Health and Social Care Bill

Memorandum submitted by Peter Roderick, (public interest lawyer) (HSR 05)

Summary of evidence

The proposed amendment to Clause 1 of the Bill (to leave it out – Amendment 1), and the proposal to substitute a new section 1 for the current section 1 of the National Health Service Act 2006 (Amendment 174), indicate that the duty on the Secretary of State in section 1(2) of the Act to provide or to secure provision of health services in England is still to be abolished. The effect of these proposed amendments would, if enacted, be to replace this duty with a new duty on the Secretary of State to exercise the functions conferred by the 2006 Act so as to secure that services are provided in accordance with the 2006. Whether this would have the same legal effect as the current section 1(2) can only be determined in the light of an analysis of the functions conferred by the Act (as amended by the Bill), and it is not possible in the short time between the re-committed amendments and the first sitting of the Public Bill Committee on Tuesday 28th July to express a confident opinion. There are several questions that, in my respectful submission, the Committee needs to pose, and which the government must answer, to assist in this regard, and this evidence lists a number of those questions in the form of suggested questions to the Secretary of State. As the nature of the proposed substitution of section 1 of the 2006 Act includes a new section 1(2) which requires the functions conferred by the Act (and the Bill’s proposed amendments) as a whole to be considered, in my further respectful opinion, the Committee needs to address associated provisions.

Evidence

1. I submit this evidence on my own behalf as a public interest lawyer and concerned citizen, without party political or organisational affiliation. I was called to the Bar by Gray’s Inn in 1982. Since May 2011, I have prepared three legal analyses and notes relating to abolition of the duty on the Secretary of State to provide or secure provision of health services in England, and these are available on www.dutytoprovide.net. Since then, I have been in contact with many individuals and organisations who are also concerned with this issue, including my MP, members of the House of Lords and the media.

2. The proposed amendment to Clause 1 of the Bill (to leave it out – Amendment 1), and the proposal to substitute a new section 1 for the current section 1 of the National Health Service Act 2006 (Amendment 174), indicate that the duty on the Secretary of State in section 1(2) of the Act to provide or to secure provision of health services in England is still to be abolished.

3. The effect of these proposed amendments would, if enacted, be to replace this duty with a new duty on the Secretary of State to exercise the functions conferred by the 2006 Act so as to secure that services are provided in accordance with the 2006. Whether this would have the same legal effect as the current section 1(2) can only be determined in the light of an analysis of the functions conferred by the Act (as amended by the Bill), and it is not possible in the short time between the re-committed amendments and the first sitting of the Public Bill Committee on Tuesday 28th July to express a confident opinion.

3. There are several questions that, in my respectful submission, the Committee need to address, and which the government must answer, to assist in this regard, and in the following paragraph I list a number of those questions in the form of suggested questions to the Secretary of State. As the nature of the proposed substitution of section 1 of the 2006 Act includes a new section 1(2) which requires the functions conferred by the Act (and the Bill’s proposed amendments) as a whole to be considered, in my further respectful opinion, the Committee needs to address associated provisions.

4. My 18 suggested questions are as follows, grouped under 4 headings:

I. The Secretary of State’s duties

(1) To ask the Secretary of State to specify each of the functions conferred by the National Health Service Act 2006, as that Act would be amended if the Health and Social Care Bill as re-committed to the Public Bill Committee was to be enacted, which he must exercise so as to secure that services are provided for the purposes of promoting a comprehensive health service in accordance with section 1(1) of the Act

(2) To ask the Secretary of State if he will specify the reason or reasons why section 1(2) of the National Health Service Act 2006, which requires him to provide or to secure provision of health services, needs to be amended.

(3) To ask the Secretary of State if he will consider not abolishing the "duty to provide or to secure provision" of health services placed on him by section 1(2) of the National Health Service Act 2006

(4) To ask the Secretary of State to specify those elected persons or bodies which would determine (a) those services, and (b) the level of those services, which would be provided in accordance with the National Health Act 2006 if the Health and Social Care Bill was to be enacted.

(5) To ask the Secretary of State if he will specify each provision in the Health and Social Care Bill as re-committed to the Public Bill Committee that would impose a duty to provide or to secure provision of health services in England on any public or private body

(6) To ask the Secretary of State to specify his functions in the Health & Social Care Bill which would guarantee (a) that additional services and facilities for the care of pregnant women, breastfeeding women, and young children, required to be provided by him now in accordance with section 3(1)(d) of the National Health Service Act 2006, will continue to be provided as a part of the health service, and (b) that those services will be provided equally throughout England without geographical variation.

(7) To ask the Secretary of State to specify his functions in the Health & Social Care Bill which would guarantee (a) that additional services and facilities for the prevention of illness, people who are ill, and ongoing healthcare for those leaving hospital, required to be provided by him now in accordance with section 3(1)(e) of the National Health Service Act 2006, will continue to be provided as part of the health service, and (b) that those services will be provided equally throughout England without geographical variation.

II. Rights and entitlements to (free) health services

(8) To ask the Secretary of State if he will specify those provisions of the Health and Social Care Bill which he considers would, if enacted, affect the right and/or entitlement to health services of people in England

(9) To ask the Secretary of State to guarantee that if the Health & Social Care Bill was enacted, hospital, medical, surgical, nursing and ambulance services would continue to be provided as a right and/or entitlement equally across the whole of England.

(10) To ask the Secretary of State to specify those services which, in light of the proposed amendment in the Health and Social Care Bill to section 1(3) of the National Health Service Act 2006, would not be provided as part of the health service in England.

III. Commissioning

(11) To ask the Secretary of State to specify the reasons why the Health and Social Care Bill, as re-committed to the public Bill Committee, does not a impose a duty on commissioning consortia to provide or to secure provision of health services, such as medical services, nursing services and ambulances.

(12) To ask the Secretary of State to confirm that the Health & Social Care Bill, if enacted in its current form, would give the responsibility for deciding what constitutes "a reasonable level of health services" to the commissioning consortia, and removes this responsibility from the Secretary of State.

(13) To ask the Secretary of State to specify what provisions there are in the Health & Social Care Bill to prevent commissioning consortia deciding that health services and facilities for the care of pregnant women are not a priority.

(14) To ask the Secretary of State to specify the duties and powers which the Health and Social Care Bill would, if enacted, impose or confer on clinical commissioning groups in order to provide, secure provision of, or arrange for provision of health services in England; and, if no such duties and powers can be specified, to explain why that is the case.

(15) To ask the Secretary of State to explain whether, if the Health & Social Care Bill was to be enacted, a commissioning consortium could consist (a) only or mainly of companies or of individuals representing such companies, and (b) only or mainly of non-UK (including US) companies or of individuals representing such companies.

(16) To ask the Secretary of State to specify those provisions in the Health and Social Care Bill which would, if enacted, ensure that members of a commissioning consortium would be individual GPs in private practice.

IV. Possibility of introduction of means-testing

(17) To ask the Secretary of State to specify how section 1(3) of the National Health Service Act 2006 would, if the Health & Social Care Bill was to be enacted, prevent current and future recipients of health services in England from being means-tested in respect of health services.

(18) To ask the Secretary of State if he will specify the provisions of the Health and Social Care Bill that allow for means-testing in relation to receipt of health services; and, if none can be specified, if he will guarantee that such mean testing will not occur.

June 2011

Prepared 30th June 2011