| Health Bill [H.L.] - continued | House of Commons |
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Clause 16: Duty of Quality165. The White Papers The new NHS and Putting Patients First announced the intention to place a new duty of quality on NHS trusts. At present there is no statutory duty on NHS trusts in respect of the quality of care they provide to patients (although they owe a duty at common law to exercise reasonable care and skill in providing medical treatment and other services). This clause places a duty of quality on NHS trusts and Primary Care Trusts.
166. Under this clause, NHS trusts and Primary Care Trusts will be required to put and keep in place arrangements for monitoring and improving the quality of the health care they provide. A fundamental component of those arrangements will be the implementation of clinical governance arrangements. The concept of "clinical governance" was discussed in the consultation documents A First Class Service and Quality Care and Clinical Excellence, which set out in more detail the Government's plans to improve the quality of NHS healthcare. The main components of clinical governance as described in the consultation documents are:
It is intended that the detail of what is expected of NHS trusts and Primary Care Trusts in implementing clinical governance will be set out in guidance. The first tranche of clinical governance guidance was published in March 1999 (HSC 1999/065).
167. Subsection (3) enables the Secretary of State to extend the duty of quality to Special Health Authorities. The intention is to use this power in respect of the three Special Health Authorities that provide high security psychiatric services (Ashworth, Rampton and Broadmoor).
Clause 17 and Schedule 2: The Commission for Health Improvement168. The White Paper, The new NHS, set out the Government's intention to create a new Commission for Health Improvement. The Commission will be established as a body corporate to provide an independent check that local systems to monitor and improve the quality of health care are working. Proposals for the role and functions of the Commission were set out in more detail in the consultation documents A First Class Service and Quality Care and Clinical Excellence, published in July 1998.
169. The Commission is to be administered as an executive non-departmental public body. It will be held accountable through Ministers to Parliament for the effective performance of its functions. The Commission will be required to produce an annual report and annual accounts (see paragraphs 11 and 12 of Schedule 2), and will be subject to the jurisdiction of the Parliamentary Commissioner for Administration (see paragraph 17 of Schedule 2). Members of the Commission could also be required to appear before the House of Commons Health Select Committee, and the Accounting Officer for the Commission may also be required to attend before the House of Commons Public Accounts Committee.
170. Subsection (3) of clause 17 introduces Schedule 2 to the Bill. This Schedule makes additional, more detailed provisions regarding the Commission for Health Improvement. In particular it includes provisions in respect of the membership and staffing of the Commission and their remuneration, funding arrangements and reporting and accounts procedures.
Schedule 2171. Paragraphs 4, 5 and 6 provide for the membership of the Commission. The Commission will consist of a chairman appointed by the Secretary of State, one member concerned with the interests of Wales and appointed by the National Assembly for Wales, and other members appointed by the Secretary of State. It is intended that the membership will include people with a lay background as well as those with relevant professional expertise. Regulations will deal with matters such as how the appointments are made, persons who are to be disqualified, and the procedures of the Commission. The remuneration of members of the Commission will be a matter for the Secretary of State.
172. Paragraph 7 provides for the staffing arrangements of the Commission. In particular, paragraphs 7(1) to (3) provide for the appointment of the Director of Health Improvement, the chief executive of the Commission. Paragraph 7(4) concerns the appointment of staff. It is expected that the Commission will develop a number of teams to undertake its various functions. Each team would include staff with appropriate expertise who have been employed by the NHS to provide services and also those who make use of NHS services as patients and carers.
173. The Secretary of State will only be able to exercise his powers under paragraphs 4 to 7 of Schedule 2 if he has first consulted the National Assembly for Wales (see clause 59(5)).
174. Paragraph 8 enables the Commission to make arrangements for the performance of its functions by committees or sub-committees, members or employees.
175. Paragraph 9 enables the Commission to arrange for other individuals and bodies to assist it in its work. Examples of individuals and organisations from which the Commission may seek assistance include experts in particular clinical fields, academic organisations such as universities, professional bodies such as the Royal Colleges, and voluntary organisations.
