Health Bill [HL]- continued
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Adult social care
49. An issue raised in the House of Lords during the debate on the Health and Social Care Bill (now the Health and Social Care Act 2008) was that users of adult social care that has been arranged or funded privately do not have recourse to an independent complaints procedure. A government commitment was made in Parliament 22 to address this matter at the next legislative opportunity.
50. The objective of the policy is to enable the Local Commission for Administration (the LGO) to investigate complaints made by people whose adult social care is not arranged or provided by a local authority. This group comprises people who arrange or pay for their own care, estimated to be about 35 per cent of adult social care service users, and also those who are given direct payments by local authorities to purchase their own adult social care services.
51. People whose care is funded and arranged by a local authority have access to the existing statutory local authority social services complaints procedure, under the Health and Social Care Act 2003, and have the right to refer their complaints to the LGO if they are dissatisfied with the local authoritys response. During 2007, Department of Health Ministers became concerned, as a result of representations made by stakeholders, that the current arrangements for people arranging and paying for their own care were unsatisfactory and that such people should also have access to independent investigation of their complaints. The Government made a commitment in Parliament to address this issue.
52. The LGO is responsible for investigating complaints of injustice arising from maladministration by local authorities and certain other bodies. The LGO comprises three Local Commissioners, and they each deal with complaints from different parts of the country. They investigate complaints about most council matters including housing, planning, education, social services, consumer protection, drainage and council tax.
53. The Bill inserts a new Part 3A into the Local Government Act 1974 (the 1974 Act), the legislation that established the LGO. Part 3A creates a new scheme, which extends the remit of the LGO to include the investigation of complaints about adult social care not arranged or funded by a local authority. The new scheme is largely modelled on the existing legislation for investigation of complaints concerning local authorities in Part 3 of the 1974 Act.
Private Health Care
54. Section 44(2) of the NHS Act 2006, sets a cap on income derived from private charges that may be earned by NHS foundation trusts which were NHS trusts.
55. New clause 34 enables the Secretary of State to make regulations permitting exceptions to the rule in section 44(2), subject to the principle that any such exception must in all the circumstances be in the interests of the National Health Service. The regulations may specify such other principles and conditions as the Secretary of State may consider appropriate.
Disclosure of Information
56. HMRC holds information relating to the tax affairs of individuals - including those of GPs and dentists who provide medical and dental care on behalf of the NHS. It has been the practice of HMRC, over a number of years, to assist in statistical enquiries carried out by or on behalf of the Department of Health relating to the earnings and expenses of GPs and dentists by providing summarised data in aggregate anonymised form.
57. This annual exercise is currently conducted on behalf of the Secretary of State and the devolved administrations by the NHS Information Centre for Health and Social Care. The dental exercise does not currently include Scotland or Northern Ireland but there are proposals to extend the scope to include them in future.
58. The Commissioners for Revenue and Customs Act 2005 prohibits officials of HMRC from disclosing information of any kind held by HMRC in connection with a function of the HMRC - subject to certain exceptions.
59. The Bill provides a further exception to the current restrictions on the disclosure of information by HMRC to enable them to continue to participate in these annual earnings and expenses exercises.
60. The Bill will allow HMRC to disclose certain information relating to the income and expenses of GPs and dental practitioners to the Secretary of State and to the devolved administrations or to persons providing services to, or exercising functions on behalf of, the Secretary of State or the devolved administrations. The information disclosed will be an anonymised summary of the earnings and expenses of GPs and dental practitioners and will not extend to other details disclosed to HMRC as part of the tax assessment process, such as investment income. Earnings that are identified as unconnected with medical or dental activities will be excluded.
TERRITORIAL EXTENT: FURTHER INFORMATION
61. Most of the provisions contained in the Bill extend to England and Wales only, with a small number of provisions extending more widely. The Bill contains provisions that apply to England only, to Northern Ireland only, to England and Wales, to England Wales and Northern Ireland, and to the United Kingdom.
