Reviews of NHS health care in England and Wales - overview

141.     The Bill provides for the CHAI to have functions of reviewing NHS health care, and also for regulating private and voluntary health care services in England (see the notes under clause 99 to 102 for comments on CHAI's functions in relation to those services).

142.     Concerning NHS health care, the CHAI has functions of reviewing health care that is provided by NHS bodies, and also health care that is provided for those bodies by other persons. Clause 136 sets out what is meant by health care provided for another person. Clause 135 defines English NHS body, Welsh NHS body and cross-border SHA. NHS foundation trust is defined in clause 1.

143.     The Bill deals separately in clauses 45 to 48 with CHAI's functions in relation to NHS foundation trusts. CHAI has separate functions in relation to these bodies because it is to review them against the terms of their authorisation, applicable statutory requirements and the terms of arrangements made between those NHS foundation trusts and other NHS bodies (see clause 47), as opposed to against the general factors in clause 49 that apply to reviews of English NHS bodies other than NHS foundation trusts, and cross-border SHAs.

144.     Under clause 53, the CHAI may review health care that is provided by or for an English NHS body (other than a NHS foundation trust) or a cross-border Special Health Authority. This includes health care that is provided by those bodies generally. However, the Assembly, and not CHAI, is to have general responsibility for the review of health care by or for Welsh NHS bodies, and clause 66 makes provision for this.

145.     Even though the Bill provides for the Assembly to have the function of reviewing generally health care by or for Welsh NHS bodies, CHAI has some functions in relation to NHS bodies in England and Wales. In particular, under clause 50, it will be able to publish performance data across NHS bodies in England and Wales, and, under clause 52, will be able to review the provision of different kinds of health care by or for NHS bodies in England and Wales, for example, national cancer services. Although clauses 50 and 52 do not apply to NHS foundation trusts, the CHAI will be able to publish performance data in relation to those NHS foundation trusts, and to review the provision of different kinds of health care by or for those NHS foundation trusts, under clause 47.

CHAPTER 2 - NHS HEALTH CARE: INTRODUCTORY

Clause 40: Quality in health care

146.     Clause 40 places a duty on all NHS bodies to ensure that appropriate arrangements are in place to monitor and seek to improve the quality of health care. This replaces the current duty of quality in section 18 of the Health Act 1999. Under subsection (2), "health care" includes the promotion and protection of public health, whereas in the 1999 Act it was limited to services for or in connection with the prevention, diagnosis or treatment of illness.

147.     Subsection (3) states that 'illness' has the same meaning as in section 128(1) of the 1977 Act, that is it includes mental disorder within the meaning of the Mental Health Act 1959 and any injury or disability requiring medical or dental treatment or nursing.

Clause 41: Standards set by Secretary of State

148.     Clause 41 gives the Secretary of State the power to prepare and publish a statement of standards in relation to the provision of health care by and for English NHS bodies and cross-border SHAs. It is envisaged that these standards are likely to be informed by Government National Service Frameworks (NSFs) ¹³, guidelines of the National Institute for Clinical Excellence (NICE) ¹⁴ and other relevant sources.

¹³ The objective of Government National Service Frameworks (NSFs) is to tackle particular health issues, for example mental health, by setting out aims to improve particular services or care provided.

¹⁴ NICE is a special health authority set up to give advice on best clinical practice to NHS clinicians, to those commissioning NHS services and to patients and carers.

149.     Subsection (4) makes it clear that English NHS bodies and cross-border SHAs should take these standards into consideration in making arrangements under clause 40. Clause 43(2) enables the CHAI, during the exercise of its functions, to advise the Secretary of State or the Assembly of any changes that it considers should be made in relation to these standards.

Clause 42: Standards set by National Assembly for Wales

150.     As accountability for NHS provision in Wales rests with the Assembly, clause 42 provides for the Assembly to set its own statement of standards.

151.     As with standards set by the Secretary of State, it is likely that the Assembly standards will be informed by NSF guidance and NICE guidelines. Subsection (4) operates in the same manner with respect to the Assembly and Welsh NHS bodies as subsection (4) of clause 41 does in respect of the Secretary of State and English NHS bodies. CHAI may advise the Assembly under clause 43(2) of any changes it considers should be made to the standards.

