arguments both ways but there is a compelling argument that any appellate decision by the Secretary of State or an appellate body should be taken within a short time period (of say three months).

Investing properly in NHS commissioning

Doctors and other medical professionals work with skill and dedica­tion to treat their patients. But without effective commissioners the NHS does not know whether the treatments being provided are either clinically effective or cost-effective, or whether doctors are pursuing a course of treatment which is neither. The only justification for the commissioner/provider divide is that NHS commissioners are able effectively to represent both the patient (but to be more informed than many patients) and the taxpayer to ensure that all NHS care is being delivered in a way that is both clinically effective and cost-effective. But there is precious little evidence that this is happening or has ever happened. The ‘world class commissioning’ programme aimed to achieve this and was widely welcomed, although it was discontinued by the present government before reaching its potential and, of course, many if not most of those who were part of the programme are no longer working in the NHS. In March 2010 the House of Commons Health Select Committee observed:

The key question is whether WCC [world class commissioning] will be enough to address the enduring weakness of commissioning. Although WCC seeks to bring about a ‘step change ‘in the capacity and capability of PCTs to act as effective commissioners, some witnesses thought that the enduring weakness of commissioning was unlikely to be addressed by WCC alone.

The answer from the Committee to that question was that WCC was not sufficient, of itself, but it was part of the answer in developing an NHS that commissions care in an effective manner. A new Secre­tary of State should explicitly recognise that effective commissioning is a difficult, technical process that requires attention to detail and the confidence to confront clinicians. The present structures deliver greater clinical involvement in commissioning and it is possible that this will deliver more effective commissioning. But that will only become a reality if both GPs and secondary care consultants recog­nise and respect the role of commissioners, which in turn needs an enhanced role and status for commissioners. The NHS thus needs politicians who abandon the lazy rhetoric of ‘manager bashing’. A key role for the new Secretary of State will be to promote the role of those who speak up on behalf of patients and the taxpayers in the NHS system – namely the commissioners. Either that or to abandon the whole commissioner/provider divide as a waste of time and money.

Tackling postcode prescribing

The NHS has never given patients a legal right to the same level of medical treatment anywhere in the country. Decisions about what medical treatment a patient is entitled to as part of NHS funded healthcare are decisions of local NHS units, with patients being subjected to ‘postcode prescribing’. Variation between policies of different NHS commissioners is thus both lawful and inevitable. Thus a patient who is registered with a GP in Stoke can be entitled to a life-saving bariatric surgery operation with a threshold body mass index of 35, whereas patients would lawfully require a BMI of 50 in neighbouring North Staffordshire. The creation of the National Institute for Health and Clinical Excellence (NICE) was designed to inch the NHS in the direction of a national service as a result of directions made in 2003 which required PCTs to fund treatments recommended in NICE Tech­nology Appraisal Guidance. However, only a tiny number of treat­ments have been taken through the laborious NICE process. Even then, there are legitimate complaints that NICE decisions involve a process of decision making that is focused solely on the individual treatment in question and does not properly ask how that proposed investment fits into a scheme of local or national priority-setting.

There are two interconnected problems when attempting to tackle postcode prescribing. First, the NHS cannot afford to ‘level up’. Any expansion of mandatory treatment rights would inevitably result in local NHS commissioners being unable to afford other treatments that they currently fund, which would be presented as ‘cuts’. Second, a politician cannot ever be seen directly to take a ‘prioritisation’ decision because those who are denied any item of care will loudly cry foul in the media. The answer to this age-old problem may be for the Secretary of State to set a much more detailed framework and to influence NHS England (via the Mandate if needed) to impose much greater standardisation of commissioning policies across CCGs, thus reducing the more glaring disparities. However, in the end difficult decisions on which treatments are to be made available to which patient groups face formidable difficulties if they fall to be taken by anyone who directly faces election by the public.

Joining up healthcare and social care

The Shadow Secretary of State for Health, Andy Burnham, is presently discussing the most effective way to join up health and social care so that, particularly for the elderly, it becomes about care services and not whether these are health or social care services. There are obvi­ously difficult issues about funding such a service and worries about meeting the cost of the increased demand that such a service change would trigger. However if an incoming Secretary of State was minded to expand the social care services that could be provided free at the point of use, there is an established mechanism that could be used to bring this about without the need for primary legislation. Section 3(1)(e) of the NHS Act 2006 provides that CCGs must provide such ‘other services’ as part of the NHS as the group considers are ‘appropriate as part of the health service’. This is the power that is used by the NHS to fund social care and accommodation costs of patients who are eligible for NHS Continuing Care. The process that CCGs are required to follow to decide whether a person is eligible for social care (as part of NHS funded care therefore free at the point of use) is set out in regulations, which currently require CCGs to follow the National Frame­work for NHS Continuing Care in making decisions as to where the health/social care boundary lies. This boundary is crucial for patients as it defines the boundary between services that are provided free of charge and those that are provided on a means-tested basis. However, if a future Labour Secretary of State wished to expand the areas of social care that were to be provided without charge, this appears to be the most appropriate mechanism to do so. Adding care services which can be delivered under section 3(1)(e) to include a greater level of social care (and thus making them free at the point of use) would deliver on a joined-up service without major structural reorganisation.

Becoming Secretary of State for Health in a Labour government is both the best and the worst job in government. It is the best because the NHS is so close to the heart of the Labour Party, and is the worst job for the same reason. The above are a series of practical steps that an incoming Labour government could take to regain control over the NHS, restore it as a politically accountable public service and to stop the slide towards the NHS becoming a state-funded healthcare insurance system.

Summary of principal recommendations

  • To restore the Secretary of State’s power to issue directions to NHS England, and in turn to give NHS England the power to issue directions to any public (or private) body delivering NHS services.
  • To change the law so that all arrangements between NHS commissioners and providers for the delivery of services to NHS patients are set up as ‘NHS contracts’ and not as legally binding contracts.
  • To create legal structures that can take binding decisions on NHS acute service reconfigurations against a fixed timetable.
  • To invest properly in NHS commissioning.
  • To tackle postcode prescribing.
  • To join up healthcare and social care by, in the first instance, expanding the ‘other services’ that can be commissioned under s. 3 of the NHS Act.

This article first appeared in Law Reform 2015, published by the Society of Labour Lawyers, and is reproduced by kind permission of the author.

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Health and Social Care Briefing – November 2014

ACTS

The Assembly has to date passed the following Acts of relevance to the health and social care community.

Food Hygiene Rating (Wales) Act 2013 – 4th of March 2013

This Act includes provision for food authorities to operate a food hygiene rating scheme and places a duty on food businesses to display their food hygiene rating at their establishment.

Human Transplantation (Wales) Act 2013 – 10th of September 2013

This Act aims to increase the number of organs and tissues available for transplant by introducing a soft opt-out system of organ and tissue donation in Wales.

Active Travel (Wales) Act 2013 – 4th of November 2013

This Act places a requirement on local authorities to continuously improve facilities and routes for walkers and cyclists and to prepare maps identifying current and potential future routes for their use.  The bill will also require new road schemes to consider the needs of pedestrians and cyclists at design stage.

National Health Service (Finance) (Wales) Act 2014 – 27th of January 2014

This Act changes the current financial duties of Local Health Boards (LHBs) under the National Health Services (Wales) Act 2006 from an annual statutory requirement for expenditure not to exceed resource limit, to a regime which considers the financial duty to manage its resources within approved limits over a 3-year period.

Social Services and Wellbeing (Wales) Act 2014 – 1st of May 2014

This Act aims to provide, for the first time, a coherent Welsh legal framework for social services.  It will ensure a strong voice and real control for people, of whatever age, enabling them to maximise their wellbeing.  It will set the legal framework and infrastructure to transform services to meet changing social expectations and changing demography.

Consultation has begun on the first tranche of regulations and codes:

http://wales.gov.uk/consultations/healthsocialcare/part11/?lang=en

http://wales.gov.uk/consultations/healthsocialcare/part-3-and-4/?lang=en

http://wales.gov.uk/consultations/healthsocialcare/part2/?lang=en

http://wales.gov.uk/consultations/healthsocialcare/part7/?lang=en

Consultation closes on the 2nd of February 2015.

Housing (Wales) Act 2014 – 17th of September 2014

The key purposes of this Act are to:

  • Introduce a compulsory registration and licensing scheme for private rented sector landlords and letting and management agents;

  • Reform homelessness law, including placing a stronger duty on local authorities to prevent homelessness and allowing them to use suitable accommodation in the private sector;

  • Place a duty on local authorities to provide sites for Gypsies and Travelers where a need has been identified.

  • Introduce standards for local authorities on rents, service charges and quality of accommodation;

  • Reform the Housing Revenue Account Subsidy system;

  • Give local authorities the power to charge 50% more than the standard rate of council tax on homes that have been empty for a year or more; and

  • Assist the provision of housing by Co-operative Housing Associations. 

Legislation in Progress – Bills

Recovery of Medical Costs for Asbestos Disease (Wales) Bill

The purpose of the Bill is to enable the Welsh Ministers to recover from a compensator (being a person by or on behalf of whom a compensation payout is made to or in respect of a victim of asbestos related disease), certain costs incurred by the NHS in Wales in providing care and treatment to the victim of the asbestos-related disease.

This Bill is currently at post-stage 4.  The Counsel General has written to the Chief Executive and Clerk of the Assembly to advise that the Bill will be referred to the Supreme Court for a decision relating to legislative competence.

The Wellbeing of Future Generations (Wales) Bill

The key purposes of the Bill are to:

  • Set a framework within which specified Welsh public authorities will seek to ensure the needs of the present are met without compromising the ability of future generations to meet their own needs (the sustainable development principle),

  • Put into place well-being goals which those authorities are to seek to achieve in order to improve wellbeing both now and in the future,

  • Set out how those authorities are to show they are working towards the well-being goals,

  • Put Public Services Boards and local well-being plans on a statutory basis and, in doing so, simplify current requirements as regards integrated community planning, and

  • Establish a Future Generations Commissioner for Wales to be an advocate for future generations who will advise and support Welsh public authorities in carrying out their duties under the Bill.

This Bill is currently at stage 1 where the Environment and Sustainability Committee are considering the general principles.  Stage 2 proceedings should be completed by the 6th of February 2015 subject to the general principles of the Bill being agreed by the Assembly.

Gender Based Violence, Domestic Abuse and Sexual Violence (Wales) Bill

The provisions of the Gender-based Violence, Domestic Abuse and Sexual Violence (Wales) Bill are intended to ensure a focus across the public sector on the prevention of these issues, the protection of victims and the support for those affected by such issues.

The Bill places duties on the Welsh Ministers, County and County Borough Councils (“Local Authorities”) and Local Health Boards to prepare and publish strategies aimed at ending domestic abuse, gender-based violence and sexual violence. The Bill further provides a power to the Welsh Ministers to issue guidance to relevant authorities on how they should exercise their functions with a view to contributing to ending domestic abuse, gender-based violence and sexual violence. The Bill contains provision for the appointment of a Ministerial Adviser.

This Bill is currently at stage 1 and has been referred to the Communities, Equality and Local Government Committee, to consider and report on the general principles.  Stage 2 proceedings should be completed by 6th of February 2015 subject to the general principles being agreed by the Assembly.

Future Bills (of interest)

Regulation and Inspection (Wales) Bill

A separate Bill to the Social Services (Wales) Bill to cover the regulation and inspection of the social care workforce, training and social care services in Wales.

The Government published a white paper on the 30th September 2013. A draft Bill will be laid before the Assembly for consideration in 2015. Ministerial statement

Safe Staff Nursing Levels (Wales) Bill

This is a proposed member Bill from the leader of the Welsh Liberal Democrats, Kirsty Williams AM.

The Bill seeks to enshrine minimum nurse to patient ratios in law to ensure that there are sufficient numbers of staff within the NHS to provide safe care at all times.

This legislation would require the government to produce regulations which set a minimum staffing level for nurses in Wales. These regulations would be required to set minimum nurse staffing levels for each different acute and specialist service. I am also mindful to include a requirement for the regulations to address the complexity of patients’ needs and on the skills mix in a hospital.

The legislation would also give the government the power to issue similar regulations for community nursing, but only when they considered that sufficient evidence exists to support regulations in this area.

Health and Social Services Committee will scrutinise the Bill in early 2015 with a date set of March 5th 2015 for a debate in Plenary on this Bill.

Possible Bills

Public Health (Wales) Bill

To provide the legislative basis for delivering improved life expectancy, wellbeing and reducing health inequality in Wales as promised both in the manifesto and in the policy document ‘Fairer Health Outcomes for All’.

A Green Paper consultation ended February 2013.  This consultation was to collect views about whether a Public Health Bill is needed in Wales. The White Paper was published in April 2014 including measures on minimum pricing for alcohol and restricting the use of e-cigarettes.  It closed on the 24th of June 2014.  The Welsh Government intends to introduce this Bill before the summer recess of 2015.

1 Comment

Encouraging the maximum level of minimal participation

Colin Crouch Post Democracy, 2004

 INTRODUCTION

 Over the last thirty years free market ideologues have worked behind the scenes to dismantle the NHS (ref 1 ; ref 2). Thanks to their efforts, the NHS in England is now a full blown market, free to flourish unfettered by political interference and public scrutiny. Under the 2012 Health and Social Care Act,  the Secretary of State no longer has the fundamental duty to provide or secure a comprehensive health service. Clinical commissioning groups (CCGs) are responsible for commissioning and (rationing) services instead. And their duty is to commission services to ‘meet all reasonable requirements’ for their patients, not to provide communities with a comprehensive range of services (Ref 3).

Accountability arrangements that allow the ability of citizens and their representatives to hold their governments to account, by rewarding or punishing them, have the ability to constrain abuse of political power, as well as the potential to improve service delivery (ref 4). But under the Act, commissioners as well as providers of NHS funded services no longer answer to the Secretary of State. Instead, they are accountable to unelected, independent regulators[1]. And their role is to deregulate the NHS, to promote competition and private sector involvement.  As a result, market forces, not the Secretary of State, now determine which organisations provide NHS funded services, which providers survive and which providers fail and have to close. In this way, the 2012 Act detaches the government from responsibility – and blame – and, by removing the ability of citizens to hold the Secretary of State to account, radically reduces democratic accountablility in the NHS.

Less well recognised but similarly  significant is how the Act and related legislation removes the accountability of NHS organisations downwards, to local communities and their representatives. The NHS Plan in 2000 included a concordat welcoming the private sector into the NHS, Since then, successive health ministers have acted (i) to weaken accountability to local communities and their representatives (ii) to promote, instead, engagement with individual patients or ‘consumers’ and (iii) to limit the public scrutiny of NHS funded health care premises.  Such tactics are required to smooth the way for privatisation. Private firms are accountable to shareholders, not to local communities. And to safeguard shareholder profits, firms require protection from undue scrutiny. Weak accountability mechanisms, with no means of redress for citizens, are desired because they are not a threat to corporate interests. In fact, privatisation would not have succeeded without the loss of accountability to local communities and their representatives.

Between 1974 and 2003, Community Health Councils (CHCs) represented the interests of NHS patients in each district health authority.  Their performance varied from district to district. But, importantly, all had the statutory powers and  independence necessary, if they so wished, to keep their residents fully informed and to hold the local health service properly to account.

Many deserved the accolade:

CHCs are a jewel – that is not well understood….There is nothing like it in the rest of Europe, where it is the administrators and doctors who decide” Mikko Vienone, World Health Organisation European regional advisor (HSJ 23rd July 1998) .

CHCs were independent of health service management, free to keep the public fully informed and supported by officers who were accountable to them and not to the Regional Health Authorities, their paymasters. CHCs’ wide range of statutory duties and rights allowed them to form an overview of the whole of the health service in their area and to understand how patients might be affected, directly or indirectly, by proposals for change. Their statutory powers included (i) the right to information (ii) the right to visit and inspect health service premises (iii) the right to be consulted on any proposals for substantial variation or development of the health service in their area (iv) the right to refer disagreements with the health authority or concerns about the conduct of a consultation to the Secretary of State.  Their statutory duties were to (i) monitor the operation of health services across the health authority (ii)  provide the public with information (iii)  advise and support patients with complaints (iv) make recommendations for service improvements (v) hold meetings in public and publish an annual public report.

It was the ability of CHCs to keep patients and the public fully in touch with what was happening to local health services that contributed to their downfall. For example, the monitoring exercise ‘Casualty Watch’ whereby CHCs across England simultaneously recorded waiting times in the A & E departments of their local hospitals, and then published their findings, greatly annoyed health authorities and hospitals with the longest waiting times. In the late 1990s, a public row broke out when a Birmingham CHC informed its residents why it had decided to oppose plans for a new PFI hospital. The Regional Health Authority told  CHC members to either work within government policy or resign. And in Parliament,  a Birmingham MP led the first call for CHCs to be abolished. In response, the CHC proposed a motion calling for PFI to be abandoned in the NHS at the 1999 AGM of the Association of Community Health Councils for England and Wales (ACHCEW). It became  CHC national policy, with overwhelming support. The last straw, according to historian Charles Webster (ref 1) was probably the demand from ACHCEW that CHCs should play a central role in primary care and act as a bridge between the public and the New Primary Care Trusts. In retrospect, it was not surprising when, in July 2000, the NHS Plan was published  and CHCs learnt from a single sentence that they were to be abolished. Nor was it a co-incidence when shortly afterwards, in October 2000, the Department of Health (DH) announced plans for a concordat with the private sector. The removal of effective public scrutiny, had opened the door for the DH to encourage the private sector to play a central role in the NHS.

