Health and Social Care Bill 2011

Health and Social Care Bill 2011

The Health and Social Care Bill was introduced into Parliament on 19 January 2011. The Bill took forward the areas of Equity and Excellence: Liberating the NHS (July 2010) and the subsequent Government response Liberating the NHS: legislative framework and next steps (December 2010), which required primary legislation.

The Health and social care Bill proposed to implement a radical reorganisation of the NHS which aimed to devolve responsibility to clinicians, cut management costs, and reduce political involvement in the health system. The Bill was criticised for a number of reasons. The 3-month “listening exercise”, delaying progress of the bill through Parliament, was launched in April 2011 in response to widespread concerns about the impact of the bill. A NHS Future Forum was set up to lead the exercise.  The government presented a revised bill in the parliament based on the NHS future forum recommendations. The Bill went through the Commons in Sep 2011 and is currently in the Lords.

The original Bill presented in Parliament on 19th Jan 2011 contained provisions covering the following key themes:

  • Establish an independent NHS Commissioning Board responsible for the operational management of NHS (i.e. allocate resources and provide commissioning guidance). However, the Secretary of State would still account to parliament for the performance of the NHS and the Bill included wide-ranging powers for him/her to intervene in the system.
  • Increasing GPs’ powers to commission services on behalf of their patients. This involves giving groups of GP practices – GP consortia – ‘real’ budgets to buy care on behalf of their local communities from ‘any willing provider’. This was aimed to improve clinical involvement in commissioning and addresses the current weakness in the commissioning arrangements, with PCTs lacking the knowledge and skills to challenge providers about the quality and efficiency of their services.
  • Developing Monitor, the body that currently regulates NHS foundation trusts, into an economic regulator with three key functions: promoting competition, setting prices, and ensuring continuity of essential services.  The Bill gave Monitor wide-ranging powers to impose licence conditions to prevent anti-competitive behaviour, apply sanctions to enforce competition law and refer malfunctioning markets to the Competition Commission. This mirrored the approach taken in the utility sector and aimed to open up the NHS to challenge by the Office of Fair Trading and the Competition Commission.
  • Cutting the number of health bodies to help meet the Government’s commitment to cut NHS administration costs by a third, including abolishing Primary Care Trusts and Strategic Health Authorities.
  • Ensuring all NHS trusts achieve foundation trust status by April 2014
  • Extending the role of local authorities in the health system by creating Health and Wellbeing Boards (HWBs) and giving them responsibility for public health. The aim was to strengthen democratic legitimacy and ensure that commissioning is joined up across the NHS, social care and public health. HWBs will be responsible for producing joint strategic needs assessments and developing a joint health and well-being strategy for their local area. The core members of HWBs will be GP consortia, the Director of Adult Social Services, Director of Children’s Services, Director of Public Heath, and the local Health Watch.

The Bill was criticised because of the following:

  1. The primary criticism was about the bill’s intention to amend one of the founding pillars of the NHS to read “any willing provider” rather than the current language guaranteeing a needed service exclusively via the NHS and its direct affiliates and partners. These critics noted that the NHS is not allowed to have any bias based on profit or competition; rather it is committed by law exclusively to medical objectivity and patient care, and the changing of the language of the NHS tenets to include “any willing provider” is thinly-veiled code to allow the private sector inside the NHS, disrupting its inner workings or even potentially opening up local NHS operations to the possibility of forced closure because the private industry has out-competed them and corralled them into bankruptcy.

Summary: The Bill signalled a significant shift towards a more competitive market for health care. While increased competition need to be supported in areas where it demonstrates benefits to patients, the Bill appeared to move towards promoting competition at the expense of collaboration and integration

2. GP-led commissioning (GP consortia) was as an opportunity to improve patient care. However, there was considerable disparity in the capability of local health economies to take on the commissioning role and hence the deadline of April 2013 for GP consortia to be established was felt to be too tight. The winding down of primary care trusts (PCTs) and strategic health authorities (SHAs) without providing time for GP consortia to be established caused anxieties regarding services failing or patient care suffering.

Further, the Bill included few requirements on the governance of consortia. The critics pointed out that the consortia governance structure should be clarified to include a wide range of health professionals (including hospitals specialists) and involve the public in their work.

3. The critics also opposed that all NHS trusts should be forced to become foundation trusts by 1 April 2014, given the unacceptable outcomes that have resulted in a small number of cases where the financial imperatives required to achieve FT status have been pursued at the expense of good-quality patient care . It was feared that intensifying the pressure to achieve foundation trust status may lead to distorted priorities and drive trusts to place the achievement of this target above all others, including safe patient care.

4. Bill gave health and wellbeing boards insufficient powers to fulfil their remit in joining up local commissioning.

Revised Bill addressed a number of issues in the original bill and is currently in the Lords. The Government hopes that the Bill will be passed in the Lords and would go for Royal assent before the end of 2011

Key changes in the revised Bill:

  1. Competition: There is emphasis now on integration rather than competition with Monitor’s powers now focused on preventing anti-competitive behaviour rather than promoting competition. The Bill signals a more nuanced approach to competition by ruling out competition on price (evidence suggests that price competition reduces quality and increases transaction costs) and a commitment to phase in ‘any qualified provider’ from April 2012 (this should reduce the risk of fragmentation of services).

2. Commissioning: Wider clinical involvement in commissioning, strengthen governance arrangements for local commissioning groups and adopt a more flexible approach to implementing clinical commissioning.

GP consortia will be re-named clinical commissioning groups and will be required to obtain a wide range of clinical advice and consult a number of bodies in developing their commissioning plans. Existing clinical networks (groups of experts working in specialist areas such as cancer) will be strengthened and new clinical senates established to bring together a wide range of health and social care professionals.

Changes made to the governance of clinical commissioning groups: Clinical commissioning groups will also be required to include a nurse and a hospital specialist on their governing body besides two lay members (one to champion patient and public involvement and one to lead on governance).

The April 2013 deadline for establishing GP consortia has been relaxed – clinical commissioning groups will be established either in full or in shadow form by this date, but take on their new responsibilities only when they are ready and willing to do so.

3. The government has relaxed the April 2014 deadline for the remaining NHS trusts to become foundation trusts, although it stresses that the majority will still be expected to meet this deadline.

4. The role of health and wellbeing boards has been strengthened in a number of ways. They will be given a stronger role in the development of local commissioning plans, more responsibility for promoting joint commissioning and health and social care integration, and a lead role in local public involvement. They will also be able to refer commissioning plans back to clinical commissioning groups or the NHS Commissioning Board if they are not satisfied it takes proper account of the local health and wellbeing strategy.

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