176. Paragraph 10 allows both the Secretary of State and the National Assembly for Wales to provide funding to the Commission. The Secretary of State and the Assembly will be able to direct the Commission as to how it applies the funding it receives from them. As the Commission's role develops, it is envisaged that some of the Commission's work may be funded by charges paid by NHS bodies in respect of which it exercises its functions. Such charges may be provided for by regulations made under clause 18(2)(e). Paragraph 10 also provides that the Secretary of State and the Assembly may make loans to the Commission.
177. Paragraph 11 requires the Commission to keep accounts and submit them to the Secretary of State and the Comptroller and Auditor General. The Commission's accounts will be audited by the National Audit Office, which is headed by the Comptroller and Auditor General.
178. Paragraph 12(1) requires the Commission to make an annual report to the Secretary of State, in which it is envisaged that the Commission will set out the progress it has made during the year and the issues emerging from its work. It is intended that an annual report will be published.
179. Paragraph 16 amends the Public Bodies (Admissions to Meetings) Act 1960, so that the Commission will be required to conduct its meetings in open session (unless business of a confidential nature is being discussed or for other special reasons) and to make arrangements for the public to attend.
Clause 18: Functions of the Commission180. This clause sets out the Commission's functions. It will have four core functions:
and will perform such other functions in relation to health care provided by the NHS as are set out in regulations.
181. The Commission for Health Improvement will cover England and Wales, and will exercise the same functions in each country. The National Assembly for Wales will be able to determine how the Commission exercises its functions in Wales, by exercising the regulation and direction making powers in clauses 18(2), 18(3) and 19 (conferred on the Assembly by clause 59(2)). In addition the Secretary of State will only be able to confer new functions on the Commission (under clause 18(2)(e)) in relation to Wales, if this is first agreed with the Assembly (see clause 59(4)).
182. Subsection (1)(a). The Secretary of State may follow the advice given by the Commission in the exercise of the function under this paragraph by drawing the Commission's advice to the attention of health service bodies or, if necessary, using his powers of direction under section 17 of the 1977 Act (see clause 10) to require them to act on that advice.
183. Subsection (1)(b) provides for the Commission to conduct reviews of the implementation and adequacy of arrangements to monitor and improve the quality of health care which is the responsibility of NHS trusts and Primary Care Trusts. It is intended that the Commission should review every NHS trust and Primary Care Trust once every 3 to 4 years. During these reviews, the Commission will be expected to look for evidence that the arrangements are working and that they are consistent with established standards. Regulations under subsection (2) will set out how these reviews are to be conducted. The Commission will also be able to look at the actions of Health Authorities (and their Primary Care Groups or Local Health Groups) in the course of a review if it considers that their actions (for example, as commissioners of the services under review) are related to the issues it is examining. It is intended that the Commission's findings will identify both areas of good practice and areas for improvement. The findings will be reported to the bodies concerned and the Government intends to make appropriate provision as to their publication.
184. Subsection (1)(c) provides for the Commission to investigate, advise and report on specific matters relating to the delivery and management of health care. Regulations will provide that this may be at the invitation of health service bodies such as Health Authorities, NHS Trusts or Primary Care Trusts, or at the direction of the Secretary of State, when concerns have been raised about the quality of the health care they provide. It is anticipated that the Commission's investigation will focus on clinical issues but it may also have regard to management and other issues if it considers that problems in these areas lie behind the matter under investigation. During an investigation the Secretary of State would be able to request that the Commission consider such matters as he thinks appropriate.
185. When the Commission has conducted an investigation, or a local review, follow-up action will be the responsibility of the NHS organisation in question, overseen in England by the NHS Executive Regional Office (for NHS trusts) or the Health Authority (for Primary Care Trusts), and in Wales by Health Authorities. It is intended that the bodies concerned will share their action plans for addressing the Commission's recommendations with the Commission, and the Commission might be involved in follow-up action at local request. The expectation is that the body concerned would act on the Commission's recommendations, but if necessary the Secretary of State will be able to direct the body concerned to do so (using his powers of direction under section 17 of the 1977 Act (see clause 10)).
186. Subsection (1)(d) provides for the Commission to conduct national reviews on topics relating to health care provided by the NHS as requested by the Secretary of State. These topics will include the implementation of National Service Frameworks and of guidance issued by the National Institute for Clinical Excellence (set out in more detail in A First Class Service). Similar reviews are currently conducted by the Clinical Standards Advisory Group, which is to be abolished (see clause 21).