CHCs were finally abolished in 2003 (National Health Service Reform and Health Care Professions Act 2002 s.22). Their functions were broken up and divided between new statutory bodies – overview and scrutiny committees (OSCs), patients forums (PFs) , patients’ advice and liaison service (PALS), an independent complaints service and the commission for patient, public involvement in health (CPPIH) – none of which retained the CHCs’ ability to acquire and develop an overview of health services in their area. Only one, OSCs, had the right to be formally consulted on proposals for substantial changes to health services and the power to refer disputes to the Secretary of State.

OSCs are cross-party committees of elected councillors set up by Local Authorities with social services responsiblities (Local Government Act 2000 s. 21, as amended by s.7 of Health and Social Care Act 2001). OSCs did not and still do not have the right to  visit premises and inspect health services for themselves. Patient Forums were small committees based in NHS hospital and primary care trusts (NHS Reform and Health Care Professions Act 2002 s.15(1)). They had a range of statutory rights including the right to information and the right to visit NHS and private sector premises. But their powers were restricted to the trusts in which they were based. The CPPIH represented the views of Patient Forums to government. After three years Patient Forums and the CPPIH were abolished and replaced by Local Involvement Networks (LINks) (Government and Public Involvement in Health Act 2007) . These were replaced, in turn, by local Healthwatch and Healthwatch England, under the 2012 Act.

During the years of upheaval, patient representatives lost their collective voice as citizens with wide ranging statutory rights. Instead, they metamorphosed into consumers or rather, ‘consumer champions’ tasked with collecting information about patients’ experiences and reporting these to commissioners and providers in the expectation they would improve services  and hence patient satisfaction with the services on offer.  Local Healthwatch organisations inherited the power held by LINks to visit and inspect health service premises. But, their independence and freedom to speak out has been curtailed, culminating in the establishment of Healthwatch England as a subcommittee of the Care Quality Commission.

Running parallel with the above changes was a new duty placed on all health service bodies to involve and consult in an on-going way with health service users or potential users on (a) the planning and provision of services (b) changes in the way services are provided and (c) decisions affecting the operation of services (Health and Social Care Act 2001 s.11(1)).  Since then, the duty to involve individual ‘users’ has had greater emphasis in official documents than the duty to consult with democratically elected OSCs. This is probably because individual patients lack statutory rights and so cannot pose a threat to health service planners or to private sector interests. Health service managers dictate the terms of the engagements and individual patients have no means of redress, apart from judicial review, if they are refused information or if their views are disregarded.

The following paper reviews the current law regarding public consultation in the NHS in England and describes how the loss of political accountability and public scrutiny has gone hand in hand with privatisation.

  1. PUBLIC CONSULTATION -TWO LEGAL DUTIES

NHS bodies have two legal duties to consult when proposing changes to the  way local health services are provided, operated or developed. They are:

(A) The duty to consult with local authorities (LAs) on proposals for substantial development of or substantial variation in the provision of local health services.

(B) The duty to consult and involve patients and the public in an ongoing way, not just when major changes are proposed.

The duties apply to all relevant NHS bodies i.e.:

  • The NHS Commissioning Board (NHS England)
  • Clinical commissioning groups (CCGs)
  • Providers of health services commissioned by the Board, CCGs and the LA, including NHS trusts, NHS foundation trusts (FTs) and providers from the voluntary and private sectors.

NHS England and CCGs are responsible for conducting public consultation when they fund the services under consideration.

Consultations, according to case-law, must must be carried out properly, whether statutory or not i.e.

  • Be undertaken when plans are at a formative stage.
  • Include sufficient reasons / information to allow for an intelligent response.
  • Allow adequate time for an intelligent response.
  • Public responses must be conscientiously taken into account when the final decision is made (Ref: R v Brent ex parte Gunning (1985); (see also 5.1)
  1. CONSULTATION WITH LOCAL AUTHORITIES

2.1 Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013: Part 4: Health Scrutiny by Local Authorities

2.11 Key Points

 

The regulations should be read in conjunction with statutory guidance, published in June 2014 (ref 6). The Local Authority Overview and Health Scrutiny Regulations 2002 and 2004 are no longer in force .

Under the 2013 regulations, OSCs when appointed can carry out a wide range of roles (regulation 28). The latter are called relevant functions  (regulation 20(1)) and  include:

  •  The review and scrutiny of any matter relating to the planning, provision and operation of the health service in its area (regulation 21).
  • The making of reports and recommendations to NHS bodies responsible for the services under scrutiny or to other interested parties e.g. local healthwatch (regulation 22). Recipients must respond within 28 days when the OSC requires a response.
  • Responding to consultations on any proposal for a substantial development or substantial variation of the health service in the LA area (regulation 23)
  • Requiring members or employees of NHS bodies to attend LA meetings and answer questions (regulation 27).
  • Under regulation 26, ‘responsible persons’ (i.e. relevant bodies (see above) plus GPs, and providers of other primary care services) have a duty to provide a local authority “with such information about the planning, provision and operation of local health services as it may require to discharge its health scrutiny functions”.

Information requests may include:

  • Financial information about the operation of a trust or CCG, for example budget allocations for the care of certain groups of patients or certain conditions.
  • Capital allocations for infrastructure projects, such as community facilities.
  • Management information such as commissioning plans for a particular type of service.
  • Operational information such as information about performance against targets or quality

Although local authorities have the right to request such information, they have no enforcement powers outside the formal consultation process and no power of veto over health service plans (see below).

2.12 Consultation Process (Regulation 23)

Regulation 23  dictates that :

  •  NHS bodies must consult with LAs on proposals for substantial development of or substantial variation in the provision of local services. Substantial is not defined but is expected to encompass reconfigurations, involving a final set of proposals; any configuration options within those proposals, as well as specific changes to individual services (Ref 7).
  • NHS bodies are not required to consult where a decision has to be taken quickly to avoid a risk to the safety or welfare of patients or staff NB: not for financial reasons. Consulting bodies must inform the LA immediately and give the reasons why they have decided not to consult.
  • A LA must inform the NHS commissioner or provider concerned, if it chooses not to respond to a consultation or make a recommendation.
  • A LA must submit  its response and any recommendations it may make by a date specified by the NHS commisioner or provider.
  • NHS bodies and LAs that do not agree about a recommendation, must take all reasonable steps to try to reach agreement.

The 2013 regulations affect the process of consultation in several important respects:

  • The regulations apply to LAs themselves as opposed to overview and scrutiny committees (OSCs), as previously.
  • A local authority is not required to appoint an OSC. They may choose to do so, however, or make other arrangements e.g. appointIng committees involving members of the public.
  • In consultations on substantial changes, a local authority will be allowed (under regulation 23) to delegate the power to refer objections to the Secretary of State, both to (a) OSCs, or (b) to joint scrutiny committees (where proposals affect services operating across LA boundaries}, but not to other committees.
  • The local authority as a whole has the power to make a referral when it has not delegated that power to an OSC or joint scrutiny committee. Many LAs fear this will lead to the politicisation of the referral process, if council members vote along party lines. However, other LAs already follow this procedure without encountering problems (Ref. 5).
  • The referral process is much more exacting than before. As a result, LAs or OSCs may be deterred from going down this route (see 2.13).
  • The 2014 Guidance stipulates that NHS organisations and Health and Wellbeing Boards[2] should engage with LAs or OSCs at an early stage, before plans are well developed. It argues that LAs or OSCs are, then, less likely to refer objections to the Secretary of State when consulted on a final proposal.

The aim of the guidance is to reduce the number of LA referrals to the Secretary of State and thereby the number of delays. However, LAs seem to be making the same number of referrals as before. Between February 2013 and May  2014, the SoS transferred 13 LA referrals to the Independent Reconfiguration Panel (see 2.14) compared with 10 transfers between January 2010 and January 2011.  It is a tribute to LAs that they continue to exercise their right of referral, despite of the exacting regulations.

2.13 Referral Process Regulation 23 (9)

 Where all attempts to reach a local resolution have been exhausted, a LA or OSC may refer a disputed proposal to the Secretary of State (SoS) for a decision. Formerly, in consultations between LAs and NHS Foundation trusts (NHS FT ) disputes were referred to Monitor, the FT regulator. Now all disputes are referred to the SoS.

Under regulation 23(9)  a LA can make referrals to the Secretary of State where:

  •  Consultation has been been inadequate in terms of content (information provided) or time
  • The reasons given by a NHS body for not consulting (see above) are inadequate
  • Where the LA considers the proposal would not be in the interests of the local health service.

Referrals reports  must now include:

  • An explanation of the proposal to which the referral report relates.
  • An explanation of the reasons for making the referral
  • Evidence in support of these reasons.
  • Where the proposal is referred because of inadequate consultation , the reasons why the LA or OSC is not satisfied of its adequacy.
  • Where the proposal is referred because there was no consultation for reasons relating to the safety or welfare of patients or staff, reasons why the LA or OSC is not satisfied that the reasons given for lack of consultation are adequate.
  • Where the LA or OSC believes that proposals are not in the interests of the health service in its area, a summary of the evidence considered, including any evidence of the effect or potential effect of the proposals on the sustainability or otherwise of the health service in the area.
  • An explanation of any steps the LA has taken to try to reach agreement with the relevant NHS body or health service provider.
  • Evidence that the LA has complied with the requirements which apply where a recommendation has been made.
  • Evidence that the LA has complied with the requirements which apply where a recommendation has not been made, or where no comments have been provided.

According to the 2013 guidance (Ref. 6), referrals to the Secretary of State should follow the terms of reference of the Independent Reconfiguration Panel (IRP, see below) i.e. whether a proposal would provide safe, sustainable and accessible services for the local population. However, the regulation that specifically requires a LA to consider financial sustainability (e.g. looking at opportunities a proposal offers to save money for use elsewhere in the health service) could become an obstacle for LAs or OSCs wishing to object to plans when the latter are based, primarily, on the  need to save money.

2.14 The Secretary of State’s decision (Reg 25)

On receiving a LA referral the Secretary of State may, where appropriate:

  • Make a decision relating to the subject matter of the referral, where the LA considers consultation has been
  • Make a final decision on a proposal, where the LA considers a proposal is not in the interests of the lthe local health service.
  • After making a decision, give directions to the Board (NHS England) as to how it should exercise its power to direct a CCG in relation to the proposal.

The  Board may direct a CCG to:

  • Consult (or consult further ) with the LA in relation to the proposal
  • Determine the matter in a particular way.
  • Take or not to take any other steps in relation to the matter.

The above directions conflict with the duty of NHS England to undertake formal assurance of proposals put forward by CCGs. In the formal assurance process, area teams help CCGs from an early stage to develop ‘robust, evidence–based plans that are underpinned by effective patient and public engagement ‘(Ref 7). However, under regulation 25, it seems NHS England could be compelled to instruct CCGs to alter plans which it has already assessed and approved.

The Independent Reconfiguration Panel (IRP)

The IRP is an advisory public body set up in 2003 by the DoH to review proposals for change on behalf of the Secretary of State (Ref 8). On receiving a referral from a LA and before making a decision, the Secretary of State may ask the IRP to review the matter and provide him with advice. After the IRP has made an initial assessment, the Secretary of State will decide which referrals the IRP should review in full.  The IRP also offers pre consultation advice and support to NHS bodies on the development of local proposals for reconfiguration or significant service changes – including advice and support for public engagement and formal public consulation.

In 2010, the IRP  published a paper, based on its own reviews, setting out seven main reasons why LAs make referrals to the Secretary of State (Ref 9). These include:

  • Inadequate community and stakeholder engagement in the early stages of planning change.
  • The clinical case has not been convincingly described or promoted.
  • Clinical integration across sites and a broader vision of integration into the whole health community has been weak
  • Proposals that emphasize what cannot be done and underplay the benefits of change and plans for additional services
  • Important content is missing from reconfiguration plans and limited methods of conveying information.
  • Health agencies caught on the back foot about the three issues most likely to excite local opinion – money, transport, and emergency care
  • Inadequate attention given to the responses during and after the consultation

NHS bodies must provide LAs with enough information to enable them to make an informed response to a consultation. If the information they require is refused, they have the right to  refer the matter to the SoS. In 2010 two strategic health authorities, London and Humber and North Yorkshire, based on DoH guidance, set out in detail what  constitutes ‘necessary information’ in a consultation. (Ref 10&11). LAs should be aware they have the right to such information before responding to a consultation.

2.15 Exemptions from duty to consult (Reg 24)

Regulation 23 , the duty to consult with LAs, does not apply to:

  • Any proposal to establish or dissolve an NHS trust or clinical commissioning group or to vary the constitution of such a group (unless they involve a substantial development or variation, as set out in reg 23(1)).
  • Any proposals contained in a trust special administrator’s report or draft report (NHS Act 2006 s. 65F or 65I)
  • Recommendations by a health special administrator on the action which should be taken in relation to a health special administration order (NHS Act 2012 s.128).

Special administrators

The 2012 Act provides for two special administration regimes (a) health special administration, applying to companies providing NHS funded services and (b) trust special admistration, applying to NHS FTs. The latter regime will eventually replace the special administration regime run by the DoH for NHS trusts, as the latter are expected to be licensed as FTs or merged with existing NHS FTs sometime this year.

Trust special administrators (TSAs), are called in by Monitor to manage insolvent foundation trusts.Their role is to draw up plans to enable trusts to clear their debts and to ensure the continued provision  of ‘commissioner requested services’ i.e. essential services, which commissioners and providers have previously agreed must continue to be provided locally to protect the patients of a failing provider. However, when a trust is under administration, it is the administrators, not commissioners, who are formally responsible for defining which services should continue to be provided (designated location specific services at this stage). They are expected to do this in consultation with commissioners (ref 12). However, when commissioners do not agree with a TSA’s recommendation but the NHS Board does, the TSA can submit its recommendation to Monitor  over the heads of commissioners (Health and Social Care Act 2012 s.176 (1076)).  The same process for identifying location specific services will eventually apply to private sector health special administrators.

The TSA must reach its decision rapidly. It has 100 working days in which to publish a final recommendation, with only 30 working days in that period allowed for consultation. (Ref 13).

Statutory Timescale for TSAs

Stage 1. Monitor lays order before parliamen for the FT concerned to be placed into trust  special administration. Monitor appoints TSA (insolvency practitioner)  Within 5 working days

Stage 2. TSA begins. Takes over the role of FT governors, chairman and board of directors  Within 45 working days

Stage 3. TSA has to agree draft recommendations with CCGs and NHS England; publish and provide Monitor with draft report containing recommendations for his action. Monitor lays draft report before parliament.  Within 5 working days

Stage 4. TSA must start 30 day consultation on draft report, including holding a meeting with staff or their representatives  and a separate meeting with other parties wishing to attend. TSA requests written responses from NHS England; CCGs; LAs and LA scrutiny functions e.g. OSCs; IRP; Local Healthwatch; Health and Wellbeing board and local MPs. TSA must hold separate meeting with NHS England and CCGs.  Within 15 working days of consultation ending

Stage 5. TSA agrees final recommendation with CCGs  and /or with NHS England and presents final report to Monitor. Monitor lays report before parliament  Within 20 working days

Stage 6.  Monitor decides what action it plans to take and notifies SoS

Stage 7. SoS vetoes action plan in exceptional circumstances

Stage 8. Monitor publishes notice of decision and lays it before parliament. Monitor implements proposal.

TSA’s recommendations are designed to enable trusts to clear their debts. The are not designed to meet the needs of patients. Reconfigurations outside the special administration process (and not subject to a statutory timetable) commonly take several years to formulate and implement (Ref 14). According to NHS England (ref 7):

“Developing, explaining and implementing proposals takes time, collective effort and energy…..

The stronger proposals are those developed collaboratively by commissioners, providers, local authorities and patients and the public. This will ensure that proposals are sound, evidence based, in the best interests of patients, will improve the quality and sustainability of care and that people affected will be involved and their feedback will be listened to and acted upon’.

 The freedom  of TSAs to ignore the needs of patients in this way has serious implications, not only for the care of patients, but for the wider health economy. It could also leave the SoS open to legal challenge if he/she approves a TSA’s plan that demonstrably increases health inequalities (2012 Act s.4) or is not supported by evidence (2012 Act s.6).

Clause 118 of the Care Act

Clause 118 in the Care Act gives TSAs new powers to reconfigure, close or transfer services from a neighbouring  trust in order to balance the books of a failing trust (Ref 14). The new clause  follows the failure of the SoS to win high court approval for his decision to support a TSA plan to close the A&E department of Lewisham  Hospital in order to balance the books of South London Healthcare Trust . Clause 118 was approved in parliament on March 11th 2014.

Before the vote on March 11th, the government agreed to publish new guidance to the effect that TSA plans should have the approval of local CCGs before they are implemented. The amendment is very likely to have won votes for clause 118, especially as it could also bring back the likelihood of public engagement. However, publishing guidance, rather than amending the law, still leaves the door open for TSAs and NHS England to continue as before. All NHS organisations (including NHS England) must have regard to statutory guidance. But, ‘having regard too’ does not mean they are bound to follow the guidance in every case. Rather they must have good reasons for not following it.

