Health and Social Care Bill

Memorandum submitted by the Royal College of Psychiatrists

(HS 24)


1. The Royal College of Psychiatrists (RCPsych) welcomes the opportunity to submit evidence on the Health and Social Care Bill. RCPsych is the leading medical authority on mental health in the United Kingdom. We are the professional and educational organisation for doctors specialising in psychiatry, representing over 12,000 psychiatrists in the UK. We collaborate with key players in the mental health field and are champions for improvements in the quality of mental healthcare throughout all sectors of society.

2. Our approach to health reform is fundamentally based on how it will affect the care, welfare and treatment of the one in four people with mental health problems. We welcome the following aspects of the Health and Social Care Bill: putting the patient at the centre of care, the focus on clinical outcomes, increased involvement of clinicians in commissioning (with a corresponding reduction in management costs), ring-fenced money for Public Health and the aspiration for joined up social care and public mental health outcomes.

3. However, we remain concerned about how the scale and the pace of change may impact on the care and, in particular, the continuity of care that can be given to patients with mental health problems. We are particularly concerned that in some areas the new GP consortia will not yet have developed the skills or expertise to support mental health commissioning and believe that there needs to be engagement of specialist clinicians from the outset.  We are pleased that in the recently published Mental Health Strategy (para 5.73) the Government state that they will work with the Royal College of General Practitioners, the Royal College of Psychiatrists, the Association of Directors of Adult Social Services and the NHS Confederation to develop guidance and support for GP consortia in commissioning effective mental health advice. [1]

4. We urge the Committee to seek clarification on how certain areas of the reforms will work in practice and agree amendments to strengthen the legislation.

5. In this submission we would like to emphasise the following key points:

· The Government has already stated that all clinicians will need to work collaboratively to share expertise in the commissioning of services. They have not, however, stated on record how this will work in practice and we welcome the fact that the Health Committee has identified this as an area of concern.

· The meaning of the duties in the Bill for GP consortia and the NHS Commissioning Board to ‘obtain appropriate advice’ when carrying out their functions need to be explained fully at Committee Stage. Both consortia and the Board should also be required to outline how they carried out this duty in their annual reports.

· Reassurances are needed at Committee that clinicians working together across primary, secondary and tertiary care will not be accused of breaking Competition Law by working closely on service delivery.

· The College is concerned that GP consortia – who have little or no prior experience of local population needs assessment - will struggle to commission services for hard-to-reach groups, such as people with severe mental illness, unless they carry out high quality local needs assessments. Amendments are needed at Committee to ensure that this takes place.

· Further scrutiny of Any Willing Provider is needed with safeguards to ensure that the roll out of the model does not negatively affect the stability of services, continuity of care and quality of care. We would also like to see clarification on how far Any Willing Provider will apply to mental health.

Specialist expertise in Commissioning (Part 1)

6. At Second Reading of the Bill, the Secretary of State, Rt Hon Andrew Lansley MP, stated clearly that clinical leadership in the management and design of care is an essential part of the Government’s reforms: ‘It is only by virtue of our ability to engage front-line clinicians more strongly in the management and design of care that we will deliver those quality, innovation, productivity and prevention ambitions.‘ [2] He went on to say that : ‘at every step, clinical leadership-that of doctors, nurses and other health professionals-will be right at the forefront.’ [3]

7. The Royal College of Psychiatrists support this view. However, we believe that the mechanics of how this collaboration will work in practice still need to be set out at Committee Stage.

8. We are concerned to ensure that the newly-established bodies are able to commission mental health services effectively so that high-quality services are provided to all that need them. In order to achieve this we believe, along with all the other Medical Royal Colleges including the Royal College of General Practitioners, that clinical commissioning must involve a close working relationship between GPs and specialists. Furthermore, in order to meet the needs of those mental health patients with particularly complex difficulties – a group of patients for whom care is costly and about whom GPs will have relatively little knowledge – the role of psychiatrists in advising commissioners will be vital.

9. The Nuffield Trust [4] has documented international research which shows the importance of specialist involvement: ‘The US experience shows that holding risk-bearing budgets can motivate doctors to deliver efficient, coordinated care that reduces avoidable and repeated admissions to hospital. However, to achieve this, the groups had to ensure that primary and specialist doctors cooperated closely and were able to invest in a range of high quality and innovative services that offer alternatives to hospital care, particularly for older patients with chronic conditions.’ [5]

10. People with mental illness range widely from those with common mental disorders, such as anxiety, depression and addiction problems, to those with severe and complex disorders, such as schizophrenia and bipolar disorder. Among them are groups with very specific diagnoses and specific needs who are not always well understood or for whom adequate services have been lacking, for example those with borderline personality disorders, dual diagnosis (both serious mental health problems and addiction problems) and learning difficulties. We believe that without specialist clinical expertise in commissioning, there is a danger that services for patients with severe and complex services will be adversely affected. Although this group of patients is smaller in number than people with common mental disorders, the cost of treatment is significantly higher. We are concerned that this could make them a lower priority for GP consortia.

Duty to obtain appropriate advice (Part 1, Clauses 19 and 21)

11. The Bill sets outs duties for both the Commissioning Board (Clause 19 (13G)) and GP consortia (Clause 21 (14O)) to ‘obtain appropriate advice’ in carrying out their functions. These duties are further outlined in the explanatory notes to the Bill.

12. For GP consortia, the explanatory notes describe it as a duty to ’obtain appropriate advice from people with professional expertise in relation to physical and mental health. This could involve, for example, a consortium employing or otherwise retaining healthcare professionals to advise the consortium on commissioning decisions for certain services, or appointing professionals to any committee that the consortium may set up to support commissioning decisions.’ For the NHS Commissioning Board, the duty is to: ‘take the view of other healthcare professionals, so it can effectively discharge its functions.’

