The Health and Social Care Bill 2011

Thu, 30 Jun 2011

By Mike O'Brien
The Health and Social Care Bill, despite recent changes is a major reform of the NHS. This article sets the reforms in the context of the recent government announcements and looks at the timeline for implementation.
 
The Timetable for the Bill
 
When it had its first reading in the Commons on 19 January 2011 the timetable for the Health and Social Care Bill was to get it through three readings and a committee stage in the Commons and the Lords by the summer break. That timetable has changed. The Bill had completed its committee stage in the House of Commons on 31 March 2011 but it was clear that there was strong opposition from the medical profession and so on April 4th it was “Paused”. The Government set up an independent group known as the NHS Future Forum to review the Bill. The group, led by Birmingham GP Prof Steve Field, discussed issues with the medical profession and reported its recommendations for amendments to the Government on Monday 13 June. On June 20, the Government published its “Response to the NHS Future Forum Report”, and proposed substantial amendments to the Bill. It has now gone back into the Bill Standing Committee in the Commons. Evidence from medical organisations was heard in late June and the Government has listed a large number of amendments for debate. It aims to get the Bill out of Committee on the 14th July and it hopes to get “Report” to the Commons and 3rd Reading on a day before the House rises on the 24th. That means the Lords must have three readings and a committee stage in the autumn in “the Spill over” period. If the Lords amend the Bill, there may be further delay to allow what is called “Ping Pong” between the Lords and Commons until agreement is reached. The Bill should be before the Queen for signing by November.
 
These delays are inconvenient rather than damaging to Government reform plans. The start date for organisational changes that require a statutory basis may have to be put back but most of the preparation for reform can go ahead without the statute. 
 
Summary of key aspects of the June changes
 
The most significant change announced after the “Pause” was that GP Consortia would henceforth be known as Clinical Commissioning Groups (CCGs). The name change is because in addition to GP’s at least one nurse and one secondary care specialist doctor will be appointed to CCG governing bodies. GP’s will remain the dominant group on the CCGs.
 
All GP practices will still be required to become members of a CCG which will hold real budgets and commission the majority of NHS services for patients including elective hospital care, rehabilitative care, urgent and emergency care, most community health services, and mental health and learning disability services. But even though PCT’s will cease to exist in April 2013 some CCGs will not be authorised to take on any part of the commissioning budget in their local area until they are ready and willing to do so. Where a commissioning group is ready and willing, it will be able to take on commissioning responsibility earlier. Where a group is not yet ready, the “local arms” of the NHS Commissioning Board will commission and GP’s will join a shadow CCG until it is approved to take over commissioning.
 
The NHS Commissioning Board, which will become a national body, is likely to be the real powerhouse of the NHS in the future. Its Chief Executive will be Sir David Nicholson, who currently runs the NHS. He is a strong personality with a clear view about how the service should be run and this will be his opportunity to deliver his vision. He was the advocate for the notion that over the next few years £20Billion could be carve out of savings in the £103 Billion NHS budget to reinvest in new services. The Board will hold CCGs to account for quality standards and patient outcomes, and will retain responsibility for commissioning some services, including primary care and some specialised services. 
 
SHAs will disappear in April 2013 and we are already seeing clusters of Primary Care Trusts (who have taken over management of the local NHS in the interim period) taking on some of their responsibilities but there will be regional arms of the national Board. Sir David Nicholson insists they will be much smaller than the SHA’s but these regional arms will in practice wield significant responsibility and oversight for some time to come. As with many health reforms, what the law says and how the NHS implements it may differ. The politicians may talk of devolving power but that the regional arms of the Board in the region could remain a strong lever for central control in the NHS; it is however likely to be control by the Board rather than directly by the Secretary of State.
 
Hospitals and other “NHS Providers” will however get autonomy and this is reflected in the directive that all Trusts are to become FTs where possible by April 2014. It is clear that some Trusts will not meet this deadline and will continue to struggle to reach the standard required to become an FT. The government is establishing an NHS Trust Development Authority to assist with the transition. It was originally expected that failing providers will largely be dealt with by the market, that is they will be taken over by neighbouring hospital trusts or by the private sector or potentially put into administration; but the post ‘pause’ regime is likely to be less market driven and the Department is more likely to respond to failing providers by bringing in NHS “managerial trouble-shooters” to turn around the struggling providers and encouraging mergers with successful FT’s. 
 