On May 7th, following a campaign by the pressure group ’38 Degrees’, the government finally introduced an amendment to the Care Bill, during its passage through the House of Lords. The amendment to clause 118, submitted originally by Baroness Finlay, gives the CCGs of any affected trust, as well as the CCGs of the trust under administration, the right to engage with the TSA and respond to its draft proposals. It also gives the CCGs of an affected trust 20 days in which to consult the public, if they so wish, when the final TSA report recommends changes to the services at their hospitals. The amendment does not cover the possibility that the TSA and CCGs may not be able to reach agreement. If they cannot, NHS England will have the final say, as before.

2.2 Duty of NHS FTs to consult  with local authorities

The coalition government decided that all NHS trusts should achieve foundation trust status in 2014 (Ref 13). The following information will then apply to all trusts in the public sector.

Prior to the 2012 Act, regulations required foundation trusts to consult with OSCs when:

  • They proposed to make an application to Monitor, the independent FT regulator, to vary the terms of their authorisation and
  • Where the application, if successful, would result in a substantial variation in the provision of “protected goods and services” i.e those a FT must provide under the terms of its authorisation (Communities Health and Standards Act 2003( NHS Foundation Trusts Order 2004).

Under the 2013 scrutiny regulations, commissioners, i.e. CCGs or NHS England, are responsible for carrying out consultations when they fund the services under consideration. When a provider has a development or variation “under consideration”, therefore, it will need to inform commissioners at a very early stage so that they can begin to consult as soon as possible.

In April 2013, following the 2012 Act, Monitor became the economic regulator for all providers of NHS funded care, including those from the private sector. Now foundation trusts, along with all other providers of NHS care, apart from NHS Trusts, are issued with a licence that sets out the terms under which they must operate. NHS FTs authorised before 2013 were automatically issued with a licence and their ’protected goods and services’ designated ‘commissioner requested services’ (CRS). Commissioner requested services are those commissioners define as being essential i.e. services that should continue to be provided locally if any individual provider is at risk of failing financially (Ref 12).

There is no formal requirement for CCGs to involve the public in deciding whether a service should be classified as a CRS or not. However, if a service is designated a non-CRS, it does not mean that patients do not need or value the service. Rather, commissioners believe suitable alternatives exist if the current provider stopped providing that service. Moreover, commissioners can change the designation of a service as circumstances change. For example, not all ‘protected goods and services’ are expected to retain their CRS status beyond the initial stage (Ref 12). The number of services categorised as ‘non-essential’ will also grow as new providers are encouraged to enter the market .

The licence requires NHS FTs to continue to provide ‘commissioner requested services’ and not to make material changes to the way in which they are provided without the agreement of commissioners. It follows that providers could change or stop providing non-commissioner requested services without the agreement of commissioners and, also, without public consultation. This is because changes to non-essential services, by definition, would not qualify as substantial and, therefore, would not trigger a requirement for providers or CCGs to consult  with LAs/OSCs. As more private companies enter the NHS,  more and more services could be defined as non-essential and, therefore, subject to change or closure over the heads of elected councillors and local people.

2.21 Role of NHS FT Governors

Boards of FT governors are responsible for holding non-executive directors to account individually and collectively for the performance of the Board of Directors. They must act in the best interests of their NHS Foundation Trusts and represent the members of the trust as a whole and the public. (Ref 16).

The 2012 Act provides FT governors with new duties and powers to approve significant transactions, mergers and acquisitions etc . For example:

  • Significant transactions must be approved by the majority of governors as well as the Board of Directors. Approval means that at least half of the governors voting agree with the transaction. The FT may include a description of ‘significant transactions’ in it’s constitution. They could include contract changes above a certain value (2012 Act s.167).
  • The council of governors must approve an application by the trust to enter into a merger, acquisition, separation or dissolution. In this case approval means at least half of all governors agree with the application.
  • The governors must decide whether or not the trust’s non-NHS activity interferes with its principal purpose, namely to provide goods and services for the health service in England. The council of governors must inform the Board of Directors of its decision.
  • Governors must approve any proposed increases in private patient income of 5% or more in any financial year. Approval means at least half of the governors voting agree with the increase. Governors must feel confident that the board has reached its decision effectively and with due regard to the interests of trust members and the public before giving their agreement. Governors are not expected to withold their consent on unreasonable grounds. When the final decision has been taken and once the chair has confirmed the decision is not confidential, the council of governors should inform the trust members and the public that the trust has decided to increase the intake of private patients.
  • Governors have a general duty to represent members of the trust and the public. But, unlike LAs, they have neither the power nor the means to do so. Governors are either chosen by a very small electorate of members, after putting their own names forward, or are staff representatives or stakeholders appointed by the FT. How they seek the views of their members and the public, in addition, is left up to them. Guidance from Monitor suggests this could include sharing information on the website, surveying their members, holding ‘drop in days’ or working alongside representatives of Healthwatch. Such methods could, perhaps, enable governors to act as ‘consumer champions’ for patients undergoing treatment at their hospital. They would not allow governors to determine how the policies of their FT are affecting the viability of other hospitals in the area. And the duties on FT governors do not increase public scrutiny. Governors do not have the right to inspect the premises of their own FT or the services it provides or a duty to meet patients and conduct quality reviews

Democraticically elected Local Authorities or OSCs do not have a formal role in the approval of significant transactions, mergers, acquisitions, dissolutions or, joint ventures of a FT with the private sector. Yet all of these can have a significant impact on trusts operating and risk profiles, according to Monitor . Between 2009 and 2012 the NHS Co-operation and Competition Panel reviewed 12 potential large scale mergers on behalf of Monitor and found that none would breach the trust’s authorisation, if implemented .

3 CONSULTATION WITH PATIENTS AND THE PUBLIC

3.1 Duty on providers and commissioners

Section 242(1B) of the NHS Act 2006, as amended by the Local Government and Public Involvement in Health Act 2007 (LGPIH Act) came into force on 3rd November 2008. It provides that :

Each relevant English body must make arrangements, as respects to health services for which it is responsible, which secure that users of those services, whether directly or through representatives, are involved (whether by being consulted or provided with information or in other ways) in-

  • The planning of the provision of those services.
  • The development and consideration of proposals for changes in the way those services are provided.
  • Decisions to be made by that body affecting the operation of those services.

  Subsections (b) and (c) need only be observed if the proposals would have an impact on:

  • The manner in which the services are delivered to users of those services or the range of health services available to those users.
  • The reference to the delivery of services is to their delivery at the point when they are received by users.

Formerly, 242(1B)  applied to Primary Care trusts and to Strategic Health Authorities  before they were abolished. The legal duty  under s.242(1B) now applies only to providers of NHS funded services i.e NHS FTs, NHS trusts and all independent sector providers.

The 2006 Act, as amended by the 2012 Act, makes similar provisions for public involvement and consultation by the Board (s. 23(13Q)) and by CCGs (s.26 (14Z2)).  For example, s. 23(13Q ):

(1) Applies to any health services which are or are to be provided pursuant to commissioning arrangements made by the Board (NHS England).

 (2) The Board must make arrangements to secure that individuals to whom the services are being provided or maybe provided are involved (whether by being consulted or provided with information or in other ways)-

  •  In the planning of the commissioning arrangements by the Board.
  • In the development and consideration of proposals by the Board for changes in the commissioning arrangements where the implementation of the proposals would have an impact on the manner in which the services are delivered to individuals or the range of health services available to them.
  • In decisions of the Board affecting the operation of the commisioning arrangements where the implementaion of the decisions would (if made) have such an impact.

The references in subsection (2)(b) is to the delivery of services is a reference to their delivery at the point when they are received by users.

Section 26 (14Z2)  has identical wording to s. 23 (13Q,)  but replaces ‘Board’ with ‘Clinical Commissioning Group’.  CCGs are required to include in their constitution the  principles and arrangements they will make under subsection 2.

A key difference between the two pieces of legislation is that, under the 2006 Act s.242(B), the duty to consult can be met by involving patients directly or through their representatives whereas under s.13Q and s.14 Z2 the duty to consult applies only to involvement with service users or potential users. The difference is not yet reflected in guidance on public involvement published by NHS England in 2013 which continues to refer to carers and representatives alongside users (Ref 7).  But it could potentially be used to prevent pressure groups or charities taking part in decision making or collective legal action such as judicial reviews (see 6.2).

3.12 Duty on commissioners to report

Under section s 26 (14Z15) of the Act, each CCG is required to publish an annual report on how it has discharged its duties, in particular, how it has involved users under s.14Z2 (see above). Each CCG must consult with its relevant Health and Well Being Board in preparing the report and hold a meeting to present the report to members of the public. NHS England will provide guidance for CCGs in time for reporting on the year 2015/16.

NHS England must also produce an annual report at the end of each financial year, including a report on how it has involved users under s. 23 (13Q) (see above).  The annual report will be laid before parliament and sent to the SoS. The SoS will respond to this with an assessment of the Board’s performance during the year.

3.2 Patient / Public involvement in Practice

The duty to involve users or potential users under 242(1B), 13Q and 14Z2 is a legal requirement  whether a LA   is consulted or not. It covers a whole range of activities, from  providing information, to seeking the views and experiences of users about specific services or conducting large  public consultations on major changes. Managers are advised in guidance (see below) to involve users from an early stage and choose methods proportionate to the impact plans would have if implemented .

In planning reconfiguration strategies, commissioners also are expected to engage with staff, patients and the public in a continuous way. After completion of a consultation on the strategy, commissioners can decide to consult again on specific configuration options. The latter process could include 12 weeks of  formal consultation, although under the Cabinet Office principles, a range of approaches could be employed  ( Ref 15).

Public/patient involvement is not a democratic process. Managers decide:

  • When to involve users
  • What level of involvement to use
  • Which users should be involved
  • What they should be told
  • How their views will be used
  • ow feedback will be provided

Unlike elected councillors, patients are not accountable to the wider community. They do not have a statutory right to information, other than through the Freedom of Information Act (see 5.22) and do not have the right to refer objections to the SoS if consultation has been inadequate or the proposals are against the interests of the local community.  Their only right of appeal, if they have been directly affected by an unlawful act or decision of an NHS body, is to  seek a judicial review through the courts (see section 6, below) . Despite the above, it is important for  campaigners to engage with NHS planners whenever the opportunity arises, not just to give their views as consumers but to find out and publicise what changes are being planned for the future.

3.21 Public involvement in Procurement

 3.22 DH Statutory Guidance October 2008  (Ref 13)

Nothing in legislation explicitly directs commissioners not to involve patients and the public in the procurement stage of commissiong. However, under s.242 (1B), s.14Z2 and s.13Q, above,  NHS providers and commissioners are not required to involve the public, where a proposal does not affect the way a service is delivered or the range of services available at the point of delivery. Guidance (Ref 17) published in October 2008 states, with respect to 242 (1B):

‘There is no requirement to involve users where proposals for change or a decision to be made by an NHS organisation, for example a change of provider, does not result in changes to the service that affect the way in which that service is delivered or the range of services available’

Thus NHS organisations are free not to involve or consult the public when putting existing services or reconfigured services (following formal consultations) out to tender.  As a result, when competition law was imposed on the NHS in April 2012 (NHS Act 2012 s.75) a period of unprecedented fast track NHS privatisations occured, over the heads of patients and local communities. For example:

On March 27 the Health and Social Care Bill received Royal Assent and became law.  With the ink barely dry on Her Majesty’s signature, the carving up of the NHS has begun. Virgin Care has won a £500 million contract to provide community services across Surrey …. and began running these sevices on 1st. April. What real choice did the people of Surrey have in who provided their community health services? The answer is none…. The choice was made by unelected, unaccountable bureaucrats who use “public consultation” as a fig leaf for fundamentally changing the nature of how healthcare is delivered.” (Max Pemberton,  The Telegraph, 9th April 2012 ‘Healthy competition in the NHS is a sick joke).

In 2012, in just seven days, community services worth £262m were put out to tender and privatised under  the new ‘any qualified provider” policy, without the public having a say.  In a quarter of the cases, PCTs stated they had no plans to tender before the government instructed them to do so (Guardian 4th October 2012).

By September 2013, services across the board, from maternity services to end of life care, including whole hospitals were in the hands of private firms. (Ref 18).

More recently NHS England turned its attention to privatising local enhanced services (LES) provided by GP practices. On 1st  January 2014, CCGs were instructed to put all their LES out to tender or procure them under any qualified provider (AQP) by April 2014, unless they  could prove the services could only be offered by a single commissioner. Figures suggest contracts worth a total of £18.6 m could be opened up to the markets with some GP practices losing as much as 10-15% of their income. Services such anticoagulant clinics, minor surgery and dementia support are all under offer without patients having a say (Ref 19).

3.23 NHS England Guidance 2013

The 2012 NHS Act did not amend or remove the duty on NHS trusts and NHS funded providers to consult with patients or their representatives under s.242(1B) of the 2006 Act. Instead, it has amended the 2006 Act to impose similar duties on NHS England and CCGs (see 3.1). So it seems reasonable to assume that the 2008 guidance would still apply, including the freedom it gives NHS organisations not to consult when offering existing services up to different providers. However in September 2013, NHS England published new statutory guidance[4] for CCGs, which included their duty to involve  patients and the public in the various stages of  commissioning, including procurement (Ref 20).

The 2013 guidance ‘Transforming Participation in Healthcare’ includes a diagram or ‘Engagment Cycle’ which describes key stages in the commissioning process for public participation. These are:

  • Community engagement to identify needs and aspirations
  • Public engagement to develop priorities strategies and plans
  • Patient and carer engagement to improve services
  • Patient and carer engagement to monitor services and
  • Patient, carer and public engagement to procure services (see overleaf)

The Engagement Cycle was originally developed 6 years ago by InHealth Associates on behalf of the DoH and Croyden PCT. Ironically (see below), it was designed to be used  by CCGs wishing to move “beyond ‘tick box’ engagement.”

The above diagram and text was downloaded from the internet in January 2014. By March 2014, the text had been re-drafted, apart from the points under ‘Contracts should specify’, which remained unchanged. Significantly, it no longer states that people should be directly involved in decisions about who provides services. Instead it refers to the need for clarity about patient representation on panels – their roles, terms of reference and support and training. The Cambridgeshire consultation, described below, illustrates how this guidance works in practice.

At the beginning of 2014, Cambridgeshire and Peterborough CCG was facing  a judicial review for refusing, on the grounds of commercial confidentiality, to release tender documents relating to a £800 million contract for community, mental health and hospital based services (Ref 21).

Law firm Leigh Day, acting for the campaign group ‘ Stop the NHS Sell Off’, claimed the CCG had acted unlawfully by  preventing ‘proper patient involvement’  when it refused to publish the tender documents. The letter before action identified four areas where the CCG had failed to meet its obligations, including failure to take into account the 2013 guidance.The four areas were:

  • It has breached its duty to have a patient involvement strategy.
  • It has breached its duty to have a procurement strategy.
  • Its constitution did not fully reflect the extent of its requirements around engagement.
  • It has not taken into account NHS England’s guidance ‘ Transforming participation in health and care’.

The CCG, in response to the letter before action, denied it had acted unlawfully but nevertheless released the tender documents in January 2014, without going to court.  The tender documents and service specifications issued at the invitation to tender stage were found by campaigners to be so lacking in detail that they effectively gave bidders the freedom to do what they wanted.

The CCG later published the Memorandom of Information (MoI) for bidders on its website,(www.cambridgeshireandpeterboroughccg.nhs.uk) In it the CCG stated that  it did not intend to specify in detail how its desired outcomes should be achieved, preferring instead  for its ‘vision’ to be realised through the procurement process, by encouraging bidders to develop ‘innovative delivery models’. Thus, the CCG  abdicated responsibility for specifying how to meet the needs of its patients. Instead, bidders were asked to design services that would deliver the outcomes required by the CCG. Improved outcomes would then be aligned with financial incentives for the successful bidder.

Strangely, bidders were expected to comply with NICE guidance on safe staffing levels but this is not due to be published until the end of 2014.

3.24 Cambridgeshire and Peterborough CCG Consultation

On March 17th 2014, Cambridgeshire and Peterborough CCG began a three month public consultation on the procurement of a provider for its multimillion pound contract. (Ref 22). The CCG’s aim was to seek the views of users and residents on initial proposals put forward by four shortlisted bidders. The bidders would take the views of the public into account in drawing up their final proposals. And a  team of CCG assessors would use the public feedback to evaluate each bid before selecting a preferred bidder. The assessors included:  GPs, patient representatives, LAs, and specialists in areas such as information technology. The patient ‘representatives” were  members of the Patient Reference Group, a subcommittee of the CCG governing body previously involved in the short listing process. The wider community was not involved.

The list of shortlisted bidders was published only on the CCG’s website, not in the consultation document.They included:

  • Accord Health (Interserve with Provide, formerly Central Essex Community Services and North Essex Partnership NHS FT as mental health lead)
  • Care for Life ( Care UK with Lincolnshire Community Health Services NHS Trust and Norfolk Community Health and Care NHS Trust)
  • Uniting Care Partnership ( Cambridgeshire and Peterborough NHS FT with Cambridge University Hospitals NHS FT).
  • Virgin Care Ltd

According to the Memorandum of Information, available on the CCG website alongside other technical documents, the preferred bidder or ‘lead provider’ will be awarded a 5 year contract with the option to extend it for a further 2 years. It will be responsible for planning and providing community services for adults and older adults and for holding the budget for buying unplanned hospital services and mental health services for older adults and palliative care. It will be responsible for 20,000 staff transferred from Cambridgeshire Community Services NHS Trust (CCS) which may be dissolved.[5] The CCS currently delivers services from 50 properties, including 5 community hospitals, with a total of 102 beds. The MoI states that bidders will not be compelled to continue to use the buildings.

