Health and Social Care Bill

Memorandum submitted by Rethink (HS 47)

Overview

This briefing has been produce by a range of national charities, including Age UK, the Alzheimer’s Society, Asthma UK, Breakthrough Breast Cancer, British Heart Foundation, Diabetes UK, National Voices (and through them over 100 charities), Rethink mental illness and the Stroke Association.

We would like to take this opportunity to welcome the Government’s aim for a health service that puts patients at its heart. However, we have noted several areas where we feel the Bill needs to be amended to make their aims a reality. Our specific amendments are outlined below, broadly listed under patient and public involvement in commissioning; strengthening local scrutiny; and integrated care.

Strengthening Patient and Public Involvement in commissioning

The involvement of the local population in commissioning and service design is fundamental to making the Government’s promise of ‘no decision about me without me’ a reality. The Bill sets duties to promote Patient Involvement but provides no definition of what this should entail.

Public Involvement is set out in terms of local HealthWatch and HealthWatch England. However, HealthWatch should be just one aspect of a much wider range of involvement opportunities. This is particularly important for those more vulnerable or disabled people who may be less likely to be represented by either their local HealthWatch or on the National Commissioning Board.

Also, whilst the new Health and Wellbeing Boards will involve a representative from HealthWatch, the role of these Boards is to: encourage integration between health and social care; provide advice, assistance or other support for the arrangements for service provision; and encourage persons working in health services to work with the Health and Wellbeing Board. As such, Health and Wellbeing Boards are not the central decision making bodies in health and social care. Below outlines our specific recommendations to improve patient and public involvement in commissioning:

A) Duty as to reducing inequalities, promoting patient involvement etc. (Board)

Amendment 1

Section 19 (Clause 13F), Page 17, line 4

Add sub-clause:

(3) In this section, ‘patient involvement’ means the participation of the groups referred to in (1)(c) in:

(a) commenting, by complaints or comments made or views expressed (including the descriptions of their experiences of care and treatment) on the quality of the commissioned services for the purposes of monitoring and quality improvement

(b) being provided with appropriate information and support in relation to their care or treatment by the services commissioned by the Board

(c) being encouraged by those who provide the commissioned services to understand the care or treatment choices available to them, and to discuss with an appropriate health care professional, or other appropriate person, the balance of risks and benefits involved in any particular course of care or treatment

(d) being enabled to make, or to participate in making, decisions relating to their care or treatment

(e) being provided, where appropriate, with opportunities to manage their own care or treatment

(f) giving consent in relation to the care and treatment provided for them

Explanation

The Government has stated a clear intention that the Bill should introduce a more significant role for the patient in their own care and treatment. It is essential, therefore, that the Bill defines ‘patient involvement’ where duties to commissioning consortia and the Board are applied.

B) Duty to obtain appropriate advice

Amendment 2

Section 19, Clause 13G (Page 17, line 19)

We propose deleting the current clause heading and text and inserting:

13G Duty to involve multi-disciplinary professionals and patients

(1) This section applies in relation to any health services which are, or are to be, provided pursuant to arrangements made by the Board ("commissioning arrangements").

(2) The Board must make arrangements to secure the involvement of

(a) a range of multidisciplinary health and social care professionals, including those with expertise in the conditions for which services are being commissioned

(b) groups representing patients and carers with expertise in the conditions for which services are being commissioned

(3) The reference in subsection (5)(b) to the delivery of services is a reference to their delivery at the point when they are received by users.

(4) In this section, "health services" means any services that are (or are to be) provided as part of the health service.