CHAPTER 3 - NHS HEALTH CARE: FUNCTIONS OF CHAI

General functions

Clause 43: Information and advice

152.     Clause 43 places a duty on the CHAI to keep the Secretary of State, in relation to English or cross-border NHS bodies, and the Assembly in relation to Welsh NHS bodies, informed about health care provided by or for NHS bodies.

153.     Subsection (2) allows for the CHAI, where it considers it timely or appropriate, to give advice to the Secretary of State or the Assembly on any particular changes which it thinks should be made in order to secure improvements in the quality of NHS health care or in relation to the statement of standards detailed in clauses 41 and 42.

Clause 44: Reviews of data

154.     This clause enables the CHAI to review the quality of any data collected by others on health care provided by the NHS or for bodies and to make a report or publish a summary of its findings.

Functions relating to NHS foundation trusts

Clause 45: Information and advice

155.     Clause 45 places a duty on the CHAI to keep the Independent Regulator informed about health care provided by or for NHS foundation trusts. The appointment of a person to the office of the Independent Regulator and the powers of the Independent Regulator are dealt with in clause 2 and Schedule 2.

156.     Subsection (2) allows for the CHAI, in the course of its work or where it considers timely or appropriate, to give advice to the Independent Regulator on any particular matters connected with the provision of health care as it sees fit and subsection (3) enables an NHS foundation trust to request the CHAI to provide it with information or advice on specified matters.

Clause 46: Annual reviews of NHS foundation trusts

157.     Clause 46 gives the CHAI the function of undertaking annual reviews, with reference to the statements of standards (clause 41), of the provision of health care by each NHS foundation trust. Following each annual review of a body the CHAI will award a performance rating. Subsections (2) and (3) provide for the CHAI to devise and publish criteria against which these reviews will be carried out and for the Secretary of State to approve such criteria. This clauses mirrors clause 51 for English NHS bodies other than NHS foundation trusts.

Clause 47: Other reviews and investigations

158.     Clause 47 provides that the CHAI may carry out reviews and publish reports on the extent to which an NHS foundation trust complies with the terms of its authorisation, applicable legislation, or the terms of any arrangement made by a trust with an NHS body. The reference to the terms of the authorisation and applicable legislation tie in with the grounds on which the Independent Regulator may take action in respect of failing NHS foundation trusts, as set out in clause 23. The CHAI must publish such report of its review as it considers appropriate.

Clause 48: Failures in compliance

159.     Where the CHAI undertakes an annual review under clause 46 or other review or investigation under clauses 46 and 47 and considers that an NHS foundation trust has or is contravening or failing to comply to a significant extent with its authorisation or applicable legislation, clause 48 obliges CHAI to report such failings to the Independent Regulator and enables it to recommend that remedial measures be taken by him. The measures that the Regulator can take are set out in clause 23.

Healthcare provided by and for other NHS bodies

Clause 49: Introductory

160.     Clause 49 places a duty on the CHAI to encourage improvement in NHS health care by or for all NHS bodies other than NHS foundation trusts. Under this head, the CHAI will be able to give information or advice to NHS bodies or others who provide NHS health care. It states that the CHAI, in exercising its functions under clauses 50 to 54 in relation to English NHS bodies and cross-border SHAs, shall be concerned with the availability and access, the quality and effectiveness, and the economy and efficiency of health care provided by or for NHS bodies, and with the need to safeguard and promote the rights and welfare of children.

Clause 50: National Performance Data

161.     This clause enables the CHAI to publish data on the performance of NHS bodies and other persons who provide health care, across NHS bodies in England and Wales Under provisions in clause 47 the CHAI may publish such data in relation to NHS foundation trusts.

Clause 51: Annual Reviews

162.     Clause 51 gives the CHAI the function of undertaking annual reviews, taking the statement of standards (as provided for in clause 41) into account, of the provision of health care by and for each English NHS body (other than an NHS foundation trust) and each cross-border SHA. Following each annual review of a body the CHAI will award a performance rating. Subsections (2) and (3) provide for the CHAI to devise and publish criteria against which these reviews will be carried out. The Secretary of State will approve such criteria.