The consultation document

In the consultation document, the CCG’s  stated its ‘vision’ was for ‘older people’s health care and adult community services to be better organised around the needs of patients’. It wanted to see:

  • More joined up care
  • Better planning and communication between patients, carers and professionals
  • More patients to be supported to remain independent
  • Fewer emergency hospital admissions and long stays in hospital

The public were invited to give their views by ticking boxes in a questionnaire drawn up by a market research firm, mruk research which was also responsible for analysing  the responses.  For example, residents were asked to say to what extent they thought the CCG’s ‘vision’ would be successful in achieving the four outcomes listed above. They then had the choice of ticking 5 boxes labelled: strongly agree, agree, neither agree or disagree,strongly disagree or don’t know. They were also asked to give their views on annonymised proposals, put forward by each of the bidders and listed in categories, by ticking boxes in each section to indicate which was the most and least important proposal to them.

Few would disagree with the desirability of the above outcomes. But the consultation document was virtually devoid of facts or planning information and, in any case the questionnaire did not provide respondents with the opportunity to express an informed opinion. Missing information included:  needs and activity analyses; a financial analysis and a risk analysis; issues around accessibility and transport; the future availability of geriatricians; current and proposed staffing levels; implications for the 20,000 community staff who would be transferred to a new provider; pay and conditions for new staff; drawbacks of having a single lead provider (in contrast to large number of drawbacks listed for the current provision); the impact the proposals could have on the sustainabiltiy of hospital services in the area;  the future of Cambridgeshire Community Services NHS trust, and, if this was dissolved, which organisation would take responsibility for its buildings  and 102  rehabilitation and intermediate care beds; the fact that neither Cambridgeshire County Council nor Peterborough City Council wished to include social care funds in any new pooling arrangement or to integrate social care staff with health provision; Respondents, instead, were directed to detailed technical information on-line, designed to be read by experts, not the general public

The consultation document said  services would not be cut or delivered in different locations.  Yet, according to the Memorandum of Information, a lead provider would not be compelled to use any of the existing buildings. The consultation document highlighted current difficulties of trying to achieve service integration with multiple block contracts. It did not mention that the lead provider would also be required to subcontract in turn. It did not disclose the identity of the four  bidders or reveal that the process  could leave responsibility  for buying unplanned hospital care, mental health services and palliative care in the hands of a profit-driven private firm.

In 2010, the coalition government introduced four clear tests new reconfigurations must demonstrate before being approved (Ref 36). These are:

  • Strong, public and patient engagement
  • Consistency with current and prospective need for patient choice
  • Clear clinical evidence base
  • Support for proposals from commissioners

In the Cambridgeshire consultation, the CCG said it had no choice but to put the contract out to tender as it was legally obliged to do so. Then it cited financial and demographic pressures but only one piece of research – from the Kings Fund – as the reasons for change. The CCG consultation document, as discussed, did not facilitate strong, public and patient engagement. Yet strangely, NHS England would have approved the consultation document with all of its inadequacies, as part of its duty to assure CCG proposals for change (see 2.14).

The group ‘Stop the NHS sell-off’ continued to campaign during the consultation period, attending public meetings and collecting 5,500 signatures on a petition opposing NHS privatisation. It was vindicated at the end of September when the CCG awarded the contract to the NHS bidder ‘Uniting Care Partnerships’. The exercise cost the CCG £1million. Campaigners are calling for a public enquiry into why the CCG embarked on such a process in the first place. They are also demanding to know why it refused to allow Cambridgeshire Community Services Trust to bid for the contract when it was in line for a ‘Trust Provider of the Year’ award and judged one of the best NHS employers in the country (Ref 23).

3.3 Public involvement in Tendering

In December 2013, NHS England issued further guidance for CCGs on the planning of major service changes and reconfigurations. (Ref 7). The document, like most official documents,  stresses the importance  of patient and public involvement in the planning process. It then states:

“ It is for commissioners to decide how best to secure services that meet patients needs and improve the quality and effectiveness, including whether to use choice and competition. Commissioners need to make a balanced judgement on a mix of factors ….such as whether there are a range of providers.However, patients and their interests should always come first and nothing in legislation requires commissioners to take a decision in respect of competition issues that conflict with this

Thus CCGs, alone, decide whether or not to put services out to tender. Patients and the public do not have a say even though their interests are supposed to come first.

Commissioners have a duty to put contracts out to tender when not to do so would be against the interests of patients (Procurement, Patient Choice and Competition Regulations 2013). But CCGs (including Cambridgeshire and Peterborough CCG) say they are legally obliged to put all service contracts out to tender whether they wish to do so or not (Ref 24). Their assertion runs counter to the guidance from NHS England and to the regulations, which suggest CCGs have a choice. In fact, there is little evidence, either nationally or internationally, to support the premise underlying the 2012 Act, namely that choice and competition benefits patients.

  • A review by the Parliamentary Labour Party Health Committeee ‘An Inquiry Into The Effectiveness of International Health Systems ‘ (HSJ 20 May 2014) concluded that markets in healthcare increase inequalities and that competition can “impede quality, including increasing hospitalisation rates and mortality”. As a result the report called for the repeal of the H&SCAct 2012 .
  • An attempt between NHS England and Monitor to draw up a new Choice and Competition Framework was put on hold in September 2013 because they could not find enough evidence to show how competition benefited patients (Ref. 25).  At a board meeting of NHS England in September 2013, the policy director, Bill McCarthy said:

“We’re committed to being a system that works on evidence and in this area, even taking from international evidence, the direct evidence of where best competition and choice works to improve outcomes is fairly limited”

Chairman Malcolm Grant added:

“It is so important that we get away from ideological preconceptions and take a much more pragmatic focus around the needs of patients”

The dispute remained unresolved in March 2014, suggesting the future of the project may be uncertain. According to the HSJ, new policy owners in Monitor consider their guidance should be the key resource for commissioners to understand choice and competition, not the framework with NHS England  (Ref. 26).

The lack of evidence for the view that competition benefits patients robs the coalition of the official fig leaf for its ideological agenda. The SoS, himself, stripped the phrase ‘putting patients first’ of its significance by rejecting the main recommendation of the Francis report into failures at Stafford hospital. The Francis recommendation was to rewrite the NHS Constitution to make it explicit that ‘patients come first’. A government appointed panel, chaired by health minister Norman Lamb, helped the SoS to reject the recommendation. Alongside Norman Lamb, the panel included Monitor chair Stephen Thorton and representatives of Virgin Care (Ref 27).  Thus competition and private interests appear to  carry more weight with the government than the interests of patients, despite its protestations to the contrary.

  1. HEALTHWATCH ENGLAND (NHS Act s.181) & LOCAL HEALTHWATCH (2012 NHS Act s.182-189)

4.1 Background

The  NHS Act 2012 established (i) Healthwatch England, a national body and (ii) Local Healthwatch organisations, (to replace Local Involvement Networks ) as the new “consumer champions” for patients, service users and the public.

  • Healthwatch England began operating on October 1st 2012, as a subcommittee of the Care Quality Commission (CQC) – the body responsible for inspecting hospitals, care homes and care services. Healthwatch England operates on behalf of the CQC but must not have a majority of CQC members on its committee.
  • Local Healthwatch organisations started in April 2013. They are not statutory bodies but have statutory duties and powers similar to those of Local Involvement Networks (LINks). Local Healthwatch organisations are commissioned by upper tier and unitary local authorities. They are accountable to the local authority but funded nationally.

Various bodies can bid to provide Healthwatch organisations e.g. community interest companies, charities or social enterprises. Unlike OSCs, local Healthwatch committees can “enter and view” public or private sector premises providing health and social care services [6].

4.2 Healthwatch England  (H&SCA 2012 s.181)

The functions of Healthwatch England are:

  • To provide leadership, support and set standards for Local Healthwatch organisations.
  • To highlight national issues and trends in order to influence national policy. It will collate and provide information to the Secretary of State for Health, the Care Quality Commission, NHS England, Monitor and local authorities about (a) the views of people regarding their need for and experiences of health and social care services and (b) the views of Local Healthwatch organisations and of other persons on the standard of provision of health and social care services and on whether or how the standards could or should be improved.
  • In performing their functions, Healthwatch England must have regard to such aspects of government policy as the Secretary of State many direct.
  • The Secretary of State can give a direction to Healthwatch England or to the CQC if he/she considers they are significantly failing to fulfill their duties.

4.3  Local Healthwatch Organisations (H&SC Act 2012 s. 182)

The functions of Local Healthwatch organisations are:

  • Providing advice and information to users and the public about access to services and support for making informed choices.
  • Providing NHS complaints advocacy (LAs will continue to manage complaints about social care).
  • Gathering views and understanding the experiences of people who use services, carers and the wider community.
  • Making people’s views known to Healthwatch England and providing a steer to help it in carrying out its role as national champion
  • Recommending investigation and special review of services via Healthwatch England or directly to the Care Quality Commission.
  • Promoting and supporting the involvement of people in the commissioning and provision of local services and how they are scrutinised.
  • Enabling people to monitor/review the commissioning and provision of local care services
  • Obtaining the views of people about their needs for and experiences of local care services and make those views known to those responsible for the commissioning and provision of local care services.
  • Making reports and recommendations about how those services could or ought to be improved to ‘responsible bodies’ : i.e. NHS trusts; NHS foundation trusts; NHS England; CCGs; LAs; or a person prescribed in regulations (i.e. primary care providers).

4.4  Healthwatch Regulations

Regulations laid in December 2012 (The NHS Bodies and Local Authorities (Partnership Arrangements, Care  Trusts, Public Health and Local Healthwatch) Regulations part 6 2012) make provision about:

  • The criteria that bodies will need to meet in order to be contracted as local Healthwatch organisations
  • The contractual arrangements between (a) the Local Authority and local Healthwatch and (b) local Healthwatch and its contractors.
  • The duties on commissioners and providers to respond to reports, recommendations and information requests and their duty to justify their decision if they do not intend to act on recommemndations or provide information.
  • Referrals to local authorities or scruntiny committees (OSCs) and the duty on them to acknowledge referrals from local Healthwatch..
  • The duties on service providers to allow entry to local Healthwatch representatives

The regulations lay out in detail what Healtwatch committees can and cannot do.

4.41 Key Points

Regulation 36 requires local Heathwatch committees to act independently of political parties, think tanks and campaigns. They must not:

  • Promote or oppose changes in any law applicable in the UK in the EU or elsewhere or the policy adopted by any governmental or public authority in relation to any matter (36 (1a)).
  • Provide or affect support for a political party or political campaign or influence voters in relation to any election or referendum (36 (1c).
  • Undertake campaigning and policy work unless it is based on evidence and incidental to its core activities (Reg. 36 (2).

Regulation 38 stipulates that local `Healthwatch organisations must include provision for the involvement of lay persons and volunteers in their governance bodies.

Regulation 42  allows only authorised representatives of a local Healthwatch to enter and view and observe the activities on  premises owned or controlled by a service provider.

Regulation 44 requires a recipient of a Healthwatch report or recommendation to respond within 22 days or, in certain circumstances, in 30 working days to explain what action it proposes to take or why it does not intend to take any action in respect of the report or recommendation

Regulation 46 requires a local Healthwatch to refer reports of social care matters to the LA or OSC . The latter must respond within 20 working days.

4.42 Limitations of local Healthwatch Committees

  • A prime role of local Healthwatch committees is to gather evidence from the views and experiences of patients and members of the public and to feed the evidence in written reports back to commissioners and providers. A Healthwatch committee has no means of direct redress if its reports or recommendations are not acted upon. But it can recommend investigation and special review of services via Healthwatch England or directly to the Care Quality Commission.
  • Healthwatch committees are gagged from speaking out against any law in the UK or the policy adopted by any governmental or public authority. Governmental authority includes any national, regional or local government in the UK or the EU or any of its institutions or agencies. They can conduct campaigns but only when they have collected sufficient evidence and they are a minor activity. It is doubtful Healthwatch England would, even then, advise a local healthwatch committee to speak out against government policy, given the Secretary of State is responsible for overseeing the performance of it and the CQC.
  • Healthwatch organisations, unlike scrutiny committees, do not have a statutory right to be involved in consultations. Their primary role, instead, is (a) to promote the involvement of individual patients and members of the public in consultations and (b) gather evidence from the views and experiences of patients, users and the public to feedback to commissioners and providers.
  • A local Healthwatch must appoint one person to represent it on the LA’s Health and Wellbeing Board (NHS Act 2012 s.194 (6)[7].  Healthwatch would then become jointly responsible with the other members of the Health and Wellbeing Board for the JSNA and JHWB, despite the fact a lay representative could struggle to retain independence surrounded by persuasive NHS and Local Authority executives.
  • Section 224 (1a) of the Local Government and Public Involvement in Health Act 2007 allows the Secretary of State to impose a duty on service providers[8] to respond to requests for information. But following consultation on Local Healthwatch regulations, the Department of Health has decided service providers should not have a duty to provide local Healthwatch committees with information. A local Healthwatch committee must use the FoIA to obtain information when a service provider refuses to collaborate. In a letter to the Secretary of State, the Chair of Healthwatch England, Anna Bradley, has protested:

“The local Healthwatch may struggle to get information using the FOIA. This is because when a LA or health provider outsources provision of services to a private company then the information held by the private provider may not be accessible using the FOIA.  The public authority would need to have complied with its own statutory duty to put contractual mechanisms in place to ensure the activities set out in s. 221 (2) can be carried on …. .. but commercial contracts between private companies and public bodies try to limit any FOIA disclosures as far as is possible. This is achieved by placing an obligation on the public body to try and rely on exemptions, for example the commercial interests exemptions and confidential information exemptions, or by using third party rights exclusion clauses and the rules of privity of contract (Ref:28).

Her concerns echo those of Christopher Newdick of Reading University (Ref 29). In 2006 he wrote:

“ If an NHS body enters into a contract with a private commissioner (or provider) although the NHS body is subject to the (FOI) act, the act specifically excludes disclosure of information that is confidential or likely to prejudice commercial interests. Private sector companies are entitled to seek the protection of this exclusion, as their obligations are primarily to their shareholders”.

 Clinical commissionng groups and CCG committees in common are currently not mandated to have local Healthwatch representatives on their decision making committees.

In a recent letter to the Secretary of State Anna Bradley expressed concern that under a  Draft Legislative Reform (Clinical Commissioning Groups) Order 2014, CCGs would be allowed to form joint committeess with each other or with NHS England but would not be mandated, at the same time, to allow local Healthwatch representatives to attend joint meetings as observers (Ref. 30 &31 www.healthwatch.co.uk). The letter pointed out that In areas such as Manchester where joint CCG committees already existed, local Healthwatch organisations found that CCG decision-making lacked transparency and accountability, a situation that impaired their abiity to carry out their Healthwatch functions. They reported :

  • Disengagement of CCGs with local acountability mechanisms.
  • Poor public engagement by CCGs and committees in common.
  • Major decision-making items such as models for service reconfiguraion being discussed in closed sessions.
  • Insufficient planning for public engagement

The letter from Healthwatch England called on the SoS to issue statutory guidance that would  address these problems (Ref 30). But the Secretary of State replied  he had no plans to introduce further legislative change to amend the LRO or to introduce a mandatory non-votong seat for local Healthwatch on CCG or joint CCG  committees (Ref.31). This, he said, would be contrary to the ‘permissive and flexible nature of legislation in relation to CCGs’ and the duty to involve and consult the public would still apply to CCGs. Short and accessible resources might be found to enable local Healthwatch committees to work together ito monitor the decisions of CCG joint committees. Minimising the obligations placed upon CCGs is, thus, a greater priority for the SoS than ensuring CCGs have access to the views and experiences of patients.

The Chair of Healthwatch England has pledged “The Healthwatch network will hold all organisations to account for how they involve consumers and users in their decision-making. Healthwatch will challenge organisations to do better and remind them of their responsibilities.” (Ref 28). This admirable aim might be difficult to achieve, given the response, above, from the Secretary of State.

  1. COMMON LAW AND CONSULTATION

Common law is the body of law (case law) which has been made by judges. It is binding unless it conflicts with statute (Acts of Parliament) or regulations and takes precedence over government guidance and local policies.

5.1 Rules defining ‘proper consultation’

The common law, below, defines what is meant by the term consultation and what constitutes a ‘proper consultation’.

Consultation is ‘the communication of a genuine invitation to give advice and a genuine receipt of that advice’ (R v Sec of State for Social Services ex parte AMA (1986)

Consultation with patients and the public, whether statutory or not, must be carried out properly i.e.

 

  • Be undertaken when plans are at a formative stage
  •  Include sufficient reasons/ information to allow for an intelligent consideration
  •  Allow adequate time (usually 12 weeks) for an intelligent response
  •  Public responses must be conscientiously taken into account when the final decision is taken

(R v Brent LBC ex parte Gunning (1985)).