187. The National Institute for Clinical Excellence (NICE) has been established as a Special Health Authority under section 11 of the 1977 Act. NICE will appraise, and disseminate guidance on, the clinical and cost-effectiveness of new and existing health technologies (including drugs) and other interventions in England and Wales. It is intended that the Commission will look at how this guidance is being implemented in the NHS.
188. Subsection (1)(e) provides for the Commission to take on additional functions, which the Secretary of State may prescribe by regulations. In particular it is envisaged that regulations may provide for the Commission to advise, review and investigate persons and bodies other than those listed in subsections (1)(a) to (c). For example, this will allow the Commission's role to be extended to the Special Health Authorities which manage the special hospitals.
189. Increasingly the Commission is likely to have a role in assisting with inquiries. At present, the Secretary of State can institute informal inquiries in the exercise of his powers under section 2(b) of the 1977 Act, and institute formal inquiries under section 84 of the 1977 Act. Where formal inquiries are instituted under section 84, the Commission will be able to provide advice and assistance to those carrying out such an inquiry.
190. Subsection (2) enables the Secretary of State to make regulations which will set out how the Commission performs its functions. For example they may provide for the frequency of the Commission's reviews (subsection (2)(a)), arrangements for working in conjunction with other statutory bodies (subsection (2)(f)), or the publication of reports (subsection (2)(d)).
191. Regulations under subsection (2) will provide that when the Commission has undertaken a local or national review or an investigation, reports will be made to the bodies involved and to the Secretary of State. The regulations will also make provision for their publication. For example, where in a local review visit or investigation, the Commission's findings show clear evidence of very serious and continuing concerns about the performance of a clinical department and/or there has been failure by the NHS organisation to act, it is proposed that regulations will provide that the Commission may issue an immediate report rather than wait until the conclusion of its review or investigation. Regulations will provide that the Commission will bring these findings to the attention of the organisation concerned, the appropriate Health Authority or the Secretary of State. The Commission may also decide to make its findings public if it would be in the public interest to do so.
192. Subsection (2)(e) provides for the Secretary of State to make regulations as to the recovery by the Commission of some of the expenditure it incurs in exercising its functions. It is not intended that the Commission will charge individual health service bodies directly for its work from the outset. However in the longer term, the Government envisages that some of the Commission's work may be funded locally.
193. Subsection (2)(f) provides for regulations to be made regarding joint working between the Commission and other bodies. As well as working closely with health service bodies, the Commission may work in conjunction with organisations such as the Audit Commission, the Social Services Inspectorate, the Health and Safety Executive, the Health Service Commissioner, professional regulatory bodies and professional organisations such as the Royal Colleges.
194. Subsections (3) and (4) provide that the Secretary of State may issue directions to the Commission as to the exercise of its functions. The Commission will have a work programme agreed with the Secretary of State. The Secretary of State will be able to specify in directions, for example, specific clinical quality issues where it wishes the Commission to have a particular focus.
Clause 19: Obtaining information etc.195. This clause makes provision for regulations which will set out the Commission's powers to obtain entry to NHS premises and access to information and documents held by the bodies under review or investigation.
196. Subsection (1)(a) provides that regulations may confer a right on persons authorised by the Commission (e.g. its employees or other members of the review or investigation team) to enter and inspect premises for the purposes of carrying out its functions. They may also provide that such persons are able to inspect and take copies of records held on those premises. Persons authorised by the Commission will only be able to enter and inspect premises owned or controlled by Health Authorities, Special Health Authorities, NHS trusts and Primary Care Trusts.
197. Subsections (1)(b) and (c) allow regulations to be made concerning access to information and documents, and the giving of explanations about matters relating to the exercise of the Commission's functions. Regulations will set out the circumstances in which such information or documents may be obtained or explanations required, and the persons who must provide such information, documents or explanations.
198. Subsection (2) ensures that the Commission will be able to obtain confidential information about individuals, in particular patient information, only in the limited circumstances set out in paragraphs (a) to (d).
199. Subsection (3) provides that it would not be able to obtain information the disclosure of which is prohibited by another Act, regulations or directions (such as information covered by section 33 of the Human Fertilisation and Embryology Act 1990 (c.37)). If however the prohibition operates because the document or information would identify an individual, then regulations will provide that the Commission may require that document or information to be produced in such a way that prevents the individual being identified.
