Health and Social Care Bill

Memorandum submitted by the North West Scrutiny Support Officers’ Network (HS 54)

The North West Scrutiny Officers Network is led and attended by scrutiny officers from local authorities in the region. They share best practice and work together to prevent duplication of effort. They maximise their pooled knowledge and resources to support the development of their respective scrutiny functions. The submission in respect of the Health and Social Care Bill is from Officers who specialise in the health scrutiny function and have many years experience in facilitating democratic legitimacy in health and social care.

Our submission is brief and I would point out that the Network is largely supportive of the elements of the Bill that relate to the scrutiny functions of local authorities. There are however two areas of primary concern that we would like to bring to the attention of the Committee.

Firstly, Chapter 2 of the Bill titled ‘Local Government Scrutiny functions of local authorities, Section 175, subsection 3 (a) which states ‘as to circumstances in which the authority may refer any of those matters to the Secretary of State, the regulator or the Board’.

Currently, a local authority health scrutiny committee has right of referral to the Secretary of State in relation to substantive service changes by NHS trusts. According to paragraph 5.41 of ‘Liberating the NHS legislative framework and next steps’ (published Dec 2010), in future ‘the local authority will be able to refer decisions about significant changes to any designated services to the Secretary of State’. The Chapter of the Bill referred to above will allow the Secretary of State, via regulations, to make provision to allow the referral of only ‘designated’ services in the future. Our understanding is that ‘designated’ services will be those designated by the regulator as being essential services. Therefore, if this particular element becomes enacted, it will not be possible in the future to refer any services that have not been designated, thereby allowing an undeterminable number of still very important services to ‘slip through the net’, so to speak, in relation to the referral mechanism.

We would point out that since its inception under the Health and Social Act 2001, the power of referral to the Secretary of State has been used very sparingly across the country. Nevertheless, it is considered to have been a very useful mechanism of last resort in the arbitration of disagreements between NHS Trusts and the democratic health scrutiny function. We feel that if the referral mechanism were to apply only to designated services, it would be a retrograde step and would remove an important element of the democratic process that currently needs to be considered by Commissioners and Providers of services, when applying changes to services.

The second matter that we would like to draw your attention to also refers to Chapter 2 of the Bill titled ‘Local Government Scrutiny functions of local authorities, Section 175, subsection 3 (a) which states ‘as to circumstances in which the authority may refer any of those matters to the Secretary of State, the regulator or the Board’. I again refer to Liberating the NHS legislative framework and next steps’ (para. 5.43) which states ‘ To ensure that the health scrutiny model is consistent with other forms of scrutiny in local authorities, and as democratic as possible, we propose that any decision to refer a substantial service change proposal should be triggered by a meeting of the full council’

Again, the Chapter of the Bill referred to above will obviously allow the Secretary of State, via regulations, to enact the provision whereby a referral to the Secretary of State can only be made following agreement by a meeting of full Council. We submit that this proposal is fundamentally flawed and should not be enacted. As we see it, there are two major problems. Firstly it is necessary to stress that on the rare occasions a referral to the Secretary of State is required, it is necessary to act quickly when often the closure of an important service provision is at stake. It would simply add an unworkable timescale element to the whole process if it was necessary to route a referral through full Council. This is because in a number of authorities, meetings of full Council take place on an infrequent basis, e.g. once every two months.

There is also the issue of whether in fact such a matter being considered by full Council will add anything of value to the democratic process. The stated rationale behind the proposal is to ensure consistency with other forms of scrutiny in local authorities and to be as democratic as possible. We submit that the proposal would not achieve any of these aims. Firstly, local government scrutiny reports are not normally routed through full Council except in very exceptional cases. Secondly, meetings of full Council are comprised of both executive and non-executive councillors, whereas the scrutiny function is carried out by non-executive councillors who make recommendations via the Council’s executive. If Government’s proposal is to be taken forward, it will add a layer of bureaucracy to the process that is simply not necessary.

To conclude, we can see no reason to amend the current legislation around referrals of substantive service changes and the current route of referral.

February 2011