The Bill gives Monitor substantial powers to ensure continuity of essential services at a local level, while the Care Quality Commission (CQC) continues to have the authority to fine or suspend services that fail to meet its essential safety and quality requirements. These authorities will apply to all providers of NHS health and social care, including private organisations and third sector providers.
 
To generate greater competition and remove some of the barriers to entry for new private providers, services will be commissioned in due course from ‘any qualified provider’. “It is guided by the idea that competition will stimulate innovation and improvements, and increase productivity,” said Andrew Lansley. This was due to start in April 2012 but will now be gradually phased in.
 
The coalition government also aims to create the ‘largest and most vibrant social enterprise sector in the world’ (Department of Health 2010[please insert reference] p 36), particularly through extending the freedoms of foundation trusts. There will be greater legal flexibility to allow ‘spin-offs’ from FTs, in which particular clinical areas can be established as social enterprises providing services to the FT’s.
 
Monitor
 
Monitor was touted under the original reforms to become the economic regulator for all providers of NHS services, with joint responsibility with the Care Quality Commission for licensing providers. This remains the case ‘post pause’ but with some additional restraints. It will not be quite as market driven as originally intended. The aim remains that Monitor will promote competition where appropriate, set prices, and secure the continuation of ‘designated’ services. This role represented one of the most significant innovations among the reforms and was described by Professor Chris Ham of Birmingham University as a key component of ‘the most ambitious attempt yet seen to apply a system of market regulation to the NHS’. The more recent announcement that Monitor will also be responsible for integration of the NHS is not designed prevent the competition function from operating , but will necessitate the organisation making a balancing judgement about whether competition can be supported if it will lead to a more disjointed NHS. Quite how this will work is unclear. Monitor will need to balance both competition and integration in decisions. It can be anticipated that the courts through judicial reviews will cast an eye on how this balancing judgement is exercised.
 
Monitor will continue to ensure providers act within competition law, that they meet information reporting requirements, and that continued access to ‘designated’ services is maintained. It will, it is assumed, continue to have the powers to set special licence conditions in circumstances listed on the Departmental website as: 
 
a. if a provider enjoys a particular position of ‘market power’ within its local
area, or if there is a need to protect service continuity
b. to trigger a special administration regime in cases of service failure
c. to protect assets or facilities
d. to require monopoly providers to grant access to their facilities to third parties. How this power will be balanced with the integration duty remains to be seen.
e. to issue fines
f. to suspend or revoke a provider’s license. 
 
A greater role for local authorities
 
Local authorities will take on significant responsibility for leading public health at a local level. New Health and Well Being Boards will be established in each county council or unitary authority area. These HWB’s would have two main functions: assessing the health needs of their local population and co-ordinating and integrating the commissioning of health and social care services. Council Overview and Scrutiny Committees, the National Audit Office and the new Health Watch which replaces the community Links will all so be able to demand reports. CCG’s and providers are likely to face considerable demands for information from these bodies. How much bureaucracy such accountability will generate is unlikely to be appreciated for a couple of years.
 
Other amendments to Bill will also:
 
• Require the NHS CB and CCGs to take “active steps to promote” the NHS Constitution 
• Make explicit that the SoS is accountable for the NHS
• Create explicit powers for the Secretary of State to oversee and assess the national NHS bodies, to ensure they are performing effectively, while respecting their operational independence.
 
Increased clinical advice and leadership in the NHS is a major change. A range of professionals are to play a part in the clinical commissioning of patient care, including through clinical networks and new “Clinical Senates” hosted by the National Board. There will be stronger duties on commissioners to obtain an appropriate range of clinical advice and “clinical leadership” will be “embedded” in the CCGs “who will make high quality, evidence-based decisions”, supporting integrated care. This is an interesting innovation which has potentially substantial consequences. Beginning with the major conditions it is likely that the Senates will devise approved Clinical pathways for the treatment of patients. Providers will be professionally obliged to adhere to these and contracts are likely to specify adherence to the approved pathways. In America’s money driven health sector, companies like Kaiser have used standard treatments and services to both improve care for patients and drive down costs. The problem for the NHS will be in getting specialists on the Senates to agree the details of pathways. Doctors like other professions have differing opinions on what is best. We will not know for some years whether this potentially worthwhile initiative realises its full potential in changing health care in the UK. 
 
Public accountability and patient involvement was a key feature of Prof Steve Field’s Report and the Government has announced greater accountability for new organisations, including CCGs, strengthened requirements for close working between CCG’s and HWB’s. There will be more duties to “have regard to” patient, carer and public involvement and strengthen public involvement to reflect better the principle of ‘no decision about me without me’.
 