(5) In this section, ‘involvement’ means participation of the groups listed in 2 (a) and (b)

(a) in the planning of the commissioning arrangements by the Board,

(b) in the development and consideration of proposals by the Board for changes in the commissioning arrangements where the implementation of the proposals would have a significant impact on the manner in which the services are delivered to the individuals or the range of health services available to them, and

(c) in decisions of the Board affecting the operation of the commissioning arrangements where the implementation of the decisions would (if made) have such an impact

(d) in decisions about the priorities and strategy for commissioning by the Board in relation to its mandate

(e) in identifying and assessing the needs and demands for services of relevant populations and groups of conditions

(f) in the preparation of plans for commissioning health services

(g) in decisions about which services to commission

(h) in the preparation and publication of guidance as to how these services should be designed to meet people’s needs

(i) in monitoring the quality and effectiveness of the commissioned services"

Explanation:

Currently the Bill states that the National Commissioning Board "must make arrangements with a view to securing that it obtains advice appropriate for enabling it effectively to discharge its functions from persons with professional expertise relating to the physical or mental health of individuals".

To ‘involve’ is a much stronger duty which will lead to greater involvement of professional and patient groups, which the Government has stated as an aim of the Bill.

We also consider it essential that this duty be extended to ‘involving patients and carers’ in addition to expert professionals.

Alongside wanting to ensure that the new NHS offers patients and their representative groups an opportunity to be heard, our organisations are concerned about the lack of emphasis on input into local service design and commissioning from a range of expert health and social care professionals.

The commissioning of whole pathways of care for some conditions will fall under the remits of public health, the NHS Commissioning Board and GP consortia, which risks the fragmentation of service provision. Multi-disciplinary involvement of specialists, Allied Health Professionals, education, social care and patients is required to enhance continuity of care and improve quality standards for patients. As such we would like reassurances that "persons with professional expertise" will apply to the full range of health and social care professionals.

C) Public Involvement and consultation by the Board

Amendment 3

Section 19 Clause 13L (page 18, line 22):

Delete ‘(whether by being consulted or provided with information in other ways)’

Explanation:

The Bill currently suggests that: "The Board must make arrangements to secure that individuals to whom the services are being or may be provided are involved (whether by being consulted or provided with information in other ways)".

We feel strongly that "providing information" is not meaningful involvement and therefore this text must be significantly strengthened. However, regulations must provide for exceptional circumstances in which normal consultation cannot occur for reasons of safety or similar (i.e. an outbreak of swine flu would require information to be quickly disseminated and full consultation would not be possible).

Amendment 4

Section 19 Clause 13L (page 18, line 20): delete (a) and add additional sub-clauses

(a) in decisions about the priorities and strategy for commissioning by the Board in relation to its mandate

(b) in identifying and assessing the needs and demands for services of relevant populations and groups of conditions

(c) in the preparation of plans for commissioning health services

(d) in decisions about which services to commission

(e) in the preparation and publication of guidance as to how these services should be designed to meet people’s needs

(f) in monitoring the quality and effectiveness of the commissioned services"

Explanation:

The amendment above proposes a stronger clarification of expected involvement activities to help ensure that such involvement is meaningful.

D) Duty on GP consortia to reduce inequalities, promote patient involvement

Amendment 5

Section 22 Clause 14N (Page 30, line 29)

Add new sub-clause

(3) In this section, ‘patient involvement’ means the participation of the groups referred to in (1)(c) in:

(g) commenting, by complaints or comments made or views expressed (including the descriptions of their experiences of care and treatment) on the quality of the commissioned services for the purposes of monitoring and quality improvement

(h) being provided with appropriate information and support in relation to their care or treatment by the services commissioned by the Board

(i) being encouraged by those who provide the commissioned services to understand the care or treatment choices available to them, and to discuss with an appropriate health care professional, or other appropriate person, the balance of risks and benefits involved in any particular course of care or treatment

(j) being enabled to make, or to participate in making, decisions relating to their care or treatment

(k) being provided, where appropriate, with opportunities to manage their own care or treatment

(l) giving consent in relation to the care and treatment provided for them

Explanation

The Government has stated a clear intention that the Bill should introduce a more significant role for the patient in their own care and treatment. It is essential, therefore, that the Bill defines ‘patient involvement’ where duties to commissioning consortia and the Board are applied.

E) Duty to obtain appropriate advice (Commissioning Consortia)

Amendment 6

Section 22 (Clause 14O) Page 30, line 32

We propose deleting the current clause heading and text and inserting:

14O Duty to involve multi-disciplinary professionals and patients

1) This section applies in relation to any health services which are, or are to be, provided pursuant to arrangements made by the commissioning consortium ("commissioning arrangements").