13. Neither the wording in the legislation or the description in the explanatory notes adequately explains what will constitute having obtained appropriate advice, in order that the NHS Commissioning Board and GP consortia will be able to demonstrate how they met these duties (as we feel they should be required to in their annual report – see below).

Annual Report (Part 1, Clauses 19 and 21)

14. The Bill places a duty on the NHS Commissioning Board (Clause 19 (13P)) and GP Consortia (Clause 21 (14Z)) to publish annual reports. We believe that these will be important documents to assessing the performance of these bodies and indicating areas for improvement. We believe that there should be a duty on the NHS Commissioning Board and GP Consortia to outline how they ‘obtained appropriate advice’ in their annual reports. This will ensure that there is meaningful involvement from secondary care specialists – who, after all, are the health professionals with the most experience of, and knowledge about, particular groups of patients - in the commissioning of services.

Concerns about close working between clinicians being seen as a conflict of interest (Part 3, Chapters 1 and 2)

15. Section 51(1a) places a duty on Monitor to promote competition in health and adult social care services, while Section 62 ensures that healthcare services come under the aegis of the Office of Fair Trading (under part 4 of the Enterprise Act 2002). The College is seeking clarification on a potentially contentious issue whereby clinicians may feel that they will be accused of breaking Competition Law by working collaboratively over service issues. This would have direct implications for integrated care and good patient outcomes.

16. It will be critical in the new system that clinicians (both GPs and psychiatrists) feel able to work closely to improve local services. We are concerned about a situation where providers who have been unsuccessful in bidding for services may cite the close working between clinicians as a conflict of interest, and we feel that clarification on what is acceptable and unacceptable behaviour in terms of contact between GPs and other clinicians should be given by the NHS Commissioning Board at the outset in order that all clinicians know where they stand.

Any Willing Provider: (Part 3, Chapter 2, Clause 61-63.)

17. Chapter 2 of the Bill, in particular Clause 61 will further roll out the Government’s service provision model ‘Any Willing Provider’. The Government’s aim in introducing ‘Any Willing Provider’ is to promote choice and competition in the NHS. The Royal College of Psychiatrists support choice and competition where they can stimulate innovation and, importantly, drive up the quality of mental health care.

18. However, we are very concerned about the crude potential use of the concept of ‘any willing provider’ and we have evidence from addictions services to suggest that the current model has involved frequent retendering, with decisions often made on price over quality and which has led to service fragmentation, disruption to continuity of care, and loss of integration of care pathways. [6]

19. We would like clarification as to whether Any Willing Provider will apply fully to mental health. If this is the case, we have grave concerns that patient continuity of care will suffer under such a system, and would urge that the Government stipulates that mental health will instead be subject to competitive tendering, with one main provider being granted a contract for services rather than myriad providers under the Any Willing Provider model.

20. We would also urge the Government to ensure that competitive tendering for mental health services should be done on the basis of a minimum period contracts (whether that service be run by a statutory, private or voluntary sector provider) in order that the lack of stability which arises when services are re-tendered after only two or three years, and which are already apparent in some sections of the mental health service work, are not replicated across the sector.

Joint Strategic Needs Assessment: Meeting the needs of hard-to-reach patients, including those with severe mental illness and other complex needs (Part 5, Chapter 2, Clause 176)

21. In Part 5, Clause 176, the Bill sets out the framework for ‘Joint Strategic Needs Assessments’. This is the process that identifies current and future health and wellbeing needs in light of existing services, and informs future service planning taking into account evidence of effectiveness. JSNAs are currently carried out by the local authority, but Clause 176 sets out a joint responsibility between local authorities and GP consortia.

22. There are already concerns (which a number of local authorities acknowledge) about the ability of local authorities to ensure the JSNAs reflect the true prevalence of mental health problems and the needs of their populations. [7] [8] [9] [10] There is a danger that simply expecting GP consortia (with no prior expertise in this area) to undertake these JSNAs will replicate the problems which local authorities have encountered.

23. Amendments are needed at Committee to ensure that the NHS Commissioning Board is required to produce guidance for consortia on how to conduct a Joint Strategic Needs Assessment such that it best captures the current and future needs of their population in its entirety; and to ensure that GP consortia are required to demonstrate that they have taken this guidance into account when conducting their JSNA.

Changes to the Mental Health Act (Part 11, Clause 273)

24. The College welcomes clause 273 of the Bill which will permit patients with mental capacity subject to a community treatment order to consent to the treatment recommended by their doctor, should they wish, without the need for a statutory second opinion doctor to agree. This will both strengthen safeguards and reduce costs. Furthermore, it will mean that if patients with mental capacity, who have been consenting to treatment, change their minds, they will have the right to a second opinion doctor before being forced to have the treatment (other than in an emergency).

24. The College however, as a member of the Mental Health Alliance has concerns for those patients who lack capacity to consent and their access to a second opinion doctor should they be recalled to hospital. We also believe that the criteria for community treatment orders are too widely drawn and need to be narrowed so that they are used for that group of people for whom they were originally intended and for whom they are beneficial. We will be seeking amendments to address these problems.

February 2011

[1] No Health Without Mental Health: A Cross Government Mental Health Outcome Strategy for people of all ages; Department of Health (2011)

[2] Col 600: HOC Hansard: 31.1.11.

[3] Ibid

[4] The Nuffield Trust is one of the leading independent health policy charitable trusts in the UK.



[7] (for example, p28)


[9] (for example, p11)

[10] (for example, p9)