CCGs will receive the CQIN premium (a sum top sliced off budgets) only if they demonstrate good performance in quality of patient care and reduced inequalities in outcomes. The aim is to create a financial incentive to raise quality standards. 
 
Choice and competition remain important in the Government’s reforms. There will be no deliberate policy to increase or maintain the market share of any particular sector of provider. Interestingly this includes the private, voluntary and the public sectors. In other words, despite the newspaper reports on this change, it will not aim to keep the public sector in its current position. There is a commitment to “Keep the existing rules on co-operation and competition in the NHS”. These rules already do allow significant competition. 
 
There is a commitment to additional safeguards against cherry-picking and price competition. This is a potentially significant change because there has been concern about the private sector cherry picking certain types of treatment. How this is delivered still has to be made clear. 
 
The NHS Commissioning Board will promote innovative ways to make care more integrated, “exploring opportunities to move towards” single budgets for health and social care. This has long been the desire of everyone in health care because the separate strands of local authority and NHS budgets mean that shared responsibilities, particularly for the elderly in Care Homes sometimes results in costs being shunted between organisations and budget cuts being made in an unplanned way. The aim is worthy but until there is some merger of budgets it is difficult to see how “exploring opportunities” is going to make much difference. 
 
The Government wants to “extend personal health budgets as a priority, subject to evidence from current pilots”. In evidence to the Bill Commons Committee in late June Prof Steve Fields identified this area as one where the government did not implement his wish for a clear target date to introduce Personal Health Budgets. The two year pilots, which I initiated whilst Health Minister in early 2010, have some time to run and will then require evaluation. The Conservatives and Labour were both supportive of personal health budgets so it will happen but it may be that Lansley, if he remains as Health Secretary, will try to use this initiative next year as a way to bring markets more readily into the NHS.
 
Developing the healthcare workforce by “Health Education England” will be put in place more quickly to provide national leadership on the development of health education. There will be a phased transition for provider-led networks to take on their staff development responsibilities when they can demonstrate their capability. The government says it wants to “…ensure high quality management is valued across the NHS, with a commitment to retaining the best talent across the PCTs and SHAs.” It seems this means recruiting staff to other NHS bodies like CCG’s who have been made redundant from the dissolved organisations. Commissioning health care is a skill and one of the concerns about the management reorganisation was the loss of commissioning skills which could have been serious for the NHS. 
 
Assuming the Bill becomes an Act by November the Time table for change in the NHS is clear 
 
October 2011 - NHS Commissioning Board established in shadow form as a special health authority and SHA cluster arrangements in place, though this may delay for a couple of weeks for the Queen to sign the Bill.
 
During 2012 - Health Education England and the NHS Trust Development Authority are established as Special Health Authorities, but in shadow form, without full functions.
 
April 2012 - Any Qualified Provider phased in gradually
 
By Oct 2012 
o NHS Commissioning Board is established as an independent statutory body, but initially only carries out limited functions – in particular, establishing and authorising CCGs
o Monitor starts to take on its new regulatory functions 
o HealthWatch England and local HealthWatch are established 
 
April 2013 
o PCT’s cease to exist, but CCGs will not be authorised to take on any part of the commissioning budget in their local area until they are ready and willing to do so. Where a commissioning group is ready and willing, it will be able to take on commissioning responsibility earlier. Where a group is not yet ready, the “local arms” of the NHS CB will commission.
o GP practices will join a CCG or shadow CCG 
o SHAs and PCTs are abolished and the NHS Commissioning Board takes on its full functions 
o Health Education England takes over SHAs’ responsibilities for education and training 
o The NHS Trust Development Authority takes over SHA responsibilities for the FT pipeline and for the overall governance of NHS Trusts
o Public Health England is established 
o A full system of CCGs is established. But the NHS CB will not authorise groups to take on their responsibilities until they are ready 
 
April 2014 - NHS trusts to all be FTs. But if any trust is not ready by then it will be placed under new management.
 
April 2016 the transitional period ends where Monitor has retained oversight powers over FTs, except for newly authorised FTs, where Monitor’s oversight will continue until two years after the authorisation date if that is later.
 
A former Government Law Officer, he was Solicitor General 2005-7. He was Minister of State for Health 2009-2010 and held a range of posts as a Minister for 13 years including the Foreign Office and other Departments. He qualified as a solicitor in 1987 and transferred to the Bar this year, when he joined No5 Chambers.

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