(2) The commissioning consortium must make arrangements to secure the involvement of

(a) a range of multidisciplinary health and social care professionals, including those with expertise in the conditions for which services are being commissioned

(b) groups representing patients and carers with expertise in the conditions for which services are being commissioned

(3) The reference in subsection (5)(b) to the delivery of services is a reference to their delivery at the point when they are received by users.

(4) In this section, "health services" means any services that are (or are to be) provided as part of the health service.

(5) In this section, ‘involvement’ means participation of the groups listed in 2 (a) and (b)

(a) in the planning of the commissioning arrangements by the commissioning consortium,

(b) in the development and consideration of proposals by the commissioning consortium for changes in the commissioning arrangements where the implementation of the proposals would have a significant impact on the manner in which the services are delivered to the individuals or the range of health services available to them, and

(c) in decisions of the commissioning consortium affecting the operation of the commissioning arrangements where the implementation of the decisions would (if made) have such an impact

(d) in decisions about the priorities and strategy for commissioning by the commissioning consortium in relation to its mandate

(e) in identifying and assessing the needs and demands for services of relevant populations and groups of conditions

(f) in the preparation of plans for commissioning health services

(g) in decisions about which services to commission

(h) in the preparation and publication of guidance as to how these services should be designed to meet people’s needs

(i) in monitoring the quality and effectiveness of the commissioned services"

F) Public involvement and consultation by commissioning consortia

Amendment 7

Section 22 Clause 14P (page 30, line 44)

Delete ‘(whether by being consulted or provided with information in other ways)’

Explanation:

As noted in Amendment 3 of this briefing we feel strongly that "providing information" is not meaningful involvement and therefore this text must therefore be significantly strengthened.

However, regulations must provide for exceptional circumstances in which normal consultation cannot occur for reasons of safety or similar (i.e. an outbreak of swine flu would require information to be quickly disseminated and full consultation would not be possible).

Amendment 8

Section 22 Clause 14P (page 30, line 44) delete (a) and add additional sub-clauses

(a) in decisions about the priorities and strategy for commissioning by the consortium

(b) in identifying and assessing the needs and demands for services of relevant populations and groups of conditions

(c) in the preparation of plans for commissioning health services

(d) in decisions about which services to commission

(e) in monitoring the quality and effectiveness of the commissioned services

Explanation:

The amendment above proposes a stronger clarification of expected consultation activities to help ensure that such involvement is meaningful.

G) Constitution of commissioning consortia and lay representation

Amendment 9

Schedule 2, Part 1, page 227 line 12

Insert new Section (3)(1) and (2):

(1) The Constitution must specify the arrangements made by the commissioning consortium to establish a governing Board.

(2) The governing Board of each commissioning consortium must comprise of equal numbers of consortium member representatives and lay representatives of the population served by the consortium.

(3) The lay representatives on the governing Board must have the sole function of representing the interests of the population and must have no professional or pecuniary interest in the matters for which the consortium is responsible.

(4) The governing Board should meet in public, make relevant documents publicly available, and report its decisions publicly.

Explanation:

Given the Government’s commitment to strengthening the role of the public and patients in the NHS, it is essential that they can play a meaningful role in governing their local GP Consortia through its governing Board. Public governance and scrutiny of these operations is especially important given that the bulk of the NHS’ finances will be managed by GP Commissioning Consortia. This will ensure that members of the public can play a role in their decision making processes.

We would expect lay representatives to be at least as numerous as consortium representatives. Precedent for this is well established given that all other NHS bodies have lay involvement on their Boards, e.g. through non-executives or elected members of Primary Care Trusts / Foundation Trusts; all health professional regulatory bodies must have a lay majority by law and the Coalition Government Agreement promised that local health boards would be democratically elected.

H) Annual reporting of the Commissioning Board re: patient involvement

Amendment 10

Section 19, Clause 13P (page 20, line 10)

Delete current wording for (c) and insert:

"how effectively it discharged its duties 13C-13N"

Explanation:

The Bill sets out the content of the annual report of the Board in the discharge of their duties. The current draft requires only for them to report on duties relating to quality of services (13D) and public involvement (13L).