Part 1: NHS Constitution, Quality Accounts, Direct payments and Innovation prizes
62. Part 1 of the Bill extends to England and Wales, but applies only to England.
Trust special administrators
63. Chapter 1, Part 2 of the Bill extends to England and Wales but the provisions apply only in relation to NHS bodies in England.
NHS and other health appointments: suspension
64. The amendments made by clause 19 in Chapter 2, Part 2 of, and Schedule 3 to, the Bill have the same extent as the Acts which are being amended. Some of the new powers of suspension relate to bodies operating in more than one part of the UK.
65. The clauses relating to tobacco in Part 3 of the Bill have the same extent as the enactments which the provisions amend. The 2002 Act extends to the whole of the UK, the 1991 Act extends to England and Wales and Scotland, and the 1991 (NI) Order extends to Northern Ireland only. However, the amendments made to the 2002 Act by clauses 20 and 21, and those to the 1991 Act made by clause 22, do not apply in relation to Scotland.
66. The changes regarding pharmaceutical services in clauses 25, 26, 27, 28 and 29 extend to England and Wales but apply only in England. The amendments made by clauses 30, 31 and 32 extend to England and Wales but apply only in relation to Wales.
Adult social care
67. The changes to the powers of the LGO in England in clause 33 and schedule 5 extend to England and Wales, but apply only in relation to England.
Private health care
68. Clause 34 extends to England and Wales, but applies only to England.
Disclosure of information
69. The provisions in clause 35 for disclosure of information held by HMRC extend to the whole of the UK.
Territorial application: Wales
70. The Bill confers a number of new or expanded powers on the Welsh Ministers. The following table lists the clauses within the Bill which affect the existing powers of, or confer new powers or duties on, the Welsh Ministers.
Territorial application: Scotland
71. This Bill does not contain any provisions falling within the terms of the Sewel Convention. Because the Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament, if there are amendments relating to such matters which trigger the Convention, the consent of the Scottish Parliament will be sought for them.
72. The Bill makes provision for DHSSPSNI in relation to one matter that invokes a legislative consent motion, namely the provisions on suspension of members of the Human Tissue Authority and bodies established under the Medicines Act 1968 contained in clause 19 and Schedule 3.
COMMENTARY ON CLAUSES
PART 1 - QUALITY AND DELIVERY OF NHS SERVICES
Chapter 1 - NHS Constitution
Clause 1: NHS Constitution
73. Clause 1 identifies the NHS Constitution and the Handbook as the documents published on 21st January 2009, entitled The NHS Constitution and The Handbook to the NHS Constitution, or as any revised versions of those documents published in accordance with the provisions of Chapter 1.
Clause 2: Duty to have regard to NHS Constitution
74. Clause 2 requires specified bodies to have regard to the NHS Constitution when performing their NHS functions. Those functions include the commissioning or provision of NHS services or, in the case of Monitor and the Care Quality Commission, the regulation of those services. The bodies to which the new duty applies are: Strategic Health Authorities, PCTs, NHS trusts, Special Health Authorities, NHS foundation trusts, Monitor and the Care Quality Commission.
75. In addition, those bodies that provide or assist in providing NHS services under arrangements under section 12(1) of the NHS Act or who are providing NHS services under contracts or other arrangements made pursuant to the provisions of the NHS Act listed in subsection (6), must (in doing so) also have regard to the NHS Constitution. This includes bodies providing primary care services, such as pharmaceutical services, dental services and general medical services.
76. Subsection (7) defines NHS services as being health services provided in England for the purposes of the NHS in England. Subsection (8) provides that references to the provision of services include the provision of services carried out jointly with another person.
77. The Constitution is for the NHS in England only. However, on 3 July 2008, England, Scotland, Northern Ireland and Wales committed to a high-level statement declaring the principles of the NHS across the UK. This was to reaffirm that the underlying principles of the NHS across the UK remain the same, even as the way the NHS provides care may vary between the four countries, reflecting their different needs and circumstances.