Clause 20: Restrictions on disclosure of information200. Clause 20 prevents the disclosure of confidential information relating to individuals, except in certain circumstances. If a Commission member, employee, or a person assisting the Commission, knowingly or recklessly discloses information contrary to this clause, subsection (2) provides that they would be guilty of a criminal offence.
201. Subsection (5) sets out the circumstances in which disclosure of confidential information relating to an individual is permitted. The Commission would be able to disclose this information if, for example, the individual to whom the information relates had consented, if the disclosure was for the purpose of an investigation by the Health Service Commissioner, was in accordance with any Act of Parliament or court order, or was for the purposes of criminal proceedings.
Clause 21: Dissolution of Clinical Standards Advisory Group202. The Clinical Standards Advisory Group (CSAG) was established under section 62 of the 1990 Act. Its function is to advise as requested on standards of clinical care in the NHS and on access to and availability of services to NHS patients. This function will be taken on by the new Commission for Health Improvement, so clause 21 provides for the abolition of CSAG. As CSAG may not have completed its current work programme by the time the Commission is established, the Secretary of State will be able to determine the date on which this clause would come into effect.
203. Clause 61(3) provides that the abolition of CSAG extends to Northern Ireland. In Northern Ireland the application to the integrated health and social services of a quality framework similar to that being established in England and Wales is under consideration.
Clause 22: Independent Hospitals204. Clause 22 was inserted by the House of Lords against the wishes of the Government. It makes provision for the Secretary of State to extend, by regulations, the duty for quality and the functions of the Commission for Health Improvement to independent hospitals, and defines "independent hospitals". Regulations could provide for the duty and the functions of the Commission to apply in whole or in part to independent hospitals.
Clauses 23 and 24: Co-operation between NHS bodies and local authorities205. Clauses 23 and 24 give effect to the intention, set out in The new NHS and in Putting Patients First, to extend the duty of partnership set out in section 22 of the 1977 Act.
206. Clause 23 introduces for the first time an explicit duty of co-operation between bodies within the NHS, making clear the intention that Health Authorities, NHS trusts and Primary Care Trusts are expected to work together.
207. Clause 24 extends the duty of partnership in section 22 of the 1977 Act between the NHS and local authorities to secure and advance the health and welfare of the people of England and Wales, to cover Primary Care Trusts and NHS trusts as well as Health Authorities and Special Health Authorities. This recognises the need to work in partnership in commissioning and delivering care, as well as at the strategic planning level. Welfare is used in its wide general sense and is designed to cover functions relating to social services, education, housing and the environment.
208. Clause 23(2) was inserted by the House of Lords against the wishes of the Government. It provides specifically that the duty of co-operation should be so exercised as to enable patients to be referred to specialist centres for treatment.
Clause 25: Plans for improving health etc.209. This clause makes provision for the preparation of local plans for improving the health of and the provision of health care to the local population. It gives statutory underpinning to the development of Health Improvement Programmes as set out in The new NHS and Putting Patients First.
210. Subsection (1) lays a statutory requirement on Health Authorities to prepare plans to improve the health of and provision of health care to their populations, and subsections (3) and (4) lay a duty on Primary Care Trusts, NHS trusts, and local authorities to participate in their preparation. Subsection (7) provides that all the parties are required to have regard to their local plan in exercising their functions.
211. The Health Improvement Programme process is intended to engage local communities and voluntary bodies, employers, educational establishments and others. Accordingly, subsection (5)(b) provides for this, while subsection (5)(a) enables the Secretary of State if necessary to direct that particular parties are involved. The Bill does not prescribe in detail the processes for developing Health Improvement Programmes, so that local partners can develop individual local arrangements. The Secretary of State's powers of direction under subsections (5)(a) and (6) mean however that it will be possible to prescribe particular aspects of the process if necessary. For example, should there be difficulty in securing proper involvement of voluntary organisations in the Health Improvement Programme process, the direction-making power offers a safeguard.
Clauses 26 and 27 - Payments from NHS bodies to local authorities and from local authorities to NHS bodies212. Section 28A of the 1977 Act gives Health Authorities powers to transfer money to local authorities for social services functions, and for education, housing and accommodation for disabled people. Directions under section 28A(5) provide that such payments may only be made where better value would be achieved than by equivalent expenditure within the NHS.