A recent ruling by the court of appeal states:

  • The consulting bodies obligation is to let those who have potential interest in the subject matter know in clear terms what the proposal is and why exactly it is under consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response.
  • The duty (on the public body) to provide sufficient information does not in general extend to providing options or information about proposals which it is not making unless there are very specific reasons for doing so.

R (on the application of United Company RusalP Plc v The London Metal Exchange (2014) EWCA Civ 1271 (*th October 2014

In other words, a “one-option’ consultation is lawful given it is undertaken with an open mind i.e. before a decision is taken.

5.12  Central procurement of new services

A court of appeal ruling clarifies when NHS commissioners need to consult during the planning and procurement of new services (R(Fudge) v South West Strategic Health Authority and Others (2007)):

  • If new services are planned and procured centrally by the DH and an NHS organisation is not responsible for the services, it will not have to involve users or consult with the OSC.
  • Where services are planned centrally and procured locally, the NHS organisation responsible for the procurement must involve users and consult with the OSC where necessary.
  • In addition, an NHS body may have a duty to involve in relation to proposals and decisions which it has not itself generated: the issue is whether the proposal affects the services for which the NHS body is responsible. A local NHS body may need to involve users if a national decision to procure a treatment centre has an impact on other services for which the body is responsible.

5.2 Common Law v. Government Policies

5.21 Consultation Principles (Cabinet Office 2012)

In 2008, the common law principles in 4.1 above, were codified in the ‘Code of Practice on Consultation for Government Departments’ (Dept Business, Enterprise and Regulatory Reform July 2008). The Code set out criteria to be reproduced in formal consultation documents on substantial changes.

In July 2012, new guidance or ’Consultation Principles’ published by ther Cabinet Office (Ref 15) replaced the former ‘Code of Practice’. The emphasis is now on the use of on-going consultation with patients and their representatives (NHS Act 2006 s242(1B)) in preference, where possible, to formal, written consultations with OSCs (NHS Act 2006, s.244). It states:

  • NHS bodies proposing changes to local health services should identify key stakeholder groups and embark on earlier engagment with those groups, in preference, to conducting more formal, written consultations.
  •  Formal consultations may still be appropriate for ‘contentious’ changes (formerly known as ‘substantial’). And, longer and more detailed consultation will be needed in situations where smaller, vulnerable organisations, such as small charities could be affected.  
  •  Consultation needs to be digital by default, but other methods should be used where these are needed to reach all groups affected by the policy. Consideration should be given to more informal ways of engagement if more appropriate e.g. e-mail, web-based forums, public meetings, working groups, focus groups,surveys – rather than always reverting to a written consultation. Information should be easy to understand and clarify the main issues and be sufficient to enable stakeholders to make an informed response.

The Consultation Principles, above, do not have legal force. However, their emphasis on informal engagement with individual patients rather than formal written consultations with LAs is in keeping with the 2006 legislation which gives NHS managers leeway to decide how, when and who to consult. The 2013 LA regulations  preserve the right of LAs to demand enough time and information to enable them to make an informed response to a consultation, in accordance with case law. But LA statutory powers are in danger from other stipulations that may limit, for example, their ability to refer objections to the SoS.

5.22 Common Law and the Freedom of Information Act 

Commercial confidentiality takes precedence over the public’s right to information. Under The Freedom of Information Act (FoI), 2005, the public has the right to request official information from public bodies. But the Act carries 23 exemptions preventing disclosure. Section 43 of the Act specifically excludes public bodies from disclosing information likely to prejudice the commercial interests of any person (a person maybe an individual, a company, the public body itself, or any other legal entity).  It even provides an exemption from the requirement to inform the public whether or not such information is held. Consequently, contracts between NHS bodies and private firms e.g. PFI contracts, contracts with commercial providers or commissioners are shrouded in secrecy.

Professor Allyson Pollock describes in an article her attempts to obtain a copy of the contract that   allowed Circle Healthcare to run Hitchingbroke NHS Hospital and how the  DH and Treasury refused to disclose it on the grounds of commercial confidentiality. She comments, “In future, healthcare will be arranged through tens of thousands of commercial contracts. It will become increasingly difficult to know what exactly is being done with public money ( www.opendemocracy.net/author/allyson-pollock )

Christopher Newdick of Reading University has warned, “where contracts are between private commissioners and private providers,  it will be very difficult to get useful information because the private organisations would often wish to prevent disclosure in their own commercial interests (Ref. 29).

His warning has come to pass. The Information Commissioner recently refused a Freedom of Information Request about the staff and dispensary of a GP practice.  The Commissioner said he was aware that “primary care health services contracts are currently being granted to private companies…..and that the disclosure of information would be likely to prejudice (the GP practice’s ) commercial interests. And may result in the closure of the practice”. (Ref 32).

Hundreds of general practices and commissioning functions are now operated and managed by profit making firms and many more are under threat (Ref: 3). NHS England recently announced a short list of companies and organisations competing to be on the approved list of firms able to compete for £1 billion worth of contracts offering advice and support on commissioning to CCGs. The sucessful firms will be involved in patient care reforms, drug purchasing, negotiating hospital contracts and crucially, outsourcing services to the private sector. A largely unknown commissioning support industry group (CSIG) has now turned its attention on  the NHS. United Health, the giant US health insurer (and former employer of NHS England’s chief executive Simon Stevens), chairs the group. It has been taking part in regular meetings with Bob Ricketts, director of commissioning support services and other senior staff from NHS England. And recently it paid for senior NHS managers to visit its care centres in the US on a five day fact finding mission. (Ref 33).  Thus NHS commissioning has become the target for unaccountable, profit-hungry, giant health care firms whose decisions are shrouded in secrecy, far from the realm of public scrutiny. The Cambridgshire and Peterborough consultation, with its meaningless questionnaire, shows planners are adapting to the fact that the public no longer has enough information to respond intelligently to consultations or to hold NHS organisations to account.  Nevertheless they continue, compelled by law, with the (expensive) charade of giving people a say.

6.PATIENTS’ LEGAL CHALLENGES – JUDICIAL REVIEWS

Judicial review is a mechanism that allows the Courts to hold public bodies [9] to account if they abuse their power by acting:

  •  Illegally – where a public body makes decisions inconsistent with its statutory powers or duties.
  •  Irrationally – where a public body makes decisions which are irrational or illogical
  •  With procedural impropriety – where a public body does not act impartially e.g. makes a decison that discriminates against individual patients.

It is an essential mechanism for upholding the statutory rights of the public and individual citizens .

The NHS Constitution gives patients and the public the right to make a claim for judicial review if they think they have been directly affected by an unlawful act or decision of an NHS body. All NHS bodies and private and third sector providers supplying NHS services are required by law to take account of the Constitution in their decisions and actions.

Judicial review is not a form of appeal against a decision, as such, but against how decisions are made.  Failure of CCGs, for example, to observe any one of their statutory duties in commissioning decisions  i.e.not only the duty to consult, could expose them to challenge in the courts. Their duties include:

  •  Duty to promote the NHS Constitution.
  • Duty to secure continuous improvement in (i) the quality of services provided and (ii) the quality of outcomes that are achieved.
  • Duty to secure continuous improvement in the quality of primary medical services.
  • Duty to promote patient involvement in their own care ‘no decision about me without me’.
  • Duty to reduce inequalities between patients with respect to their ability to access health services and the outcomes achieved.
  • Duty to enable patient choice.
  • Duty to secure public involvement & consultation as laid down in NHS Act 2006 s. 242 (1B)).
  • Duty to promote the integration of health services with health related social care services.

The ‘right’ to seek  a judicial review is not an easy option. Legal costs are high (although legal aid is still available for the poorest claimants living on means tested benefits). And a ruling in the Court of Appeal makes it clear that very little can be achieved by bringing proceedings for judicial review where the obligation (to consult) is limited (R (Fudge v South West Strategic Health Authority and Others (2007).

However, judicial reviews can have a successful outcome for campaigners, as shown by the ‘Save  Lewisham Hospital’ campaign and the ‘Stop the NHS sell-off’ campaign in Cambridgshire. In 2012, NHS Gloucestershire PCT backed down over plans to move community services and 3,000 staff to a social enterprise on the day it was due to face a challenge in the high court from Michael Lloyd, a 75 year old resident (Ref 34). The DH later gave the PCT permission to consider the option of establishing a new NHS community  trust.  The PCT bowed down to public pressure and decided to do so, keeping community services in the NHS.

6.1 How to seek a judicial review

 The following advice on how to seek a judicial review is taken from the 2006 briefing “Patients’ legal challenges to NHS cuts /closures” by Leigh Day solicitors Richard Stein and Ross Curling (see KONP website). The procedure is still largely relevant but see, also, an excellent, up-dated briefing by Richard Stein ‘Quick and Easy Guide to Judicial Review’, available on-line.

  •  Find patients affected by the service changes who would be willing to take legal action. If they are in receipt of any means tested social security benefits such as income support, pension guarantee credit, family credit, housing benefit or council tax benefit they are likely to be eligible for Legal Aid (now called Public Funding).
  •  Collect all of the available documentation available from the relevant NHS bodies (reports, public consultation documents, press releases, press cuttings, correspondence etc).
  • Obtain legal advice/help to write a letter before claim to the relevant NHS bodies reminding them of their duties to consult before making changes to health services, threatening judicial review if they do not agree to reverse the decision. Our contact details are below.
  • Do not delay! Cases must be brought promptly (within weeks of the decision being made).
  • Once a lawyer’s letter has been received in cases where no real consultation has been carried out the decisions are usually put on hold pending consultation. If not, commencing legal proceedings will need to be considered immediately.
  • The case will be heard in the High Court in London (or one of the regional Administrative Courts).
  • There is no oral evidence so the Claimant does not have to go to court. He or she can play as large or small a part as he or she wants to.
  • If the implementation of the decision is imminent proceedings can move very quickly, suspending a decision in a matter of days or a few weeks. Otherwise it can take up to a year.
  • Carry on campaigning! A judicial review about the lack of consultation will only delay the implementation of a decision. To prevent it the political argument needs to be won. You have to make it too difficult politically for the NHS body to confirm their proposed changes.

6.2 Restrictions on Judicial Review (Ref 35)

Plans to make it harder to challenge government decisions via judicial review, introduced in the  criminal justice and courts bill, were approved by the House of Commons in 2014. These included :

  • Reducing the time limit for bringing judicial review for certain cases. In planning cases the time limit was reduced from 3 months to 6 weeks; in procurement cases from 3 months to 4 weeks.
  • Removing the right to a hearing in some cases. If a judge after considering the case on paper, concludes that a case is ‘totally without merit’ claimants now lose the right to seek a short hearing before the court, a move which frequently led to a full hearing in the past.

However, in October 2014 the House of Lords voted against the plans on the grounds that they would mean governments could not be brought to account in the courts if they acted illegally. The three main legal professions in England and Wales also condemned a move to prevent charities and non-governmental organisations from intervening in judicial review cases which contained matters of public interests  (Guardian 28 October 2014; see also 3.1).

The government is considering further changes:

  • A significant increase in court fees, to meet the actual costs of the courts in handling a judicial review
  • No payment from legal aid unless a case is expressly granted permission to proceed to a full hearing. As the majority of judicial review cases are settled (usually) favourably before the permission stage is reached, this proposal would threaten the financial viability of law firms which act for claimants.
  • Removal of legal aid from foreigners and prisoners

Jamie Beagent from openDemocracy concludes:

“ The government has repeatedly sought to justify these changes through unevidenced assertions that judicial review is a hindrance to economic growth and that right to judicial review is ‘abused’. …..

Make no mistake , these changes are not about saving money or addressing ‘abuse ‘of the judicial review process. They are an ideological attack on the ability of citizens to hold our government to account which threatens lasting damage to the rule of law in this country”.

CONCLUSION

The type of public engagement preferred by NHS organisations and the Cabinet Office is the involvement of individual patients or individual members of the public – in marginal decision making and on management terms.  A more democratic approach seemed possible in 2013 when NHS England published guidance stating people should be directly involved in decisions about who should provide services. However, that guidance was soon altered. It now refers to patient representation on panels and their need for support and training, not consultation with the general public. Individual participants, as discussed, have no means of redress when their views are ignored. So engagement with them allows managers to operate unhindered while, paying lip service to public accountability and consultation. The NHS Constitution, meanwhile, gives individual patients or members of the public the right to claim judicial review if they are personally affected by an illegal or discriminatory decision. But recent moves by the government to limit the number of judicial reviews make it increasingly difficult for them to do so.

Opposing policies such as the above, where statutory rights are given by one hand and removed or weakened by the other, are now widespread. Local authorities or OSCs, the last remnants of democracy in the NHS, have the right to require NHS Foundation trusts, private sector providers and CCGs to provide them with information but they have no enforcement powers, outside the formal consultation process, or visiting rights to enable them to seek information for themselves. They have the right to be consulted on proposals for substantial changes but it is becoming more onerous for them to refer objections to the Secretary of State. Moreover, the duty on NHS organisations to consult with OSCs is shrinking. There is no formal requirement for commissioners to involve LAs/OSCs in deciding whether to classify services as commissioner requested services or not. Changes to or closures of services deemed ‘non-commissioner requested’ or ‘non–essential’, by definition, would not trigger a requirement for consultation even though such services may be valued or needed by patients. OSCs do not have a right to be consulted on Foundation Trust plans to increase private patient income or make significant transactions or mergers, acquisitions and separations or to form joint businesses with the private sector, all of which could pose a significant risk to local services. Foundation Trust governors, alone have the power to approve them. Yet OSCs are far better placed than FT governors to assess the implications of such decisions for the wider health economy. The duty to consult LAs or OSCs does not apply when Trusts go bankrupt and are taken into special administration. The amendment to clause 118 of the Care Bill was rightly viewed as a triumph by campaigners. It requires administrators to consult with every CCG likely to be affected by their recommendations, not just the CCGs attached to the failing trust, and provides some scope for public consultation. However, the amendment leaves a basic loophole intact, namely, when administrators and CCGs cannot agree, NHS England, not the CCGs or public opinion, has the final say.

Local Healthwatch organisations – the official ‘consumer champions’ – are constrained similarly.  Healthwatch members have the sole right to visit and inspect health service premises on behalf of local residents. They can report their findings to Healthwatch England and NHS organisations but are forbidden by law to use the information to oppose government policies or engage in policy work. They may campaign if they have enough evidence but only if it is kept as a minor activity. Equally odd, is the Secretary of State’s refusal to provide Healthwatch members with the right to information or the right to attend CCG board meetings as observers. Healthwatch members have a duty to provide the public with information and help patients exercise choice. Yet they may have to use the Freedom of Information Act to obtain official information for themselves. Another key role for Healthwatch organisations is to gather the views and experiences of patients and feed these back to Healthwatch England, the Local Authority, OSCs and NHS organisations. Yet Healthwatch members cannot make use of their own knowledge in public consultations as they do not have a statutory right to be consulted. Instead, Healthwatch committees have been subsumed into the planning process by virtue of their single seat on Health and Wellbeing Boards. In practice, far from being ‘consumer champions’, Healthwatch organisations are the equivalent of a government smoke screen, engaging the public in a minor way, while fundamental changes to the NHS, including privatisation and its consequences, remain  hidden from view.

A prerequisite for accountability to operate is a free flow of information to ensure citizens have the knowledge to scrutinise and challenge the decisions and acts of those in power (Ref 4).  However, under the Freedom of Information Act , information can be withheld on the grounds of commercial confidentiality. Contracts between NHS bodies and commercial firms are shrouded in secrecy. As a result, consultation documents are bereft of  essential information, so that consultees cannot make an informed response even if they wish to.

Moreover, contracts with private firms  leave patients with less information to choose where to be treated. This irony and the fact many  patients may be too ill to choose fosters not only spurious competition but health inequalities, as shown in the recent Labour Party Parliamentary health committee review.  An absurdity at the heart of government policy is the ideological belief that privatisation and competition  promote choice, improve services and reduce health inequalities.

Ominously, profit hungry commissioning support firms are coming together in groups to bid for lucrative NHS contracts.  One shadowy commissioning support group, chaired by United Health, the giant US health insurer, is currently lobbying NHS England strongly for a contract worth £1 billion, even to the extent of taking NHS officials on a fact finding trip to the US. When so much tax payers money is at stake, it is, perhaps, not surprising that CCGs are taking major decisions in closed sessions and disengaging from local accountability mechanisms, as reported by Healthwatch organisations. The decision of the SoS to refuse Healthwatch representatives an observer seat on CCG committees reinforces the view that deals with private firms are being struck in secret. The prescient words of historian Charles Webster spring to mind “local communities and their representatives are likely to count for little when it comes to appeasing corporate interests” (Guardian May 8th 2002).

There may still be time to save the NHS and restore democractic accountability. People of all political persuasions, in England, as well as Scotland, support the health service and do not want it handed over to profit driven private firms. And irrespective of how hard the government works behind the scenes to curtail statutory rights, it cannot remove the power of the public to vote  politicians  out of office at the ballot box. That power, above all,  explains the policitians fear of exposure, their drive to hide information and to privatise by stealth. Thanks to the persistence and direct action of campaigners, however, news of NHS privatisation is getting out, hopefully in time to influence public opinion and galvanise grassroot support before the general election in 2015. Effective grassroot campaigners have shown they have the power to jolt and influence politicians out of their complacency. The survival of the NHS rests in their hands.

