health and social care bill
More questions than answers?
19 January 2011
The Health and Social Care Bill, published today, covers a lot
of ground, and needs to be reviewed in detail, which we will do
over the next couple of weeks. But at first glance it does not seem
to contain any surprises, or answer many of the bigger questions
people have been asking.
The government’s sweeping reforms of the NHS are proving to be
very contentious, and the increasing political sensitivities mean
that significant changes are possible as the Bill goes through
Parliament over the next few months, especially after the criticism
made by the Health Select Committee yesterday, and with the cost of
the transition to GP consortia put at around £1.2 billion in the
government’s own impact assessment.
The ultimate objective, explained by Sir David Nicholson in his
letter accompanying the government response to the consultation on
the White Paper, ‘Liberating the NHS’, is to create a “truly
patient led and customer focussed NHS”. The main impact of
that consultation process, concluded in December, has been the
introduction of ‘pathfinder’ GP consortia and the concession that
maternity commissioning will also now become part of GP consortia’s
commissioning remit.
In fact, progress towards Andrew Lansley’s reforms is already
well underway on the ground, and the main building blocks are
unchanged, at the moment, since the White Paper in July. These
are:
- The National Commissioning Board will be set up during 2011,
with the task of helping consortia of GPs become established, ready
to take on shadow allocations for commissioning with 80% of the NHS
budget from April 2012. A second wave of ‘pathfinder’ GP consortia,
announced this week, brings the total to around 140 consortia,
covering half of England’s population.
- In the meantime, PCTs are already forming ‘clusters’, with
recent regulations enabling the appointment of joint chief
executives to manage the transition and cope with the ongoing loss
of staff prior to their abolition in April 2013, (though the
government response to the White Paper consultation raises the idea
that there may be a future role for some PCT clusters beyond that
date, if the Commissioning Board wishes.)
- Abolishing SHAs in April 2012.
- The Provider Development Authority is to be established by
April 2012, to help the Foundation Trust. pipeline, and the
obligation remains for all NHS Trusts to become FTs, or merge with
an FT, by April 2014.
- ‘Any Willing Provider’ will be able to offer NHS care.
- Making the NHS more accountable and reducing health
inequalities by establishing ‘Public Health England’ in 2011/12.
Local authorities are already taking on a much wider public health
role through ‘health and well-being boards’ and supporting choice
and complaints about healthcare through ‘local healthwatch’.
- There will be more opportunities for NHS organisations to save
money and resources by working together and with other public
sector and private sector partners, with provisions supporting
collaborative commissioning and pooled funds amongst others.
Though the Bill runs to 367 pages (plus 165 pages of impact
assessments), it covers a massive range of issues, and there is
relatively little new detail on some of the key issues, as Andrew
Lansley hinted when he spoke to GP leaders recently, on the basis
that this will leave them with maximum freedom in the way that they
try to make the new systems work.
As we discussed in last month’s edition of the health law update
the size and shape, and basic legal structure of the GP consortia
is still not prescribed. Consortia will have to have a
constitution, to be approved by the Commissioning Board in due
course, though the Bill only requires that an applicant consortium
must present the Board with its name, members and area, and include
in the proposed constitution the procedures it proposes to adopt,
especially for decision making and managing conflicts of interest
(see s21 and Schedule 2 of the Bill, amending the Health Act
2006).
It is not yet clear how some fundamental problems will be dealt
with – the level of involvement of GP consortia in commissioning or
quality management of primary care services, and how conflicts of
interest can be avoided; and how will the GP consortia cope with
responsibility for performance management of individual GP members,
or the constituent practices, especially with the pressures applied
by the cash incentives of the 'quality premium'. It may be even
more difficult to manage performance steadily across a year when
the 'quality premium' can be paid in advance, at the discretion of
the Board, if it appears that the consortium “is likely to perform
well during that year” (s23, adding s223L to the Health Act
2006).
Many of the challenges are practical issues, being explored by
the GP Consortia pathfinders – will the management allowance, and
the resources available to them from the PCTs, local authorities
and the private sector, be sufficient in practice? How will GPs
approach the role of rationing resources, and how will this affect
the relationship with patients?
But there are still significant unanswered questions we might
have hoped the Bill would deal with. Where will responsibility sit,
for instance, for individual funding requests and for continuing
healthcare? Will those commissioning staff remaining in April 2013
TUPE across from PCTs to consortia?
Like many NHS bodies before them, both the Board and GP
consortia are obliged to perform their functions “effectively,
efficiently and economically” and have an absolute statutory duty
to break even (ss 19 and 20, and ss 22 and 23 of the Bill for the
Board and consortia respectively), but further clarity will be
needed in relation to the range of specific functions that they
will be given, including the various statutory functions, going far
beyond commissioning, currently being performed by SHAs and PCTs
before the reality of these wide reaching duties can be fully
understood.
It is likely that the debate surrounding the Bill’s progression
through Parliament will assist in putting some flesh on the bones.
Although it is noted that the Secretary of State’s power has been
somewhat curtailed in relation to his ability to make directions,
it is expected that supporting regulations and directions will
necessarily deal with more specific issues over the next couple of
years, as the reality of the reforms on the ground continues.
Next week, we will consider the content and implications of the
Health and Social Care Bill in more detail, with:
- Rachael Jellema on the employment and HR implications of the
creation of new organisations, and the demise of PCTs and SHAs,
especially the TUPE issue.
- Rachel Williams on the implications of GP commissioning, and
exposure to public procurement and European rules.
- Emily Birkett on commercial governance and the wider statutory
duties of GP consortia, including involvement and engagement,
safeguarding and information governance.
- Oliver Pritchard on the process towards Foundation Trusts and
the implications of Any Willing Provider.
- Mick Suggett on the property and premises issues likely to face
GP consortia and others in the transition and afterwards.
- Chris Webb-Jenkins on the increasing role of local authorities
in healthcare and public health.
- Ben Troke on issues of liability and litigation, including
rationing treatment and the NHS Constitution, patient safety and
fragmentation, and indemnity for negligence.
The content of this bulletin is provided for the purposes of
general interest and information. It contains only brief summaries
of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.