Clause 3: Availability and review of NHS Constitution
78. Clause 3(1) provides that the Secretary of State must ensure that the NHS Constitution continues to be available to patients, staff and members of the public. The NHS Constitution and the Handbook published on 21 January 2009 were published under the general powers of the Secretary of State in relation to the NHS. The effect of subsection (1) (and clause 5(1)) is to prevent the Secretary of State from using those general powers to withdraw either document.
79. The Secretary of State is obliged to review the whole NHS Constitution at least once every ten years, with the first review to be completed by 5 July 2018 (5 July is the anniversary of the founding of the NHS; this would be the 70th anniversary). The Secretary of State must ensure, when reviewing the Constitution, that the following are consulted: patients and bodies or other persons representing patients; staff and bodies or other persons representing staff (such as unions or professional bodies); members of the public; carers; local authorities; the providers of NHS services and the independent regulators. If any revision is made to the NHS Constitution as a result of a 10 year review, the Secretary of State is obliged to republish it (see subsection (5)).
80. Any revision to the guiding principles in the NHS Constitution must first be set out in regulations made by the Secretary of State. Those regulations will be subject to the negative resolution procedure.
81. Clause 4 defines patients as those to whom NHS services are being provided. It defines the guiding principles as the principles described in the NHS Constitution published on 21 January 2009, or any revised version of those principles. It defines staff as those persons who are employed by, or working in some other capacity for, the bodies and other persons who, in providing NHS services, are obliged to have regard to the NHS Constitution where those persons are employed or work in (or in connection with) the provision, commissioning or regulation of NHS services. It defines carers as persons who, as relatives or friends, care for other persons to whom NHS services are provided, and defines local authorities to include unitary, county and district councils. This mirrors the definition of local authorities in section 229 of the Local Government and Public Involvement in Health Act 2007
Clause 4: Other revisions of NHS Constitution
82. In addition to any revisions that follow a review, the Secretary of State is able to revise the NHS Constitution from time to time. However, the Secretary of State will be obliged to undertake appropriate consultation - with patients, staff, members of the public and other persons who are affected by the revision - before any such revision.
83. As in clause 3, any revision to the guiding principles in the NHS Constitution (though not to the other parts of the Constitution) must first be set out in regulations made by the Secretary of State. Those regulations will be subject to the negative resolution procedure.
84. After any revision, the Secretary of State must re-publish the NHS Constitution.
Clause 5: Availability, review and revision of Handbook
85. Clause 5 provides that the Secretary of State must ensure that the Handbook continues to be available to patients, staff and members of the public (see discussion in paragraph 75 above).
86. The Secretary of State is able to revise the Handbook at any time, but is obliged to review it at least once every three years, with the first review completed by 5 July 2012. After any change to the Handbook, the Secretary of State is obliged to republish it. The Government intends this document to be updated periodically, as Department policy or law evolves.
Clause 6: Report on effect of NHS Constitution
87. This clause provides that the Secretary of State must publish a report on the effect that the NHS Constitution has had on patients, the public, staff and carers. Each report is required to be laid before Parliament. The first report must be published no later than 5 July 2012 and subsequent reports will be required to be published every 3 years thereafter.
88. The Department intends to use the reports on the effect of the NHS Constitution to assess what further measures are required in order for the NHS Constitution to be effective. The aim of the report is to ensure that all bodies who are required to do so are having regard to the NHS Constitution - and so to the principles, values, as well as the legally-binding rights and the pledges, that the NHS is committed to achieve.
Clause 7: Regulations under section 3 or 4
89. This clause gives the Secretary of State power to make the regulations referred to in clauses 3 and 4 by statutory instrument under the negative resolution procedure.
Chapter 2 - Quality Accounts
Clause 8: Duty of providers to publish information
90. Subsection (1) provides that NHS providers (as defined in subsection (2)) must publish prescribed information in respect of each reporting period, covering the NHS services they provide or procure. The intention is to ensure that providers of NHS services produce regular reports on the quality of the services they provide, and that these reports are publicly available. The definition of reporting period in clause 9(2) means that NHS providers will have to publish that information for the period 1 April to 31 March each year. Regulations will set out the content of a Quality Account.