REFERENCES

  1. The National Health Service, A Political History by Charles Webster : OUP 2002
  2. The Plot Against the NHS by Colin Leys and Stewart Player: Merlin Press 2011
  3. From Cradle to Grave by Allyson Pollock and David Price, Chap.7 NHS SOS: One world publications 
  4. Democratic Accountability in Service Delivery – a Synthesis of Case Studies by Kristina Jelmin. International Institute for Democracy and Electoral Assistance (International IDEA) 2011
  5. Local Authority Health Scrutiny: A summary of consultation responses DoH, 14th December 2012
  6. Local Authority Health Scrutiny: Guidance to support effective health scrutiny DoH June 2014
  7. Planning and delivering service changes for patients: NHS England guidance for commissioners, 20th December 2013
  8. www.irpanel.org.uk
  9. Independent Reconfiguration Panel: Reviews 3rd edition, 2010
  10. NHS London Reconfiguration Guide Version 3, 2011
  11. NHS Yorkshire and the Humber: A guide to service change, 2010
  12. Guidance for Commissioners on ensuring the continuity of health care services: Designating Commissioner Requested Services and Location Specific Services Monitor, 28th March 2013
  13. Dealing with financially unsustainable providers by Tony Harrison & Anna Dixon: The Kings Fund,19th September 2012
  14. Planning for closure: the role of special administrators in reducing NHS hospital services in England. Allyson Pollock & David Price BMJ2012:347:17322
  15. Cabinet Office Guidance: Consultation Principles, 17th July 2012
  16. Your Statutory Duties. A reference guide for foundation trust governors: Monitor August 2013
  17. Real involvement: working with people to improve health services: Statutory guidance DoH, October 2008
  18. The race to privatise everything in the NHS Paul Evans for openDemocracy, 6th September  2013   (opendemocracy.net/ournhs)
  19. Local enhanced services worth millions to be opened up to competition from April: Pulse, 28th March 2014
  20. Transforming Participation in Healthcare: “The NHS belongs to us all” Statutory guidance NHS England 2013, Publications gateway ref: No 00381
  21. Local Government Lawyer/procurement localgovernmentlawyer.co.uk
  22. Proposals to improve older peoples’ health care and adult community services: Cambridgeshire and Peterborough CCG, 17th March – 16th June 2014
  23. “Waste of money” and “poor care”- NHS privatisation failures exposed across the east of England by Steve Sweeney for openDemocracy – Our NHS, 3rd October 2014
  24. ‘Government forcing us to open NHS to competition’ say commissioners: Caroline Molloy for openDemocracy, 25 September 2013
  25. ‘Competition guidance stalls around lack of evidence of benefits to patients: David Williams, HSJ 16th September 2013
  26. NHS England accuses Monitor of “unpicking” choice and competition framework: Will Hazell HSJ 5th March 2014
  27. Key NHS recommendation to “ put patients first” rejected by government advisors: Caroline Molloy, OpenDemocracy 13th March 2014
  28. Healthwatch England’s position on the Statutory Instrument 2012 No. 3094  www. healthwatch.co.uk
  29. Newdick and Danbury BMJ 12th January 2006
  30. Letter from chair of Healthwatch England to Secretary of State 16th July 2014 re- Draft Legislative Reform (CCGs) Order 2014
  31. Secretary of State’s reply to Chair of Healthwatch England 11th Augusr 2014
  32. Will private sector secrecy stop the NHS becoming more open? By Roger Kline for Open Democracy – Our NHS October 2013
  33. Calls for greater disclosure on NHS chiefs’ meetings with private US health insurer by Jamie Doward : The Observer 30th August 2013
  34. Plans to move NHS services to social enterprise halted; Jo Ademjl Guardian Professionals 10th February 2012
  35. ‘Constitutional Assault on judicial review’ by Jamie Beagent: openDemocracy – OurNHS, August 2013.
  36. Revisions to the Operating Framework for the NHS in England 2010/11 June 21st 2010 Gateway reference: 14374

[1] NHS regulators include:

  • Monitor – responsible for (i) issuing licences to providers of NHS funded services registered with the Care Quality Commission (ii) overseeing the performance of all providers (iiI) promoting competition between providers, with the power to impose fines for infringements of competition law (iv) minimising the obligations placed upon both commissioners and providers.
  • The NHS Commissioning Board (NHS England) – responsible for (i) setting up and offering support to CCGs (ii) ensuring patients can exercise choice and (iii) ensuring that any organisation providing functions or services on behalf of the NHS can operate freely with the minimum of interference.
  • The Care Quality Commission (CQC) – responsible for (i) registering and inspecting all care providers that meet its standards of quality and safety (ii) publishing reports, thus, enabling patient choice (ii) providing NHS and private sector organisations with a common inspectorate that allows them to compete on a level playing field.

[2] Health and Wellbeing Boards (H&WBBs) are joint forums in which health and social care senior managers, local commissioners, at least one elected representative and one healthwatch representative work together to draw up joint strategic needs assessments (JSNAs) and Joint Health and Wellbeing strategies (JHWSs).. The H&WBBs are expected to drive the local commissioning of health care, social care and public health services, including reconfiguration plans, through their JSNA process  (Ref 7). H&WBBs must involve local Healthwatch and the local community in a continuous way

throughout the JSNA and JHWS processes (Ref 20).

[3] Local MP Jeremy Hunt, now Health Secretary, personally intervened behind the scenes to encourage the Virgin takeover, according to Daniel Boffey in The Observer, 9th September 2012.

[4] NHS organisations must have to regard to guidance but courts will not require them to follow it if  they have good reasons not to do so or where it conflicts with primary legislation.

[5] In 2012, the CCG did not support the Community Services Trust’s bid to become a foundation trust on the grounds that it provided the CCG with flexibility to plan in the face of increasing demand and funding cuts

[6] Recent guidance for LAs recommends that when a health scrutiny body (LA or OSC) is planning to review a certain service, it would be useful if the local Healthwatch arranged to visit the service at the same time to inform the review (Ref 6`).

[7] The regulator Monitor considers that the 2012 Act: ‘strengthens local democratic involvement by ensuring that there is at least one locally elected representative and one representative of Healthwatch on every HWB, to influence and challenge commissioning decisions and promote integrated working’  (Ref 16).

[8] in this context service providers include NHS trusts, Foundation trusts, CCGs, LAs and persosn prescribed by regulations made by the SoS

[9] or private companies undertaking public functions

Tagged | 2 Comments

Over the next 40 minutes or so I will attempt to explore a serious problem of resource allocation and health rationing in the NHS and, I hope, show that this problem is far from unique to the NHS but also exists in healthcare systems throughout the world. And I will end with a call for those who are leading the NHS in our communities up and down the country to play their part in leading public debate on these difficult issues.

First, a health warning. I am a practising lawyer who has spend time as an MP, government minister and over a decade acting for and against NHS bodies in a wide variety of challenging situations. My views are anecdotal not systematic. I hope they are emerge of my various experiences but they are not supported by volumes of academic research.

It is a highly appropriate time to be considering the processes of managing change in the NHS for 3 reasons. First, because the NHS has just lost – by retirement – a significant figure in Sir David Nicholson and welcomes Simon Stevens – not yet Sir Simon – who takes over as Chief Executive of the NHS Commissioning Board, known as NHS England. A change of leadership gives a window of opportunity for an incoming leader to set a new agenda. However the importance of these issues is shown by the fact that Sir David, free of the chains of office, tweeted a link to an article I wrote for the Guardian sketching out these issues, hence inviting his 4000+ twitter followers to read it.

Secondly, the NHS is also facing an unprecedented financial challenge in 2015/16. This is, “coincidentally”, the year immediately after the next General Election. As all politicians and senior civil servants know, nothing serious happens in the year before a General Election. Policy must be implanted in the first 18 months of a Parliament or the political vested interests will create political inertia and the chance for change has been lost.

Thirdly, public expectations of some public services are very different to before the 2007 financial crash. At this time the public appears to accept that public sector financial constraints mean that tough decisions need to be taken in some areas of public service. My experience – as a somewhat electorally unsuccessful politician – suggests to me that this mood music will not last. It will not be long before strident voices will assert the need for completely comprehensive and perfectly functioning public services, paid for by someone else. I exaggerate for effect of course – but there is an element of truth in the caricature.

I start by setting out the premise of this lecture: The NHS is not spending the money it gets from our taxes in a way that delivers cost effective and clinically effective healthcare for the population it serves. As a service, it has the tools to deliver effective change but key decision makers have too much timidity about using these tools to do their job properly.

Why do I say the NHS is not spending our money effectively enough? First, some of the things our clinicians do – spending NHS money – are a complete waste of money; but identifying those “things” is fraught with difficulty. A senior clinical director told me that the most expensive thing in a hospital was a pen. Doctors use pens to order tests, sign off investigations and set out clinical requirements in clinical notes. The way that our hospitals and GP practices are organised means that doctors exercise their professional discretion to do things – all of which cost taxpayers money – with little or no enforceable financial accountability for their individual decisions. There are, for example, no legal restrictions on the drugs that a GP can prescribe for a registered patient of his or her practice, regardless of the cost or potential benefit (For the details see Professor Chris Newdick’s Chapter at paragraph 1.184ff in “Principles of Medical Law” (3rd Edition) (OUP)). That is not to suggest that our doctors are routinely acting in an irresponsible way; but I do suggest that there are no clear limits on the interventions that the NHS will finance – at least at GP level – for that individual patient sitting in front of the doctor. The duty of care to the patient implies a duty to do the best for that patient but there is no clear balancing duty to make effective use of scarce publicly funded resources.

The Dartmouth Institute for Health Policy and Clinical Practice has estimated (note 2 of Bloche: New England Journal of Medicine 10.1056/NEJMp1203521) that 30% of spending on healthcare in the US is wholly ineffective. That means that money is spent on medical interventions which not only are not clinically effective but had no reasonable prospect of being clinically effective – all arising from clinical discretion. However that number must be treated with some caution because, as Lord Leverhulme once said, he knew half of his advertising was wasted, but didn’t know which half (This quotation has been ascribed to a number of people who have purchased advertising over the years).

Secondly, with the growth of evidence based medicine, there is an increasing understanding of what works and what does not work in medicine – at least at the population level and the best way to organise services to deliver the best outcomes. That growing body of understanding does not, of course, mean that medical interventions delivered in accordance with the evidence will work for the patient at the individual patient level. One of joys of life – reflected in medicine – is that we are all different but we are increasingly understanding more about how to organise services so that, with pooled disciplines and clear protocols, outcomes will improve for a greater number of patients.   The improvements in outcomes for patients with strokes in London which centralised initial treatment at a limited number of hospitals is a well-known example of this working in practice.

Reorganising the locations at which NHS services are delivered improves outcomes and saves lives in 2 ways. First, directly, lives are saved by the delivery of better organised services. Secondly, better use of NHS resources in one area of medical treatment frees up resources to be used in less glamorous areas, and thus delivers better outcomes for those patients.

What are the principles that should drive decision making? At the policy level, it seems a statement of the obvious to say that, outside proper research studies, the NHS should only invest its resources in medical treatment that is both cost effective and has proven clinical effectiveness. The NHS has developed many statements to that effect but – to pick one – this is the relevant paragraph from the NHS England Ethical framework (Principle 6 of NHS England Ethical Framework):

“The NHS Commissioning Board should only invest in treatments and services which are of proven cost-effectiveness unless it does so in the context of well-designed and properly conducted clinical trials that will enable the NHS to assess the effectiveness and/or value for money of a treatment or other healthcare intervention”

The justification for this approach is that, in an NHS where demand far outstrip supply, every decision to invest resources in treatment of one patient means fewer resources to treat other patients. The opportunity cost of treating each patient can only be justified if there are proper grounds for believing that the treatment is both clinically effective and cost effective. That may sound harsh because it proposes denying clinically effective medical treatment to someone who may be able to benefit from that treatment. However that approach is a consequence of an important principle that the NHS should value all lives equally. That means valuing the life of the patient who is not immediately in front of a doctor on an equal basis to the patient who is seeking treatment.

But this type of resource based decision making rarely happens in the NHS. The NHS continues to spend our money in ways that deliver less healthcare benefit than it could.

Let me explain by way of some examples. There has been a wide professional consensus for at least a decade that the NHS is spending too much on too many hospital buildings that the NHS cannot afford. There is an urgent need to transfer funding to community based services. However in England, 10.55% of the NHS budget was spent on general practice in 2004-2005. By 2011-2012, this had fallen to 8.5% and last year dropped to 8.39%  even though this represents 92% of patient encounters within the NHS. So policy says one thing but the “payment by results” system we have for funding NHS hospitals does not deliver the policy outcomes.

Secondly, as Dr Ben Goldacre has demonstrated by his brilliant writing which is both informed and readable (See for example the text on Midodrine at pages 138ff of Bad Pharma by Dr Ben Goldacre (2012) Harper Collins), healthcare systems around the world, including the NHS, are failing to reduce spending on drug treatments that do not work due to a combination of commercial interests. Despite that the pressure to spend more on drugs of dubious efficacy grows each year and investment in hospital buildings is forever increasing, even though the inevitable result is a reduction in the level of resources available to the community.

For this evening, I am not so much interested in whether the NHS fails to make change where the evidence suggests that better use of NHS resources could deliver better outcomes for patients but why the NHS fails to take these decisions.

The “why” is – I would suggest – much more interesting than the “whether”.   Any analysis of the mechanisms for change in the NHS must start with asking “who are the decision makers” for these key decisions?

The NHS has been divided into commissioners and providers for over 20 years (Since the NHS and Community Care Act 1990 was brought into force in April 1993). With a few exceptions, such as drugs which have a NICE Technology Appraisal Guidance for patients within defined clinical cohorts (Regulation 4(2) of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012), NHS commissioners have a wide area of discretion to decide what services to commission on behalf of NHS patients. Local Clinical Commissioning Groups and, for specialised services and primary care, NHS England have a wide discretion to decide what services should be commissioned for patients as part of NHS funded healthcare. They have extensive duties to involve patients in their decision making but, subject to that, they are the bodies that decide who gets what medical drugs. They decide whether to commission – i.e. pay for – an A & E at the local hospital, how community services should be organised and how nearly all of the local NHS is to be set up. However the GP contract has not historically placed limits on the drugs GPs can prescribe for their patients.

Subject to this constraint, the legal position in the NHS is reasonably clear. The fact that a medical intervention is likely to be clinically effective for a patient or even safe the patient’s life places no duty on the commissioners to fund that treatment for a patient (R (On the Application Of Condliff) v North Staffordshire Primary Care Trust [2011] EWCA Civ 910). CCGs are entitled to work out where their priorities lie and how the NHS funds will be spent.

But my experience is that local NHS commissioners remain very timid about making changes to the services they commission. It would be easy to say that changes to NHS services are delayed for fear of upsetting politicians who fear not being re-elected. But actually there is a more serious problem.

The real problem – I suggest – is that the concept that the “NHS is free at the point of use” is translated by the public into “NHS care should not be constrained by money”.

Despite the recognition in other areas of public services that the “cloth must be cut”, when it comes to the NHS there remains a measure of disconnect between the money that people pay in their taxes to support the NHS and the quality of service that taxpayers expect to receive. This feeling that “we cannot say it’s about the money” makes it very difficult for those concerned with NHS reform to have a sensible dialogue with the public.

I cannot count the number of times that I have read NHS consultation documents which try to pretend that proposed changes to NHS services are only all about improving the quality of services as if the issue of money and resources was irrelevant. In contrast the internal documents leading to the proposals make it abundantly clear that the drivers for change are a desire to deliver the best quality of services within the financial and human resources available.

But NHS managers are not alone because this disconnect does not just exist in the UK. Professor (and Doctor) Greg Bloche has accurately said that “withholding beneficial care to control costs is a radioactive proposition in American politics”.   Tea party darling Congresswoman Michelle Bauchmann said the proposition that doctors should take account of the cost of treatment was “an horrific notion to our nation’s doctors [and] to each American”.

However if – in my anecdotal experience – NHS managers are asked “why” they are colluding with the idea that changes to NHS services are not about making the best use of available resources, legal problems are often cited as a reason. In fact, I would suggest that the opposite is the case. The approach of the courts actively recognises and supports the need to ration health along with other public services.

In contrast to the political rhetoric, the courts in both the UK and in the United States have accepted that rationing is part of the healthcare delivery business in both the public and private sector. The Supreme Court has approved healthcare rationing and supported paying doctors to ration care. In Pegram v Herdrich the US Supreme Court said “.. no HMO organisation could survive without some incentive connecting physician reward with treatment rationing”. The Court of Appeal in this country has repeatedly held that it is lawful for the NHS to ration access to healthcare. As long ago as 1997 Lord Bingham said in R v Cambridge Health Authority ex parte B ([1995] 1 WLR 898):

“I have no doubt that in a perfect world any treatment which a patient, or a patient’s family, sought would be provided if doctors were willing to give it, no matter how much it costs, particularly when a life was potentially at stake. It would however, in my view, be shutting one’s eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet…. Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make. In my judgment, it is not something that a health authority such as this authority can be fairly criticised for not advancing before the court.”

That approach has recently been approved in a series of recent decisions, including R (Condliff) v North Staffordshire PCT  ([2011] HRLR 38, a case in which I appeared for the NHS body.)which decided that the human rights of the patient under article 8 of the ECHR were rarely if ever engaged in medical rationing treatment decisions.

