Health and Social Care Bill

Memorandum submitted by The Centre for Public Scrutiny (HS 13)

Key messages relating to the Bill

· Flexibility and freedom for local commissioners and providers to better respond to local needs is important - but the Bill can be strengthened to give more weight to local accountability and public involvement, providing checks and balances to greater autonomy and ‘reduced burdens’.

· The ‘governance culture’ established by new bodies and organisations in the new arrangements is important – but the Bill can be strengthened to introduce greater transparency, inclusiveness and accountability and provide opportunities to reward organisations that are responsive to their communities.

· Greater co-ordination by councils of healthcare, social care and health improvement can help strengthen democratic legitimacy of decisions - but the Bill can be strengthened to more closely integrate public involvement into the development of health and well-being strategies and commissioning plans.

· The retention of separate ‘review and scrutiny’ functions and their extension to cover all commissioners and providers of publicly funded healthcare and social care is important - but the Bill can be strengthened to ensure that the circumstances in which contested proposals for changes to services can be ‘referred’ are not restricted by future regulations.

· Arrangements for Healthwatch England and local Healthwatch are important - but the Bill can be strengthened to increase their effectiveness as organisations that can help communities ‘fully engage’ with healthcare, social care and health improvement.

About CfPS

The Centre for Public Scrutiny is widely regarded as the leading national voice for public scrutiny and accountability. We promote policy and provide wide ranging practical support through our comprehensive published guidance, events and network of expert advisors. We work across government, with the Local Government Group and with stakeholders across primary and acute care. CfPS is an independent charity.

Autonomy and Reducing Burdens

Clauses in the Bill relating to increasing autonomy and avoiding unnecessary burdens may conflict with aspirations for the Bill as a whole to enhance patient and public accountability of health services. Autonomy to act locally in the interests of communities is one thing – freedom from local accountability is quite another. The early clauses of the Bill could be amended to strengthen the accountability of providers for services that contribute to achieving outcomes expected from health services - effectiveness, safety and the quality of patient experience.

We consider that the proposed regulation making power in respect of the exercise of functions by the NHS Commissioning Board or commissioning consortia should include requirements for commissioning contracts to include provisions about arrangements for service providers to involve patients and the public and measures of ‘responsiveness’ to the views of patients and the public. This might also be addressed by strengthening the clauses relating to outcomes from good procurement practice, which should have good patient and public involvement at the heart.

NHS Commissioning Board

We think the Board should meet in public and be subject to the same access to information requirements as local councils. The relevant schedule to the Bill could be strengthened appropriately.

We are concerned about the use of the word ‘significant’ in the sub-clause that places a public involvement duty on the Board in developing proposals for changes to services. The introduction of a distinction in circumstances when the Board must involve and consult people is not helpful and the Bill could be amended to strengthen the influence that local people and their representatives are able to have through arrangements to involve and consult them, particularly in relation to proposals for service changes.

Commissioning Consortia

Commissioning consortia are at the heart of the reforms set out in the Bill and are fundamental to the success of the vision for improved healthcare and health improvement. One of the principle aims of the reforms set out in the Bill is increased local accountability through more effective and efficient patient and public involvement and democratic legitimacy. In that context, it seems odd that the Bill is relatively silent about how the views of local people and groups will be heard ‘in real time’ at consortia level so that they can influence commissioning decisions at the time they are being made.

We think the relevant schedule to the Bill could be strengthened to ensure that consortia governance is robust and that non-professional people are included in the governance arrangements. This will help consortia to develop as creative, dynamic bodies that become a focus for local people to become fully engaged in health care and health improvement.

We are concerned about the use of the word ‘significant’ in the sub-clause that places a public involvement duty on consortia in developing proposals for changes to services. The introduction of a distinction in circumstances when consortia must involve and consult people is not helpful and the Bill could be amended to strengthen the influence that local people and their representatives are able to have through arrangements to involve and consult them, particularly in relation to proposals for service changes.

Commissioning plans must set out how consortia propose to carry out their duties relating to quality and finance. We think the relevant clause could be strengthened to include a requirement to set out how patients and the public will be involved. This could take a similar form to the existing Council ‘forward plan of key decisions’ and set out what key commissioning decisions are to be taken over a period, when the decisions will be taken and who will be involved and consulted. This would have the effect of significantly improving transparency of the commissioning process and helping local people and groups to see how they could influence decisions throughout what is commonly known as the ‘commissioning cycle’.

We think the relevant clause about consortia annual reports could be strengthened by requiring that the report should include a section on how consortia have fulfilled their duties of public involvement. We think that the opinions of Health and Well-being Boards and views through ‘review and scrutiny’ arrangements should be included in consortia annual reports.

We think that the relevant clause relating to the performance assessment of consortia should be strengthened to include an assessment of the extent to which consortia have fulfilled their duties of public involvement. This strengthening of performance assessment could be linked to opportunities for the NHS Commissioning Board to make payments in respect of good performance in public involvement (for example, perhaps through a ‘responsiveness premium’).

We think the relevant clauses relating to the duties of the Accountable Officer of a consortium could be strengthened to emphasise accountability for consortia public involvement duties.