We argue that the increased devolution of responsibility calls for greater accountability and transparency, and therefore the Board should report on the discharge of all their legal duties.

This would cover the Board’s duties to be effective and efficient (13C); its duty to promote autonomy (13E); its duty to reduce inequalities and promote patient involvement (13F); its duty to obtain appropriate advice (or as this briefing’s Amendment 1 requests ‘involve’); its duty to promote innovation (13H); its duty in respect of research (13I); its duty to encourage integrated working (13J) and its duty to have regard to impact on services in certain areas (13K); its information on safety of services provided by the health service (13M) and guidance in relation to the processing of information (13N). 13F and 13J are considered particularly important for this group.

I) Consortia commissioning plans

Amendment 11

Section 21, Clause 14Y (Page 34, line 10)

After ‘14L,’ insert new sub-clause

"(b): 14P"

Explanation:

Similar to the above amendment for the National Commissioning Board, the Bill currently requires that commissioning consortia must set out proposed discharge of certain duties, relating only to improvement to services (14L) and financial efficiency (223I – 223K).

We argue that consortia must be transparent about their plans for the discharge of their duty on public involvement, hence our addition of (14P – Public involvement and consultation by commissioning consortia).

Amendment 12

Section 21, Clause 14Y (page 34, line 12)

After ‘223K’ insert new sub-clause (3):

(3) "In preparing the plan, and in pursuit of its duties 14L and 14P, each commissioning consortium must consult with the persons mentioned with reference to duties 14K to 14P inclusive and with HealthWatch."

Explanation:

This amendment will ensure that local HealthWatch bodies will have an opportunity to feed into the plans of GP Commissioning Consortia. Given that these plans will outline the detail of local NHS provision for the year ahead (including the budget allocated to set areas), it is essential that HealthWatch has a timely opportunity to feed into this.

J) Assessing the performance of consortia

Amendment 13

Section 21, Clause 14Z1 (Page 35, line 17)

Delete "(a) section 14L, and" and insert

"(a) sections 14K to 14P inclusive

Explanation:

Similar to Amendment 11, the Bill sets out the arrangements for the assessment of GP commissioning consortia by the Board. Currently, the Bill only requires that the consortia should be assessed on areas relating to service improvement and financial efficiency. To ensure transparency, we argue that consortia should be assessed on all of their duties, including public involvement.

K) Procedural requirements in connection with certain powers (the National Commissioning Board)

Amendment 14

Section 21, Clause 14Z7 (page 38, line 5)

Add new sub-clause (c):

"relevant local Healthwatch organisations"

Explanation:

The National Commissioning Board has certain powers set out, such as powers to give directions and dissolve consortia. The Board must consult with the Commissioning Consortia, relevant authorities and ‘any other persons’ currently. We argue that plans to carry out these powers should also be shared with local Healthwatch and that they must be consulted.

L) Joint Strategic Needs Assessments

Amendment 15

Section 176, Clause 6 (page 149, line 24)

After ‘appropriate’, add ‘and must consult Healthwatch organisations in that area’

Explanation:

The Joint Strategic Needs Assessment represents a key opportunity for public involvement in local strategy and provision. The authority or commissioning consortia are currently only permitted to consult ‘any person it thinks is appropriate’. We consider that a duty to involve local Healthwatch would be more appropriate.

2 Strengthening local scrutiny and accountability

The Bill provides greater flexibility for local authorities to carry out scrutiny of the local health service as they see fit. There may be provision for local overview and scrutiny committees, but these will not be mandatory.

This element of the Bill runs counter to the emphasis placed on independent scrutiny of health decisions in the Government’s Coalition agreement, published in May 2010. This document stated:

‘We will ensure that there is stronger voice for patients locally through directly elected individuals on the board of their local PCT. The remainder of the PCT’s board will be appointed by the relevant local authority or authorities… this will ensure the right balance between locally accountable individuals and technical expertise.’ [1]