Further commissioning decisions are public law decisions. The House of Lords has held that, save in a case where it is misfeasance in public office with its incredibly high hurdles including showing malice, NHS commissioners cannot be sued for damages for public law decisions (O’Rourke v Camden LBC [1988] AC 188). Hence, at least in the UK, it is not legal constraints that hold back NHS reform.

So I return to the central problem which – as a non-doctor I diagnose as – there has been a fear amongst NHS leaders that the NHS is a public service where the public do not have an appetite for reform. Those who make decisions about public services rightly feel themselves to be accountable to the public for these decisions and, at present, fear the public have no mood to accept the types of reform that are essential if the NHS is to achieve its twin objectives of (a) delivering the best care it reasonably can to vulnerable patients and (b) remaining within a largely static budget. The losers from this state of affairs are vulnerable patients who don’t get the treatment they need because it is spent on treatment that does not work, on hospitals that are not justifiable or services of marginal benefit.

But perhaps we are at a tipping point. The in-coming NHS England Chief Executive, Simon Stevens, said last week that NHS England wanted local CCGs to come up with sustainable and future proofed local health systems, and then tellingly said:

“If you’re going to get a sustainable and future proofed local health system, what are the longstanding assumptions and constraints we’d need to say goodbye to?”

The second reason we might be at a tipping point is finance. The NHS is facing a funding gap in the next few years up to 2021 of between £30Bn and £12Bn depending on whose estimate you accept. As the Kings Fund said in their impressive interim report “A new settlement for health and social care” published in the last few weeks:

“.. the NHS faces a severe and continued financial challenge …. there are some intense short-term pressures to be dealt with and some long hard term and unavoidable choices ahead”

The NHS has had an expanding budget for almost all of its life, but that luxury is no longer going to be available.

The third reason that changes need to be made is demographic. Everyone knows that we are getting older as a nation, and our services need to be organised to deliver care for the next generation rather than the last generation. But we also have far more people with long term conditions surviving into adulthood. Barely half social care spending is spent on people over the age of 65 (Kings Fund Report at page 12)  and there are more people under the age of 65 with 2 or more serious long term medical conditions than those over the age of 65. The Better Care Fund will kick in in 2015 to tie resources to better integration of health and social care, leaving much less in the NHS kitty for traditional acute care.

So why when there is an impeccable health economics case for change in NHS services, is there no public appetite for that change? That is not a straightforward question. Nigel Lawson observed that “the NHS is the closest thing the English have to a religion”. Yet, as with all religions, informed debate is clouded by myths.

The first myth is that the problems of the NHS could be solved with more money. Spending on the NHS rose 7 fold between 1949 and 2002 (allowing for inflation) and has continued to rise since then. More money might delay difficult decisions or cushion the fall, but more money of itself is not the answer. A high proportion of NHS acute care is provided to the frail elderly and, with an aging population, we need maybe 4/5% additional resources each year to carry on delivering the same level of services to our population. Although numbers of patients attending A & E are not rising dramatically, an NHS England report noted:

“There were 10.6% more emergency admissions in 2012/13 than in 2009/10. There is general consensus (though it is hard to identify the evidence) that patients presenting are more ill and hence more likely to need admission and have longer stays”

New, expensive drugs are coming off the pharmaceutical production line every year, offering marginal improvements on existing drugs but at a much higher cost. I could go on but please be assured that we can never spend “enough” on healthcare because the more we spend, the more demand there will be for state funded healthcare.

The second myth is that investment in the NHS is the best way to improve the nation’s health. Sorry but this is just not true. According to the WHO, around 80% of deaths from the major diseases, such as cancer, are attributable to lifestyle risk factors such as excess alcohol, smoking, lack of physical activity and poor diet.   Extra spending on medical treatment for people with preventable diseases is not top of the list of effective interventions. So if we care about the health of our people, extra spending on the NHS is not necessarily the right answer. It may be on rare occasions but prevention is better than cure.

The third myth is that the NHS equates to hospitals, and that the NHS delivers most of its care in hospitals. This is also simply not true. 92% of NHS care is delivered by GPs or in the community.   A significant proportion of NHS money is spent on managing people with long term conditions. However most of this case is or should be delivered outside a hospital setting. And the paradox is that the better that long term conditions such as COPD or diabetes are managed in the community, the less unplanned care has to be provided in hospitals.

But the NHS only really makes savings if it closes or substantially scales back hospital buildings. Removing one service from the acute sector but leaving the building and staff in place will simply result in those staff delivering care in those buildings to other groups of patients, with little if any overall saving.

These “myths” have made it virtually impossible to have a sensible discussion about what drugs or medical treatments the NHS should fund and how we should change the footprint of NHS buildings to get better value for money. We have NICE in the UK and US has the Patient Centred Outcomes Research Institute. But they are underfunded, dominated by supplier interests and can only scratch the surface of the rationing debate.

A nationally set list of drugs and treatments that are funded and not funded across the whole of the NHS is probably an expensive paperchase that will get nowhere apart from endless legal challenges. As the Kings Fund Report noted:

“Experiences from New Zealand, Chile, the US state of Oregon, Spain, Israel and Germany are not encouraging. There have been problems over enforcement and perverse outcomes in some cases. One of the best-known attempts to ration care was the Oregon approach that ranked treatments by priority and then set a cut off decided by the budget available. It led to treatable cancer being excluded from the benefits package”

That approach is, in any event, a non-starter in a system where politicians are the ultimate decision makers. The line “this was a locally made decision” has been seen as essential to insulate our politicians from disappointed patients.

It is an uncomfortable truth that, in a modern democracy, politicians are only able to “do politics” in the space in which public opinion allows them to operate. Politicians rarely lead public debate outside that legitimate area of public opinion and then they are described by the Sir Humphreys as being “brave, Minister”, with all its connotations of a lack of electability.

So who can move the space for public debate about change in the NHS? The answer is that there are many candidates and some are stepping up to the plate. This is the classic area where NHS England have the chance to lead – and their independence from government precisely creates the space that allows them to flourish. Special credit must go to NHS England’s medical director, Sir Bruce Keogh, for his work on the future shape of Accident and Emergency services even though NHS England is, of course, not the primary decision maker for commissioning these services. I may have disagreed with him about Lewisham but overall he has been brave on the future shape of A & E care.

The Medical Royal Colleges have a key role to play, as to academics those who work with the NHS on a daily basis in fora such as this.

And now – ladies and gentleman – I get on my soapbox and make no apologies for it.  This essential debate is most important at the local level because, in a federated service like the NHS, delivering change is a bottom up process. That means the local NHS leaders – which primarily after the Health and Social Care Act 2012 means the GPs who sit on the local Clinical Commissioning Groups – have to make the case for change locally.

And that cannot happen unless those who make NHS decisions locally invest far more time, energy and resources in educating the public about the choices that need to be made and actively lead local debate.

Local NHS leaders need to explain some home truths as opposed to colluding in the myth that health is too important to be about money. If my treatment, my A & E unit or my maternity unit is allowed to be seen to be too important to allow money to be mentioned, it is someone else’s elderly care services, mental health services or respite care that will pay the price.   Taking on the role of being a local commissioner means that these GPs have to shout loudly that not every cancer drug can be financed, not every small A & E unit should remain open and many community hospitals are totally uneconomic.   It is their job to drive local public debate in order to counter the myths of objectors waving shrouds.

To date the role of being the “big bad wolf” who cuts A & E or maternity units has been left to faceless NHS managers and the occasional brave public health doctor, or even worse accountants within the Trust Special Administrator process. But the financial challenges facing the NHS are now so vast and so close that the NHS has an urgent need to move services into the community in order to support the growing elderly population. These challenges are urgent and the NHS needs unprecedented levels of structural change.

As a lawyer you would expect me to end with the law. The legal duties on commissioners under the NHS Act require every part of the NHS to engage with patients but in particular local CCGs. NHS managers have, by and large, been rubbish at genuine patient engagement, often because it is an afterthought. The traditional NHS way is to make reconfiguration or drug rationing decisions first and then consult the public afterwards. Not only is this now unlawful due to the wide duties under section 14Z2 of the NHS Act 2006, it shows a short-sighted approach to the local politics and leads terrible decision making because supplier interests dominate the decision making process.

The public will only believe change is needed if they are trusted with all the data, and all of the options are openly debated at an early stage. But they also need to be repeatedly told as part of that consultation process that “we can only spend the money once”. To give credit, NHS England is trying hard to lead debate but the real debate needs to be led at a local level. The job of GP commissioners is to be community leaders for change. It means facing the local press and the radio, and crucially getting into the debate ring with the vested interests, including aspirant politicians, who are well-financed and will fight dirty. NHS commissioners need to fight back, holding on to the moral high ground at all costs and exposing the real costs of the choices that need to be made.

If the local NHS does not invest in and lead public debate, political “space” will never be created to give politicians the opportunity to do the right thing. It’s a public service and commissioners must engage with the public – the great unwashed as they were referred to in previous generations.

If local commissioners do not lead the debate on the reasons for NHS changes, elected politicians will have to oppose clinically required change. That will slow the change process or even prevent change happening.   And the losers will be those with mental health conditions, those suffering from chronic conditions and the frail elderly patients who don’t get the services they need because they are still being wasted on too drugs of marginal benefit and too many hospital buildings.

********

[1]

[8] See Regulation 4(2) of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012.

 

This article was first published on David Lock’s blog

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Health and Social Care Briefing – February 2014

ACTS

The Assembly has, to date, passed the following Acts of relevance to the health and social care community.

Food Hygiene Rating (Wales) Act 2013

This Act includes provision for food authorities to operate a food hygiene rating scheme and places a duty on food businesses to display their food hygiene rating at their establishment.

Human Transplantation (Wales) Act 2013

This Act aims to increase the number of organs and tissues available for transplant by introducing a soft opt-out system of organ and tissue donation in Wales.

National Health Service (Finance) (Wales) Act 2014

This Act is to change the current financial duties of Local Health Boards (LHBs) under the National Health Services (Wales) Act 2006 from an annual statutory requirement for expenditure not to exceed resource limit, to a regime which considers the financial duty to manage its resources within approved limits over a 3-year period.

Active Travel (Wales) Act 2014

This Act places a requirement on local authorities to continuously improve facilities and routes for walkers and cyclists and to prepare maps identifying current and potential future routes for their use.  The bill will also require new road schemes to consider the needs of pedestrians and cyclists at design stage.

LEGISLATION IN PROGRESSS – CURRENT BILLS

Currently, these Bills that are going through the Assembly

Social Services and Wellbeing (Wales) Bill

This Bill aims to provide, for the first time, a coherent Welsh legal framework for social services.  It will ensure a strong voice and real control for people, of whatever age, enabling them to maximise their wellbeing.  It will set the legal framework and infrastructure to transform services to meet changing social expectations and changing demography.

This Bill has completed stage 3 and is now at report stage.

Housing (Wales) Bill

This Bill will:

Strengthen homelessness legislation, introduce a licensing system for landlords and letting agencies, allow local authorities to charge a higher rate of council tax on long-term empty properties and set standards for local authority rents, service charges and quality of accommodation.  It will place duties on local authorities to meet the needs of gypsies and travellers and abolish the Housing Revenue Account Subsidy System.

This Bill is at Committee Stage 2.

Recovery of Medical Costs for Asbestos Disease (Wales) Bill

The purpose of the Bill is to enable the Welsh Ministers to recover from a compensator (being a person by or on behalf of whom a compensation payout is made to or in respect of a victim of asbestos related disease), certain costs incurred by the NHS in Wales in providing care and treatment to the victim of the asbestos-related disease.

This bill is currently at post-stage 4.  The Counsel General has written to the Chief Executive and Clerk of the Assembly to advise that the Bill will be referred to the Supreme Court for a decision relating to legislative competence.

FUTURE BILLS

Regulation and Inspection (Wales) Bill

A separate Bill to the Social Services (Wales) Bill to cover the regulation and inspection of the social care workforce, training and social care services in Wales.  The Government published a white paper on the 30th September 2013.  A draft Bill will come out for consideration in 2014.    Ministerial statement

POSSIBLE BILLS

Public Health (Wales) Bill

To provide the legislative basis for delivering improved life expectancy, wellbeing and reducing health inequality in Wales as promised both in the manifesto and in the policy document ‘Fairer Health Outcomes for All’.

A Green Paper consultation ended February 2013.  This consultation was to collect views about whether a Public Health Bill is needed in Wales.  No final decision is made at this stage.

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During 2012’s Olympic Games, the NHS was one of the historical triumphs the UK could flaunt in front of foreign visitors. And yet, since the coalition government came into power, they’ve been doing their damnedest to dismantle this altruistic institution. This is even though the Conservative Party promised in their manifesto to avoid doing just that.#

London Olympic Games Opening Ceremony

The Health and Social Care Act

The Health and Social bill hit the NHS like a freight train. The government’s reasoning is that the NHS is a failing institution that is no longer affordable, even though research shows that the NHS is one of the best international healthcare systems, is cost-effective, and is reviewed highly by those who receive care. Of course, there is room for improvement, but this attack on the NHS just doesn’t have the facts behind it.

Thanks to the Government’s Health and Social Care Act 2012, primary care trusts and strategic health authorities will be dismissed. Instead, we will have clinical commissioning groups, which will be in charge of £60bn of the NHS’s budget. All commissioning will occur through competitive tendering and NHS contracts will be opened up to private sectors. £250m has been freed up for this purpose and 105 private companies have been given an NHS contract.

From here, more than £750m worth of services will be tendered. There are huge profits to be made through privatisation, but the public will lose out. With all the staff reductions and cuts to the NHS, the coalition is setting up the NHS to fail, privatising as much as it can and lowering quality of care due to poor funding/staff numbers.

The Results of Tendering

Competitive tendering means that patients with serious illnesses will be shipped from one care provider to another, providing little continuity and increasing the likelihood of mistakes. This will be extremely difficult to coordinate and providers will be able to cherry-pick, leaving the NHS with the expensive and high-risk patients.

In actual fact, the Health and Social Care Act legislates against the free healthcare that we’re so proud of. The coalition government is banking on public ignorance to push these harmful motions against the NHS. 60 hospitals are at risk of going bankrupt due to financing extremely expensive PFI debts, but no hospital is safe from closure.

Yet, you’ll hear from the coalition that the NHS budget is protected. Cuts, dressed up as efficiency savings, are crippling this healthcare institution. Vital services, such as A&Es and maternity wards, are being shut down every day. Thousands of jobs have been lost and this will only result in people dying.

If you think it stops here, you’re wrong. Rationing of care will continue until we’re faced with a system that provides high quality care to those that can pay for it and low quality care to those from poorer backgrounds. Not everyone can afford health insurance. Will we still have the NHS in the years to come?

Produced for Hibberts.com focussing on current and topical subjects relating to governmental legislation which affects society.

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Monday 28th October will be the date when, just like Wallace,     Mr Rory Phillips QC got up and put on the wrong trousers. Then search as he might, there was no sight nor sound of Grommit coming to the rescue.

We now know that Lewisham has secured an historic 3 Minute Verdict victory and that Jeremy Hunt has told the Commons that he will
respect the Courts as the final arbiter of what the law means.’
– accepting the Court’s decision instead of continuing to try to bend and break it to his own agenda, Dame Joan Ruddock (Lewisham/Deptford) having gracefully admonished him :

‘Let me remind the Court told the SoS that his actions were illegal – that he lost the Appeal. Will he now leave Lewisham hospital alone and learn to respect the views of medical staff…‘   http://bit.ly/1amNdwr

After all the words, the meetings, the marching and the fundraising – the denouement. 11.43 am on Tuesday 29th October and with Mr Phillips’ arguments in fizzled out mode, we were suddenly told by the Master of the Rolls that he and his fellow Lords Justice were just ‘popping out for a moment to see what to do next’ – and with instruction for the rest of us to stay put.  Did they want more information or had they heard enough to let us all go?

But no –
in less time than it takes to make a cup of tea, the 3 Minute Verdict was with us. The Government’s ultra vires Appeal dismissed – unanimously.

The court was filled with stunned silence, the judges filed out to rows of bowed heads and then the realisation of the moment burst the silence with spontaneous applause and then dissolving into tears of shock and relief from those of us who have put a year of our lives to one side to fight on – 12 months to the day since Kershaw’s plans were revealed to Lewisham.

Now this evening we hear that the government will not be pursuing the case to the Supreme Court – presumably at last taking sound legal advice that there will be no future in it.

poster4hunt1-213x300  How this came to pass via the Court of Appeal makes for an extraordinary conclusion to a daily year-long fight. On 7th November, the written verdict was released and their conclusions are, to say the least, damning of the government’s actions.

Master of the Rolls Lord John Dyson ( the second most senior judge in England ) who clearly sweeps as he cleans up all before him, was accompanied on either side by Lord Justice Sir Nicholas Underhill and Lord Justice Sir Jeremy Mirth Sullivan – whose names alone promise a degree of mental agility which was far from present in the government’s case, for try as he might Mr Phillips could not make a pig’s ear into anything resembling a piece of legal silk befitting his status.

In his July verdict, Mr Justice Silber had given 8 reasons for his decision. Mr Phillips had obviously needed to trounce this and offered a myriad reasons for those findings as being ‘incorrect’  – as one wag in the gallery afterwards said, it was a performance which reminded him of a 6 year old being caught in the act and coming up with excuse after excuse to avoid the obvious truth from coming out.