Clause 52: National Reviews

163.     This clause gives the CHAI a function of conducting reviews across England and Wales of particular kinds of health care, for example, national cancer services. Again, CHAI will be able to review particular kinds of health care provided by or for NHS foundation trusts under clause 47.

Clause 53: Other reviews and investigations

164.     Clause 53 provides for the CHAI to review or investigate health care provided by or for English NHS bodies (other than NHS foundation Trusts) and cross-border SHAs with a view to making a report. The CHAI may also review the way such bodies are monitoring and seeking to improve such health care. In order for the CHAI to carry out these reviews and investigations, subsection (5) enables the CHAI to inspect any English or cross-border SHA, or any family health care provider or other person who provides or is to provide a commissioned service.

Clause 54: Failings

165.     Where the CHAI considers that there are significant failings in the health care provided by or for NHS bodies apart from NHS foundation trusts (which is provided for in clause 23), subsections (2) and (4) oblige the CHAI to make a report to the Secretary of State or the Assembly as appropriate. Subsections (3) and (5) enable the CHAI to recommend that the Secretary of State, or the Assembly as appropriate, take special measures to improve the health care provided. Such measures could include calling on the CHAI to undertake a re-inspection of the body concerned, or other practical assistance or organisational support. In more serious cases, the Secretary of State, or in Wales, the Assembly, could, under sections 84A and 84B of the 1977 Act as inserted by section 13 of the Health and Social Care Act 2001, replace all or part of an NHS body's board.

Other functions

Clause 55: Co-ordination of reviews

166.     Clause 55 provides for the CHAI to promote the effective co-ordination of reviews or assessments by other public bodies which undertake reviews of the provision of health care provided by English NHS bodies and cross border SHAs. The Assembly is to perform this function in relation to Welsh NHS bodies, under its powers in the 1977 Act.

Clause 56: Studies as to economy, efficiency etc

167.     This clause enables the CHAI to carry out comparative or other studies of PCTs, Strategic Health Authorities or NHS trusts in England. These studies, which may be undertaken at the request of the bodies referred to in subsection (1)(a) or on the CHAI's own initiative relate to the improvement of the economy, efficiency and effectiveness in the exercise of functions of those bodies or in the financial or other management or operations of the body concerned. Such studies were previously carried out in relation to these bodies by the Audit Commission, under section 33(1) of the Audit Commission Act 1998. Schedule 8, paragraph 10(6), to the Bill removes these bodies from the scope of section 33(1). Studies of this type with respect to NHS foundation trusts are to be undertaken by the National Audit Office under its powers in the National Audit Act 1983: see paragraph 57 of Schedule 4 to the Bill.

168.     Within Wales the function of carrying out these studies will remain with the Audit Commission. However, in carrying out reviews and investigations generally, the Assembly is required under clause 66 to be concerned with the economy and efficiency of the provision of health care. It will be the Assembly's intention that the Audit Commission will continue to work with the Assembly in relation to reviews and investigations of health care by or for Welsh NHS bodies.

Clause 57: Additional functions

169.     It is envisaged that the CHAI may need to be given additional functions with respect to the provision of health care by or for NHS bodies, or the improvement of economy efficiency and effectiveness in relation to English NHS bodies, in the future, and this clause makes provision for such functions to be given by regulations. The Assembly must consent to any provision in relation to health care by or for Welsh NHS bodies, unless the provision is limited to care that is provided for an English NHS body or cross-border SHA (i.e. where the provision relates to health care commissioned by the latter body from a Welsh NHS body).

Exercise of functions: general

Clause 58: Considerations and criteria

170.     Subsection (1) places a duty on the CHAI to have regard to specified areas of government policy in exercising its functions, for example crime reduction and drugs strategies issued by the Home Office.