213. This power was originally introduced to assist with the provision of replacement services in the community as NHS long-stay hospitals closed. It also encourages alternative and more appropriate models of care for people who might otherwise have to rely on the health service. The emphasis thus far has been on social care and related services.
214. The new provisions are intended to promote partnership between the NHS and local authorities with the aim of improving the health of the community. The measures also aim to ensure that health and local authorities are able to make the most flexible use of the resources they have available to them.
215. Clause 26 amends the current Section 28A provisions by extending the ability of health authorities to make payments to a local authority beyond social services functions (and certain other functions) to allow payments to be made in respect of any local authority function that is health-related. It also allows Primary Care Trusts to make similar payments to local authorities.
216. Clause 27 introduces a new reciprocal power for local authorities to make payments to Health Authorities or Primary Care Trusts. It gives the Secretary of State powers to set conditions as to local authority payments to these health bodies and to set conditions for repayment of the money. It is intended that the conditions will provide that payments may only be made if doing so will improve the health of the people in the local authority's area. The Secretary of State already has such powers in respect of payments from Health Authorities to local authorities.
Clause 28: Arrangements between NHS bodies and local authorities217. This clause allows the NHS and local authorities to work together in new ways by enabling them to pool their resources, delegate functions and resources from one party to another and enable a single provider to provide both health and local authority services.
218. The discussion documents Partnership in Action and Partnership for Improvement set out the Government's intentions regarding these new operational flexibilities. Broadly, they remove some of the legal barriers to joint working which exist at the moment. The measures set out in this clause are intended to allow health and local authorities to agree jointly who is best placed to carry out their functions and how resources might be used more efficiently. These proposals have been developed in greatest depth as regards the interface between health and social care, as the discussion documents made clear. However, the Government believes the potential for cross-boundary working extends beyond this. Accordingly, clause 28 creates scope to bring these new flexibilities into play across any point on the interface between NHS functions and local authority functions that are health-related.
219. Clause 28 remove some of these barriers by allowing:
220. These flexibilities will not necessarily be appropriate in all areas, or for all client groups. What works for services for people with learning difficulties will not necessarily work for frail elderly people. The powers are therefore not mandatory. If authorities wish to apply for a new flexibility the intention is that need for it should be highlighted in the Health Improvement Programme (see clause 25).
221. Subsection (1) provides the powers for the Secretary of State for Health to make regulations setting out the circumstances in which NHS bodies and local authorities can use the flexibilities. The flexibilities may only be used if doing so leads to an improvement in the way the functions are exercised, which includes better outcomes for service users.
222. Subsection (2) sets out examples of the new operational flexibilities.
223. Subsection (2)(a) enables the creation of pooled budgets made up of contributions from the NHS and local authorities. The resources contributed by each authority will lose their identity as health or local authority money. The pool will be able to fund both health and local authority activity as set out in regulations.
224. Subsections (2)(b) and (c) allow both NHS bodies and local authorities to delegate some of their functions to the other partner. These functions will be prescribed in regulations. In the case of the NHS and social care boundary, the effect of these subsections is to
225. Subsections (3) and (4) allow the Secretary of State to set out detailed provisions regarding the operational flexibilities in regulations. These provisions may include the circumstances in which the operational flexibilities can be used (for example, which client groups or types of services can be subject to the arrangements) and which health or local authority functions can be subject to the new arrangements. The regulations may also set out how the new arrangements should be managed. This is provided for in more detail in subsection (4).
226. It is intended that use of the new arrangements will be subject, initially, to approval by the Secretary of State. Regulations may set out what criteria must be met in order for the operational flexibilities to be used: for example, who should be consulted on proposals and to what timescale; in what circumstances approval could be refused or withdrawn; and what the arrangements might be for varying the terms of the approval (for example, if local partners wish to extend the range of services to be covered by the arrangement or increase or reduce the size of a pooled budget).
227. Subsection (5) makes clear that, where a NHS body or local authority delegates its functions under the arrangements in this section, that body will remain liable for the exercise of those functions. It also provides that the provisions do not affect local authorities' powers or duties to charge for services.
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| © Parliamentary copyright 1999 | Prepared: 31 March 1999 |