In Court we were dragged through paragraphs, clauses, points and sections such that even the Master of the Rolls himself declared he had too many bundles, whilst his colleague declared ‘the bundle I am looking at is even bigger than the original!’ But perhaps even worse, given the weighty bundle issue, certain key papers from the government team had nevertheless been left out. Woops.  Certainly nothing of the kind had occurred at our immaculately run Lewisham People’s Commission with Michael Mansfield QC and team.

9173983207_c762f73642_z  Mr Phillips again returned to discussions of the interpretation of width – not of trouser sizes but of land mass. Lewisham was deemed to be ‘narrow’ whereas the ‘wide’ interpretation could seemingly refer to anything from the borough next door, to all of south east England and even to all of England in its’ entirety – ‘a complex matrix of inter-dependent services ‘ – according to Mr P, anything else being ‘half a job’.

As David Lock QC said for the campaign – going wide would lend itself to the view, that ‘just like dominoes’, any other hospital in England could be brought under the South London Healthcare Trust TSA wing. According to Mr Rory P it ‘wouldn’t be kosher if it didn’t bring in a wider area’ – which is an interesting non clinical perspective.

We were repeatedly assured that the TSA model is not a background route to re-configuration, but then Mr Hunt’s QC spent a large chunk of time describing the different re-configurations, whilst also plying an argument focused on how exceptional was this situation – and moreover how exceptional was the 5A TSA legislation. However it was clear that two exceptions do not re-configure into a justification.

The judgement reads – ‘far from assisting the Appellants case, the nature of the powers conferred by Chapter 5A – a procedure that is an exception to the normal reconfiguration process that Parliament has prescribed in the 2006 Act, which must be completed within tight time limits and with limited consultation – tend to support a narrow, rather than a broad interpretation of the powers conferred upon the TSA. Parliament would have been astute to guard against conferring too broad a power which might be used as aback door approach to reconfiguration.

Back doors clearly being left more than ajar, once again we had all found ourselves in the deceptively innocuous sounding jaws of ‘in relation to’ – even on occasion daringly extending to ‘relating to’.

ie. trust? which trust?

 Lewisham_simon-way-2-gimped

Context and construct were apparently all. At one point we veered across to the Local Govt Act 2000 and then rather unexpectedly down the leafy lanes of the Town and Country Planning Act. On day two Mr Phillips apologised for bringing irrelevant areas into his argument – and he did not mean Lewisham.

The warning calls from the Judiciary Bench came thicker and faster
‘It’s in your skeleton!’ ( aka ‘skelly’)
‘We do know all this – but is it material?!’
‘Do you really have to continue?’

Notably there was much emphasis from Mr Phillips on ‘the same words in the same statute may not have the same meaning’ until David Locke QC put paid to that little device with a direct quote from the appropriate guidance : ’ In relation to in the multiple meanings refers to the particular NHS body – not other NHS bodies’. Which pretty much consigned the government’s argument to the mortuary of spin – now borne out in writing where the Lords Justice state that the Appellants ( Government’s) submission that their ‘recommendations for Lewisham (in Chapter 5 of the Kershaw recommendations) naturally follow from the Chapter 4 SLHT recommendations…..attributes an unrealistically broad and ill-defined meaning to the words “in relation to”. 

Subsquently, the Lords Justice have also chosen to reveal that Mr Phillips somewhat bottled his own ‘narrow interpretation’ argument which he had presented in his Skeleton ie. that accepting Justice Silber’s interpretation would be ‘likely to prove to be a dead letter’ – which in legal parlance is likely to mean something very impolite.

We were even told that Jeremy Hunt sits at the ‘apex’ of our NHS – perhaps in the hope that we would feel both admiration and sympathy for his pointy end predicament – despite the H&SC Act having divested the SoS of his duty to the NHS.  Mr Hunt had apparently taken his actions empathetically ‘all for the NHS’ whilst painfully grappling along with Kershaw, all for the sake of Lewisham. Poor thing.

Once again Mr Phillips ( plus Mr Hunt ) is in receipt of a legal rebuke within the Judgement –
the fact that he may appoint a TSA only when he considers it “appropriate in the interests of the health service” (section 65B(2)) is misplaced.’

Concluding that whether ‘in relation to’ was examined in the context of the 2006 Act as a whole, or in the context of Chapter 5A in isolation, – the ‘natural meaning is that adopted by Silber J.’ ie Jeremy was wrong – and indeed acted illegally.

As Ms Laing for Lewisham Council said – ‘the TSA should have stopped at 4’, but like tumbleweed Team Hunt just kept on rolling. …

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As for the Court of Appeal’s conclusions on consultation – ie. did the Lewisham GPs and the Lewisham people have a right to flag up their dismay and fear about the plan and have their views listened to, or could their opinion legally be diluted by CCGs in Kent by the government’s nationally interconnected argument? They jointly took the decision to dismiss this element of the Appeal as irrelevant in the light of the ‘strained and unnatural’ interpretation of the ultra vires over-the-border aspect – they did though observe :

‘The absence of any requirement to consult any other Trust that might be affected by the recommendations is, in our view, a powerful indication that Parliament gave a TSA power to recommend action which would affect or concern or have an impact on the Trust to which he had been appointed and no other Trust’  
saved

 

Meanwhile – so many hospitals in London and elsewhere are now under grave threat.

The victory won in the court by the people of Lewisham will give hope by people who are disappointed by today’s announcement’ said Andy Burnham to the Commons on 30th October  http://bit.ly/1amNdwr questioning the announcement of service closures and downsizing in North West London, a time when A&E targets in London have been missed on 48 out of the past 52 weeks due to extreme pressures on the service

Yes, fight on we did – and when I paid a visit to Lewisham Hospital the following morning, did every single inch of it feel worth it. The Riverside building they would set up to sell off as a private concern and the 60% they wanted to demolish to use the site for private property development now felt at once less fragile and more firmly rooted in the ground.

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As we also know, the government are in the midst of pursuing a Clause in the Care Bill which the laid down a week before the hearing and which would enable them to take their longed for  ‘wider approach’ – so clearly they felt wobbly at the knees with regard to the Lewisham question even before proceedings began.

At one point Mr Phillips had said that he felt it was ‘his duty’ to introduce Care Bill Amendment 168A into the case – however Master of the Rolls Dyson immediately rebuked him, saying that it was not indeed relevant because at that point ‘the government could not be 100% certain of winning this Appeal’.  Indeed, Lord Justice Mirth Sullivan felt moved to join in with ‘one might observe it contains wording you wouldn’t use if minded to confer this sort of power in the first place’.  At which point mirth was not just on the bench but also in the public seating area.

In judicial terms we might not be too far off the mark if we read that as being a legal ‘you cannot be serious?’ to the drafters of said Amendment 168A – lately morphed into hospital land-grab Clause 118, nestled cuckoo-like in Chapter 4 of the Care Bill, currently making its’ way through the Common http://services.parliament.uk/bills/2013-14/care.html  and despite Earl Howe’s ‘dear me no’ protests, so accurely assessed by the Court of Appeal thus :

‘The new clause provides that references in Chapter 5A to taking action in relation to an NHS trust include a reference to taking action “in relation to another NHS Trust”. This is precisely the kind of provision that one would have expected to see in Chapter 5A if Parliament had intended it to have the meaning attributed to it by the Appellants.’

The Lewisham ruling and the ensuing Clause 118 are key components in the current and future re-configuration plans for the Government’s would-be dismantle of NHS A&Es and land-grab of hospitals in England – and further afield into Scotland and Wales if they can manage it. The back door having closed, the front door is under attack. The story is not over. The fight is not over.

In the meantime please encourage your MPs to support EDM 656 http://www.parliament.uk/edm/2013-14/656

Send letters to your local press to encourage readers to sign and circulate the 38Degrees petition http://you.38degrees.org.uk/petitions/jeremy-hunt-should-resign-and-take-his-hospital-closure-clause-with-him .

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Presentation on European Union Health Policy by Christopher Birt at our seminar in Sheffield, 11th October 2013

Longer presentation on the health implications of the Common Agricultural Policy

EU Health Programme 2008-13 “Together for Health” is coming to a close. Objectives:
•to increase health security:  emergency planning; patient safety; blood, tissues, cells, etc.;
•to promote health, by addressing health determinants and to tackle health inequalities;
•To generate and disseminate health information;  health information systems.
A new programme EU Health for Growth (2014-20) starts next year
•themes for 2008-13 to be continued;
•new emphases on innovation and sustainability of health services, public health, and cross-border health threats;
•everything to be subsumed into the wider objective for all EU policies and programmes:  to make the EU economy more dynamic, profitable, and export-oriented (linked to Horizon 2020).

Revision of the Tobacco Products Directive

Linda McAvan

Linda McAvan MEP

Expected to be agreed by the end of 2013.  Proposes:

•harmonised framework for tobacco sales, replacing 2001 rules;
•regulates non-tobacco (e.g. electronic and herbal cigarettes) – as pharmaceuticals?;
•labelling and packaging – 75% warnings;
•flavours and “health benefits” (e.g. menthol, liquorice, caffeine, vitamins, taurine) all prohibited;
•internet sales of tobacco products;
•tracking & tracing of tobacco products
Other aspects of tobacco policy
•agriculture:  “whole farm subsidies”; – tobacco is still a subsidised crop
•high tar tobacco and Trade – Tobacco grown in Europe is too high in tar to be sold in Europe.  It goes to developing countries.

Alcohol Policy

3 strands:
•raise awareness of PH concerns at EU and Member State levels;
•initiate actions at EU level, where competence allows;
•support and coordinate national actions;  identify and disseminate good practice.
European Commission  prioritised actions
•projects to reduce alcohol-related harm, especially to children and young people;
•support development of research methodologies to develop indicators;
•monitor binge drinking, especially by girls;
•curbing under-age drinking;
•development of health education programmes;
•supporting healthier and productive workplaces;
•report on the progress on of all of these.

Implementation of the  Patients` Rights Directive – October 25th

National Contact Points:

•who is best placed for this function?
•who has been consulted:
•what is happening?

Prior Authorisation:

•What are the policy objectives here?
•How will this be used?

Prices and tariffs:

•What is reimbursement tariff, and when payable?
•How to ensure non-discrimination?

Information to patients:

•Definition of entitlements – clear to patients?
•What information should be available to patients?
2 Comments

When the initial Trust Special Administrator recommendations for South London were made public there was an immediate chorus (of which I was part) which just said – he can’t do that. It was “obvious” that the TSA had no power to interfere in the service configuration of a trust, Lewisham, which was not under his control.  The Judicial Review by Lewisham Council on this point succeeded, and allowed the Judge to quash the decision – the Council should be congratulated for their intervention.

The case appears to have made clear that there are limits to the extent to which services can be reconfigured without going through the proper, albeit lengthy, reconfiguration process, with the Lansley 4 tests (including GP support) and the other steps, including extensive consultation and both Gateway and National Clinical Advisory Team  Reviews; and with potential for reference through the Local Authority to the Independent Reconfiguration Panel.

The law is now different and in the case of Mid. Staffs, which is a Foundation Trust, we have involvement of the regulator Monitor.  But the principle should still apply; you cannot evade proper process unless the statute very specifically spells this out.

With Mid. Staffs the TSA is recommending that the trust be wound up and its assets and staff split between other bodies.  That power is certainly there.  Now here is the “but”.  The TSA is also recommending changes to the configuration of services, in particular removing some services from Stafford Hospital.  The intention is to consult over these proposals but not through the usual reconfiguration process.  Can he do that?  Well I think there will be a strong case to argue – no.  The TSA appointment to a Trust cannot be used as a back door short cut to avoid the proper reconfiguration process.

The TSA might argue that the consultation over the next few weeks, plus all the work already done, was enough to satisfy the requirements even if the actual guidance and procedure had not been followed.  But this approach was tested by the Judge in the Lewisham Judicial Review and did not get much sympathy.  Who knows.

The approach with Stafford (and the approach with Lewisham) should have been based on making organisational changes first with various transfers then reconfiguration of services under the newly formed governance structures.  The TSA should bring about the transfer of assets and staff but any reconfiguration of services should still have to go through the full proper process, involving the newly formed bodies but led by commissioners.  That may take time and be difficult but it is right and legal.  Let’s face it, with both South London and Stafford the various authorities have been faffing about for years anyway – this time we ought to be able to take time and get it right.

And as a footnote yet again at attempt to bring about service reconfiguration has collapsed since those leading it (and their highly paid advisors) have failed in process – when is there going to be some comeback for all the waste of time and resource that implies?

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Conspiracy

Are they out to get us?

I am always wary about views which begin from the supposition of a global, international or even just national conspiracy of some sort; a conspiracy against the NHS which has shaped health policy for years. Views which imply those in government (of both main parties) and in the Department and its outposts, and the advisors, and some Non Executive Directors in trusts (etc) are secretly working on a grand plan.  I have worked many places in DH and NHS and am convinced they are incapable of a) keeping anything secret and b) planning anything – but if it was a really good conspiracy then that is what you would find.

I liked the 1997 slogan of 24 hours to save the NHS; but despite the regular assertions that the NHS is dead, dying or gone our GP surgeries, acute hospitals and other outposts appear to function pretty much as usual – if anything the problems are from too little change, not change on a catastrophic scale.  At least from the 2010 election campaign the public position of even the Tory party is to support a universal taxpayer funded free at point of need NHS – they differ on how that can be “provided”.

But, and it’s a big but, there is no doubt as we pointed out over and again in 2010 and 2011 the Tory/Coalition Bill/Act can easily be seen to be the opening move towards not just a regulated market for the provision of healthcare services but the basis for a different system altogether with top ups, co-payments and with commissioners just as insurance holders – the shape and scale of services being determined not by planning but by the market for the personal budgets we will have to hold.  We could see the free bit of our NHS reduced to providing basic and emergency care only.

It is also true that for two decades those who advocate markets and competition have won the argument.  Privatisation as a bogey word has lost almost all its force with the public.  There has been an increase of private providers into the NHS but still only on a small scale and you have incidents of poor care and good care in both public and private organisations. Marketisation and the commissioner/provider split is blamed by some for everything that ever goes wrong in the NHS and PFI is blamed for all the financial woes.  The reality is more complicated.

We know the point of the Act was to move to a regulated market with competition at its heart, and we know that will open further opportunities for private providers and see the decline of public provision – it’s a one way street.  The guidance and regulations flowing from the Act have not changed that. Assurances which apparently fooled (some) GP commissioners, LibDems and Royal Colleges were meaningless.

The NHS has suddenly woken up to the realities around public procurement that local government had to adjust to more than a decade ago.  They cope daily with the kind of stuff the NHS appear incapable of understanding as the rather sad attempts by the Department of Health to construct regulations has shown.

Within the EU the presumption is in favour of public procurement through competitive processes (like competitive dialogue), and it must always meet requirements around transparency and non-discrimination.  What is unclear is what happens around the provision of a clinical service.  Pre 2003 when we had a more coherent NHS it was pretty safe to assume that arrangements between the PCTs and the NHS trusts were not proper legal contracts and so outside the scope of procurement law altogether.

Then we had Foundation Trusts which were connected to commissioners by legally enforceable real contracts which opened the door to challenges, but nothing much happened.  By 2010 with over half of provision through FTs there was still little sign of any challenges.  Obviously the conspirators were biding their time.  The most plausible explanation of why nobody challenged is because the stance of the then government and indeed its policy documents and guidance suggested they would support commissioners who acted sensibly, even if they simply renewed annual contracts with FTs.  The presumption was against having an EU competitive process. The preferred provider interlude should be seen as reinforcing that attitude. The policy was to have only a quasi or internal market within a managed system.  It was arguably inconsistent with EU directives but never tested in the courts.

Now we have a government which wants competition as the driving force, so that is the default – you have to have a competition unless you have a good reason not to.  To drive this home any dispute is taken away from the DH/NHS and given to an independent regulator which has a purpose to favour competition.

However, nothing has changed in EU land and the text of the regulations plus the recent assertions from the NHS Commissioning Board and Monitor say nothing much else has changed in guidance and policy terms.

Even if that were true it’s irrelevant – what matters is what commissioners think they are expected to do.  Will they take the risk of being challenged or will they do the easy (but expensive) thing of using tendering even if that just proves there are not suitable alternatives to current arrangements?

PCTs used to have a degree of protection so if they were challenged they would expect get some support if they had acted reasonably.  Now the opposite is true; each CCG is an island – autonomous and vulnerable.  CCGs are fledgling bodies without any noticeable expertise in the complex world of procurement; so they go to the Commissioning Support Units or to the usual suspects for advice.

You do not need to be paranoid to see the huge risk that transaction, contracting and procurement costs are going to be extensive – money taken out of care.  It is also obvious that there will be challenges and these will succeed.  All this opens further the route for private providers to come in and cherry pick potentially profitable services.  The use of any qualified provider is an easy option for commissioners for any service that has credible potential suppliers (AQP for A&E in London!).  It’s a one way street as any possibility of creating new NHS providers or even to adequately support any NHS provider which struggles are all gone.

How fast and for how long this happens depends a bit on us.  We can be activists within the system and try to slow things down.

How fast this demise takes place is arguable.  Most don’t think it will be quick but it will be inevitable unless we change government.

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