Health and Social Care Bill

Memorandum submitted by Kath Dalmeny and Joe Short (HSR 08)

1. This submission addresses matters contained within the Health and Social Care Bill (revised version published by the coalition government, Thursday 23 June, 2011), and concentrates on issues where we have a special interest in, and questions which we would like the Committee to be aware of when scrutinising the Bill.

A) Background to the individuals submitting this evidence

 

2. This paper is submitted by Kath Dalmeny and Joe Short, who do not have specific legal expertise. We are friends of public interest lawyer Peter Roderick, who has submitted evidence to the Public Bill Committee separately. In this matter, we act independently of any organisation or political party, as concerned citizens with a strong personal interest in the future of the National Health Service. We established the website www.dutytoprovide.net on 9 June 2011 with the purpose of sharing the expert legal opinion of public interest lawyer Peter Roderick on specific and fundamental legal implications of the original government’s Health and Social Care Bill, which proposed removal of the "duty to provide or secure provision of healthcare" placed on the Secretary of State since the establishment of the National Health Service in 1946.

3. We have since been in discussion with several MPs, members of the House of Lords and stakeholder organisations in the health and other related sectors to encourage consideration of some fundamental legal questions in the scrutiny of the Health and Social Care Bill, resulting in several parliamentary questions, verbal briefings and media reports – all relating to the original version of the Bill. We will encourage more such scrutiny through our limited sphere of influence as concerned citizens, with no specific political or organisational affiliation on this matter, and also hope that this submission will help to inform and shape the scrutiny that the Public Bill Committee will undertake.

B) Summary of concerns and format of this submission

 

4. Following the "period of listening" and the Future Forum report, the Government has revised the Health and Social Care Bill and the latest version was published on Thursday 23 June 2011. We understand that this revised Health and Social Care Bill will be passed to the Public Bill Committee in Parliament, with your scrutiny process beginning on Tuesday 28 June 2011.

5. We believe this process allows very little time for detailed and independent scrutiny, and think this time scale is unduly short for the proper consideration of the fundamental legal issues that we think the revised Health and Social Care Bill contains. On initial reading of the revised Health and Social Care Bill, we think there are still very big issues with the wording of the revised Bill and remain very concerned that fundamental changes to the basis of the National Health Service will slip through without the public and parliamentary debate they deserve. However, we have neither the time nor the resources to produce or commission a full and robust legal opinion ready for the beginning of the Public Bill Committee process on Tuesday 28 June 2011.

6. We therefore pose our concerns in the form of questions, below, plus recommended actions for the Secretary of State to make the implications of the changes clear to people in England who will be directly affected by the changes proposed, now and for generations to come. We therefore believe these questions demand urgent clarification and hope that the Public Bill Committee will be able to help set in motion the process to answer them, and for those answers to be placed in the public domain, and raised in parliament for proper debate and scrutiny. For example, will enactment of the revised Health & Social Care Bill (intentionally or by omission) result in:

6.1 no duty to provide, nor any duty to secure provision ofservices, imposed on the Secretary of State or any other body

6.2 no specification of which are priority health services that must be provided, and which can be at the discretion of commissioning consortia

6.3 no elected body determining what health services will be provided

6.4 significant geographical differences in provision of health services

6.5 potentially, in the future, provision of some health services being means-tested

6.6 potentially, in the future, provision of some health services requiring a financial contribution from the patient

7. We believe that there is sufficient evidence in the new draft of the Health and Social Care Bill to warrant strong public concern. We also believe that such questions need to be answered – as a matter of priority – before citizens and their parliamentary representatives in the House of Commons and the House of Lords can make informed decisions about whether or not to support the recommited Health and Social Care Bill in its passage into law.

C) Recommendations to the Secretary of State to clarify the proposed changes to the National Health Service 

 

9. We believe that the public and many of their representatives in the House of Commons and House of Lords are unclear as to the implications of certain details of the revised Health and Social Care Bill. We believe that they therefore lack the full information and analysis to enable them to make informed decisions about whether or not to support the Health and Social Care Bill in its passage into law. We think, therefore, that the Secretary of State should make a comprehensive statement, giving full details of:

9.1 what functions are conferred on the Secretary of State in the Health and Social Care Bill that he must exercise so as to secure that services are provided for the purposes of promoting a comprehensive health service in accordance with the National Health Service Act 2006;

9.2 any changes in rights and/or entitlement to health services for people in England that will result from enactment of the Health and Social Care Bill in its current form;

9.3 any guarantee he can give that, following changes proposed in the Health and Social Care Bill, the full list of priority health services identified and listed in the National Health Service Act 2006 will continue to be provided, and also that these will be provided as a right and/or entitlement equally across the whole of England.

10. Further, we think the Secretary of State should make a statement, confirming that:

10.1 the latest version of the Health and Social Care Bill, if enacted in its current form, still gives 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.

11. We ask the Public Bill Committee to use what influence you have to require the government and Secretary of State to give a full and comprehensive statement on these crucial matters.

D) Legal questions arising

 

12. The following text sets out our questions arising from initial reading of the revised Health and Social Care Bill (published Thursday 23 June, 2011)

E) Under the terms of the revised Health and Social Care Bill, what duties are placed on, or removed from, the Secretary of State? 