Monitor

There are a number of areas where we think the Bill could be strengthened in relation to Monitor. We think Monitor should meet in public and be subject to the same access to information requirements as local councils.

We also think that the clauses relating to consultation and notification of standard licence conditions, special licence conditions and modifications to licence conditions that Monitor might apply could be strengthened along with the clauses relating to notification of discretionary requirements or enforcement undertakings and guidance on local modifications to prices of designated services.

Foundation Trust Governance

We think there the Bill could be strengthened in relation to governance arrangements for foundation trusts. As foundation trusts are public benefit corporations, we think that it is in the public benefit for boards of directors to meet in public and to be subject to the same access to information requirements as local councils in respect of publishing papers and records of decisions.

We think the clause relating to the power for Monitor to appoint a panel to consider questions referred by governors about whether trusts are failing or have failed in certain circumstances could be strengthened by allowing others to also make referrals to the panel, for example through ‘review and scrutiny’ arrangements or local Healthwatch.

Review and Scrutiny

Review and scrutiny powers are to be vested in local authorities (upper tier) themselves rather than in overview and scrutiny committees (as currently required under the NHS Act 2006). This reflects the intention in the Localism Bill for councils to be able to choose different political management arrangements which might not have to include overview and scrutiny committees. CfPS is promoting an amendment to the Localism Bill that would seek to make it a requirement for there to be at least one overview and scrutiny committee, even where councils choose to operate a 'committee system'. If the Localism Bill is amended, the Health and Social Care Bill should be amended to maintain the independence of overview and scrutiny committees, especially in the process of consultation about service changes.

The relevant ‘review and scrutiny’ clause contains a regulation making power that could alter the circumstances in which proposals for service changes could be referred to the Secretary of State, the regulator (Monitor) or the Board (NHS Commissioning Board) and the capacity for the Secretary of State or the Board to give further directions in relation to matters referred.

Currently, overview and scrutiny committees can decide whether proposals for service changes are ‘substantial’, requiring formal consultation of the committee by the NHS and opportunities for contested proposals to be referred to the Secretary of State. This is a robust power – one that does not exist in relation to any other public services. As such, it is a key mechanism for elected councillors to hold commissioners and providers to account over proposals for changes to health services. The Independent Reconfiguration Panel (that advises the Secretary of State about referrals of contested changes) has generally praised the way overview and scrutiny committees have exercised the referral option over the last 8 years.

It is possible that regulations made under the relevant clause could restrict the operation of the referral power either by altering the circumstances in which consultation of councillors by the NHS is required or by requiring decisions to make referrals to be made at meetings of the whole Council. The relevant clause in the Bill should be strengthened to mitigate the potential affects of restricting independent review and scrutiny of health services and proposals for service changes.

Healthwatch England and local Healthwatch

To provide transparency in its relationship to the Care Quality Commission it seems sensible to include the Commission in the list of persons that have to respond in writing to advice/information provided by Healthwatch England. This would go some way to confirming the independence of the Healthwatch England committee within the CQC.

We believe that local Healthwatch organisations should have some core activities that they must carry out – these should relate to gathering and presenting views of patients and the public about their need for services and their experience of services. We believe that there are activities which local Healthwatch could carry out – advice and information about choices is one such discretionary activity. It should be for local authorities to decide whether to make arrangements for local Healthwatch to carry out this activity or whether there are other organisations locally that are better placed to do so. This would be consistent with the discretion provided in the Bill for local authorities to commission independent advocacy services.

This will have the affect of focusing local Healthwatch on key activities and giving discretion for additional activities to be carried out if appropriate locally. It will bring consistency between the two additional functions for local Healthwatch that were promoted in Equity and Excellence (that is, advice/information about choice and complaints advocacy).

We think the relevant clause relating to arrangements that local authorities must make for local Healthwatch activities to be carried out in their areas should be strengthened. The requirement for a local authority to publish a report about the effective operation and value for money of the local Healthwatch arrangements in its area should include publication of clear criteria on which local authorities expect to reach judgements on these two issues. Local authorities should be required to consult local people and organisations for their views about the effectiveness of local Healthwatch.

We consider that the relevant clauses dealing with arrangements made by local authorities for local Heathwatch activities should be strengthened to require consultation before the arrangements are made. Consultations would help authorities understand how local people wish local Healthwatch to operate and make appropriate support arrangements. This would help to mitigate arrangements that are not able to respond to the needs/wishes of local Healthwatch.

We think the relevant schedule of the Bill relating to additional provisions about Local Healthwatch Organisations should be strengthened to clarify that local Healthwatch will need t o publish procedures (including procedures for making and recording decisions and the authorisation of persons to ‘enter and view’) and to publish papers to be considered at meetings, meet in public and publish annual reports about their activities, finances and outcomes achieved.

Conclusion

We have tried to make a positive response to the Bill. We welcome some aspects of the Bill, we have questions about some aspects and there are some aspects that we think could be amended to strengthen the governance, public involvement and accountability aspects. We have set out in this submission some of the fundamental principles that we believe should be built in to the new arrangements to plan and deliver healthcare, social care and health improvement.

February 2011