91. Subsection (2) defines those NHS providers in public ownership. These are PCTs, NHS trusts, Special Health Authorities and NHS foundation trusts
92. Subsection (3) provides that bodies or other persons not in NHS ownership who provide, or make arrangements for the provision of, NHS services must also publish prescribed information. It defines these persons by referring back to clause 2(4) and (5). These subsections set out different providers of NHS services, including providers of primary medical and other primary healthcare services, by reference to the type of service they provide, and the legislation under which these services are provided.
93. Subsection (4) ensures that healthcare providers report on their part of any jointly provided healthcare. The intention is to ensure that each provider should publish their own Quality Account for the services for which they are responsible under any joint arrangement.
94. Subsection (5) gives the Secretary of State power to make regulations to exempt providers from the requirement to publish a Quality Account. The intention is to ensure that certain NHS providers, or types of NHS provider, can be exempted if necessary from the requirement to publish a Quality Account. This will be either on a temporary basis to allow certain types of provider, particularly those who are smaller or who are new to providing services for the NHS, to gear themselves up for publication; or on a more permanent basis, in cases where the provider carries out too few NHS services to make it reasonable to require that provider to publish an Account. This subsection also gives the Secretary of State power to make regulations to exempt certain services from appearing in a Quality Account. The intention of this subsection is to exempt certain services if it would not be practicable to include them, for example if the volumes of a particular service are too small to allow users of the Account to draw conclusions about the quality of services offered.
95. Subsection (6) defines NHS services by reference back to clause 2(7), which defines these services as being those which are provided in England for the purposes of the health service continued by section 1(1) of the NHS Act.
Clause 9: Supplementary provision about the duty
96. Subsection (2) defines the reporting period for the purposes of section 9. The first reporting period for Quality Accounts will be 1st April 2009 - 31st March 2010, and subsequent reporting periods will run from 1st April - 31st March each year.
97. Subsection (3) provides that a provider must republish their Quality Account if they are notified of an error or omission by either the Care Quality Commission or a Strategic Health Authority. Providers must republish the revised Account within 21 days. Guidance will set out how this provision should be applied.
98. Subsection (4) requires a provider to send a copy of their Quality Account to the Secretary of State. The Department of Health intends to publish provider Quality Accounts on the NHS Choices website, which is owned by the Department, but not to check or edit the Account.
99. The Bill sets out a very basic requirement for the publication of Quality Accounts, and the Government intends to supplement that with subsequent guidelines, which providers will need to have regard to when drawing up their Quality Accounts. Regulations and guidance will have the key objectives of making use of information that providers already collect, of tying that into other NHS reporting cycles, and of keeping burdens on providers down to a minimum.
100. Subsection (5) sets out some of the matters about which provision may be made in regulations made under clause 8(1) or (3). These matters include the form and content of a Quality Account and the date on which it must be published, duties on the provider to ensure the accuracy of the information contained in the Quality Account, and requirements for the provider to have regard to any guidance issued by the Secretary of State. The intention is to ensure that the content and timetable for publication can be changed easily and speedily in the future to reflect changing national and local healthcare quality priorities, as well as to ensure that providers take responsibility for the reliability of the content of their Quality Account.
101. Subsection (6) provides that any person can ask the provider to supply a copy of their Quality Account for the current and the preceding two years. All provider Quality Accounts will be available on the NHS Choices website, but the purpose of this subsection is to ensure that providers are required to supply a hard copy of their Quality Account to anyone who requests one.
102. Subsection (7) requires providers to display a notice in their premises informing patients that the latest copy of their Quality Account is available and how a copy can be obtained.
103. Subsection (8) sets out that premises that the provider does not own or run (e.g. the patients own home) or that the provider owns or runs but that patients do not directly access (e.g. a pathology laboratory) are excluded from this requirement.
104. Subsection (9) defines premises for the purposes of subsection (8).
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