The creation of the "Welfare State" took place in the period 1945-51. The National Health Service (NHS) - created by the National Health Service Act 1946 - was, like the provision of Education and Legal Aid, a major plank in the welfare state. Although the NHS has been extensively modified by successive governments since 1946 - (some might say "mauled") - it still survives. The latest Act is the National Health Service Act 2006. Further modification ("mauling") is planned by the coalition government under the terms of the Health and Social Care Bill which has passed the House of Commons and is now before the House of Lords. To say the least, this is an exceptionally controversial Bill. It is also a massive Bill extending to 12 Parts (303 Sections) and 24 Schedules.
The Bill was introduced to the House of Commons on 19th January 2011 and underwent extensive amendment in April and July. It is reported that further concessions by the government are likely in order to get the Bill through the House of Lords - Telegraph 10th October 2011. There is concern that aspects of the Bill have not received sufficient scrutiny and opponents, including Lord Owen and Lord Hennessy, have said:
"While we accept it is not the role of the House of Lords to challenge the legislation in its entirety .. we do believe it imperative the House of Lords provide a mechanism for far greater in-depth consideration of a number of parts of this bill which cover duties and constitutional issues."
The government case FOR the Bill is amply set out on the Department of Health website which offers a range of 16 "Factsheets" and these include an "Overview of the Bill", "The case for change" and the "Role of the Secretary of State." Against this are many views which appear to be quite well summarised in Tribune Magazine (11th September 2011) - "Coalition's Health and Social Care Bill will destroy the NHS as we know it, campaigners warn." It is seen by some as privatisation of care with profit-making providers supplying services.
One key aspect of the Bill concerns where the legal duties to provide services lie. Currently, it is the Secretary of State who has this duty. In relation to these "duties" the Bill makes major changes which this post will now consider.
This Act places a duty on the Secretary of State:
(1) - The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement—(a) in the physical and mental health of the people of England, and (b) in the prevention, diagnosis and treatment of illness.
2) The Secretary of State must for that purpose provide or secure the provision of services in accordance with this Act.
In addition to this, the Secretary of State has "general powers" ( as opposed to duties) under section 2 and there are "duties" imposed by section 3 in relation to securing specific services. The section 3 duty is however worded "to the extent considered necessary" by the Secretary of State and there is reference to meeting "all reasonable requirements."
The Health and Social Care Bill:
Link to the Bill as it stood at presentation to the Lords
Clause 1 of the Bill states:
(1) The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement—
(a) in the physical and mental health of the people of England, and
(b) in the prevention, diagnosis and treatment of illness.
(2) For that purpose, the Secretary of State must exercise the functions conferred by this Act so as to secure that services are provided in accordance with this Act.
(3) The services provided as part of the health service in England must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed.”
Clauses 2, 3, 4 and 5 provide for, respectively, a duty regarding improvement of the quality of services; reducing geographical inequalities (sometimes referred to as "postcode"); to promote the autonomy on the part of persons exercising functions in relation to the health service of providing services for its purposes and a duty to promote research.
The duty under Clause 4 appears to be of concern. Clause 4 reads:
In exercising functions in relation to the health service, the Secretary of State must, so far as is consistent with the interests of the health service, act with a view to securing -
(a) that any other person exercising functions in relation to the health service or providing services for its purposes is free to exercise those functions or provide those services in the manner that it considers most appropriate, and
(b) that unnecessary burdens are not imposed on any such person.”
This ushers in minimal interference with those who provide services within, or for, the NHS. Many such "providers" will, no doubt, be private profit-making enterprises and they will clearly enjoy considerable autonomy which the Secretary of State is under a duty to promote and protect.
Under Clauses 8 and 9 of the Bill, additional subsections will be inserted into section 2 of the NHS Act 2006. Clause 8 inserts a new section 2A into the 2006 Act and this deals with protection of the public's health. Clause 8 inserts section 2B and refers to steps to be taken by LOCAL AUTHORITIES - (already strapped for money?) - regarding the improvement of the health of people in the local authority's area.
Clause 10 amends section 3 of the NHS Act 2006. In essence, this removes the duties currently placed on the Secretary of State to provide certain services and, subject to the terms of the amended section 3, places those duties on "Clinical Commissioning Groups." Section 3, if amended in accordance with the Bill, would read:
Duties of clinical commissioning groups as to commissioning certain health services
(1) - A clinical commissioning group must arrange for the provision of the following to such extent as it considers necessary to meet the reasonable requirements of the persons for whom it has responsibility -
(a) hospital accommodation,
(b) other accommodation for the purpose of any service provided under this Act,
(c) medical, dental, ophthalmic, nursing and ambulance services,
(d) such other services or facilities for the care of pregnant women, women who are breastfeeding and young children as the group considers are appropriate as part of the health service,
(e) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as the group considers are appropriate as part of the health service,
(f) such other services or facilities as are required for the diagnosis and treatment of illness.
(2) For the purposes of the duty in subsection (1), services provided under -
(a) section 83(2) (primary medical services), section 99(2) (primary dental services) or section 115(4) (primary ophthalmic services), or
(b) a general medical services contract, a general dental services contract or a general ophthalmic services contract,
must be regarded as provided by the Secretary of State.
(1A) For the purposes of this section, a clinical commissioning group has responsibility for—
(a) persons who are provided with primary medical services by a member of the group, and
(b) persons who usually reside in the group’s area and are not provided with primary medical services by a member of any clinical commissioning group.
(1B) Regulations may provide that for the purposes of this section a clinical commissioning group also has responsibility (whether generally or in relation to a prescribed service or facility) for persons who -
(a) were provided with primary medical services by a person who is or was a member of the group, or
(b) have a prescribed connection with the group’s area.
(1C) The power conferred by subsection (1B)(b) must be exercised so as to provide that, in relation to the provision of services or facilities for emergency care, a clinical commissioning group has responsibility for every person present in its area.
(1D) Regulations may provide that subsection (1A) does not apply -
(a) in relation to persons of a prescribed description (which may include a description framed by reference to the primary medical services with which the persons are provided);
(b) in prescribed circumstances.
(1E) The duty in subsection (1) does not apply in relation to a service or facility if the Board has a duty to arrange for its provision.”
On its face, the Bill appears to retain the Secretary of State's duty to promote a comprehensive health service BUT the method of actually doing this is radically changed. In practice, the Secretary of State's true role changes to what might be described as oversight - mandating key requirements and monitoring. The actual duty to provide services transfers to the new NHS Commissioning Board and to Clinical Commissioning Groups. The Commissioning Groups will have extensive discretion and the duty relating to autonomy will prevent detailed interference with such bodies. The wording of the various "duties" is such that it will be far from easy to mount any legal challenge to locally-taken decisions not to provide services or, alternatively, to provide only limited or minimal services even though, at the top level, the Secretary of State has his "inequality duty."
The Bill contains many other provisions and full justice to it cannot be done in this post. A detailed description is helpfully provided in Parliament's Explanatory Notes to the Bill. Further features of note are the creation of a body - to be called MONITOR - with duties specified in Part 3. Health Service Providers will be licensed - Part 3. NHS Trusts will be abolished - generally viewed by their opponents as bureaucratic though the Bill itself creates bureaucracy of a different kind. The Care Quality Commission will have a committee to be known as Healthwatch England. Quite a number of public bodies will be abolished - Parts 4 and 10.
Given the changes to the Secretary of State's duty, is this the beginning of the end for the NHS as we have known it ? Of that, you be the judge.