 

13. Since 1946, when the NHS was established, there has been a legal duty on the State to provide or secure provision of medical services. The Coalition Government’s Health and Social Care Bill – even in its revised form – would remove this duty. The Secretary of State will now have certain "functions" established by the Bill. But without detailed legal scrutiny, it is not clear if these would guarantee the continuation of certain duties and services, and also for those duties and services to apply or be provided throughout England, without geographical variation. We therefore pose the following questions and urge the Public Bill Committee and parliamentary representatives to scrutinise the revised Health and Social Care Bill on this basis:

13.1 What are the functions that are conferred on the Secretary of State in the Health and Social Care Bill that he must exercise so as to secure that services are provided for the purposes of promoting a comprehensive health service in accordance with the National Health Service Act 2006?

13.2 Is there any provision in the Health and Social Care Bill that places a duty to provide health services in England on any public or private body? We think there is not.

13.3 Is there any guarantee that services and facilities for prevention of illness, people who are ill, and ongoing healthcare for those leaving hospital will continue to be provided as part of the public health service, and also that those services will be provided equally throughout England, without geographical variation? The Secretary of State currently has a duty to provide or secure provision of these services, and they are specified in the NHS Act 2006, but these do not appear explicitly in the revised Health and Social Care Bill, published 23/06/2011, neither as a duty for the Secretary of State, nor for the commissioning consortia.

13.4 Is there any guarantee that services and facilities for the care of pregnant women, breastfeeding women, and young children, will continue to be provided as a part of the public health service, and also that provision of these services will continue to be provided equally throughout England, without geographical variation? The Secretary of State currently has a duty to provide or secure provision of these services, specified in the NHS Act 2006, but these do not appear explicitly in the revised Health and Social Care Bill, published 23/06/2011, neither as a duty for the Secretary of State, nor for the commissioning consortia.

13.5 Which parts of the Health and Social Care Bill impose duties or confer powers on elected individuals or bodies to provide or to secure provision of health services in England?

13.6 Which elected person or organisation would, under the terms of the Health and Social Care Bill, determine those services that must be arranged by the commissioning consortia (under section 3(1) of the Health and Social Care Bill), such as hospitals, doctors, nurses and ambulances?

13.7 What are the reasons why section 1(2) of the National Health Service Act 2006, which requires him to provide or secure provision of health services, needs to be amended by the Health and Social Care Bill?

13.8 Why won’t the Secretary of State simply retain the "duty to provide or secure provision of health care services" placed on him by the 1946 National Health Service Act, in sections 1(2) and 3(1) of the NHS Act 2006?

F) Under the terms of the revised Health and Social Care Bill, what changes are there in the rights and/or entitlement to healthcare services for people in England? 

 

14. We think it remains unclear exactly how the Health and Social Care Bill will affect the rights and/or entitlement to healthcare services for people in England. This may have implications for the level of service provided; the range of services provided; what commissioning consortia consider to be the priority for service provision; and potentially whether or not people could be means-tested or charged a fee for health services in future. We therefore ask:

14.1 What changes in rights and/or entitlement to health services for people in England will result from enactment of the Health and Social Care Bill?

14.2 What guarantee is there that, following changes proposed in the Health and Social Care Bill, the full list of priority health services identified and listed in the National Health Service Act 2006 will continue to be provided as a right and/or entitlement equally across the whole of England?

14.3 What powers in the Health and Social Care Bill affect the right and/or entitlement of people in England to receive health services?

14.4 Which services, in light of section 1(3) of the National Health Service Act 2006, and the subsequent amendments proposed in the Health and Social Care Bill, will not be provided as part of the National Health Service in England?

14.5 How – in precise legal terms – does the Health and Social Care Bill protect current and future recipients of health services in England from means testing with regard to the health services they receive?

14.6 How – in precise legal terms – does the Health and Social Care Bill protect current and future recipients of health services in England from being charged a fee for the health services they receive?

G) Under the terms of the revised Health and Social Care Bill, what are the duties of the commissioning consortia? 

 

15. One of the main provisions of the Health and Social Care Bill is the establishment of commissioning consortia. Many questions remain regarding their duties. Note that we mean the precise legal term "duty" and not the less precise term "accountability" or "transparency". Accountability and transparency are both very important, but a proper, legally enforceable "duty" lays the foundation stone on which accountability and transparency can be built. We therefore pose the following questions and urge the Public Bill Committee and parliamentary representatives to scrutinise the revised Health and Social Care Bill on this basis:

15.1 Why has a "duty to provide or secure provision of healthcare services" not been placed on commissioning consortia, including medical services, nursing services and ambulances?

15.2 What provisions are there in the Health and Social Care Bill to prevent commissioning consortia deciding that health services and facilities – such as for the care of pregnant women, or the provision of ambulances – are not a priority?

15.3 What provisions in the Health and Social Care Bill allow for limitations to be placed on universal rights and/or entitlement to health services? Could a commissioning consortium decide, for example, that certain types of health service will not be provided?

15.4 Under the new arrangements proposed in the Health and Social Care Bill for health services in England, will it be possible for a private healthcare provider to become a commissioning consortium? (And as a supplementary question, could that private healthcare provider be from outside the UK, including the US?)

June 2011

Prepared 30th June 2011