171.     Subsection (3) specifies that the Secretary of State may make regulations requiring CHAI to devise and publish criteria for use in the exercise of any of its functions under Chapter 3. For instance, criteria relating to its studies of economy, efficiency and effectiveness of PCTs, Strategic Health Authorities and NHS Trusts as outlined in clause 56.

Clause 62: Right of entry

172.     This clause provides that individuals authorised by the CHAI may enter and inspect premises that are owned or controlled by an NHS body or which are used or proposed to be used for any purpose connected with the provision of health care by or for NHS bodies, or the discharge of functions of those bodies.

Clause 63: Right of entry: supplementary

173.     Subsection (1) allows a person (authorised to enter and inspect premises by virtue of clause 62) to inspect and copy relevant documents or records. It also allows inspectors to interview any person working at the premises or any patients or persons receiving health care who consent to be interviewed. Inspectors may also require relevant records or other documents on the premises to be produced for inspection, and where they are stored on computer, for them to be produced in a legible, not encrypted, form. Subsection (4) imposes a requirement to assist an inspector and permits the inspector to take such measurements and photographs and make such recordings as he considers necessary to enable him to exercise his powers under clause 62.

Clause 64: Power to require documents and information

174.     Clause 64 confers on the CHAI a general power to require information and documents from the bodies or persons listed in subsection (2) irrespective of whether or not the CHAI is conducting an inspection, where such information relates to the provision of health care by or for an NHS body or the discharge of functions of an NHS body and where the CHAI considers it necessary or expedient to have the information or documents for its purposes under this Chapter.

175.     Subsection (2)(c) gives the CHAI the right to require information or documents from a local authority. This will enable the CHAI to obtain information or documents kept by a local authority for its own purposes, where that information is relevant to the performance by a local authority of its health care functions. For example, the CHAI might request information as to how quickly the local authority responds to requests by an NHS trust to assess the social services needs of persons ready to be discharged from hospital.

Clause 65: Power to require explanation

176.     Under this clause, regulations can make provision for the CHAI to require an explanation of any documents or information it obtains under clauses 62 to 64 or any matters which are the subject of the CHAI's functions under this chapter. Subsection (2) enables these regulations to set the requirement that individuals must be present at a specified place to give an explanation. The CHAI will use this power to enable it to discuss with those responsible any matters of concern that its inspections have brought to light.

177.     Clauses 63(5), 64(4) and 65(3) make it an offence for a person to obstruct the exercise of any of the CHAI's powers under these sections. The penalty on summary conviction is a fine not exceeding level 4 (£2500) on the standard scale.

CHAPTER 4 - NHS HEALTHCARE: FUNCTIONS OF NATIONAL ASSEMBLY FOR WALES

Reviews and investigations

Clause 66: Reviews and investigations relating to Wales

178.     The Commission for Health Improvement ('CHI') undertook reviews of, and investigations into, healthcare provided by NHS bodies both in England and Wales. This clause provides for the Assembly to take on these functions in relation to health care by or for Welsh NHS bodies. Under section 63 of the Government of Wales Act 1998, the Assembly would have power to delegate its inspection function to suitably qualified staff. It is the stated intention of the Assembly to set up an internal unit to carry out this function.

179.     In the same way that clause 53 provides for particular matters to be considered by the CHAI in undertaking its review and investigation functions, subsection (2) provides that the Assembly shall focus the reviews and investigations on the availability, quality, effectiveness and management of health care services, and subsection (4) provides for the making of a report.

Clause 67: Reporting to Secretary of State

180.     English NHS bodies may provide health services on behalf of Welsh NHS bodies, and where this occurs the Assembly may review and investigate these services under clause 66. Where the Assembly detects significant failings in the provision of services by an English NHS body, clause 67 provides that the Assembly must report this to the Secretary of State. This also applies in respect of cross-border SHAs.

Ancillary powers

Clause 68: Right of entry, clause 69: Right of entry, supplementary, clause 70: Power to require documents and information and clause 71: Power to require explanation

181.     Clauses 68 to 71 make the same provision with respect to powers of entry and powers to obtain documents and information in relation to the Assembly as clauses 62 to 65 do in relation to the CHAI.