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:
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:
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."
Link to the Bill as it stood at presentation to the Lords
Clause 1 of the Bill states:
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:
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.