Health and Social Care Bill

Memorandum submitted by the British Medical Association (HSR 09)

The British Medical Association (BMA) is an independent trade union and voluntary professional association which represents doctors from all branches of medicine all over the UK. It has a total membership of over 145,000.


1. The Government has announced significant revisions to the Health and Social Care Bill (the Bill), many of which address, to varying degrees, concerns raised by the BMA. A key concern was that that some potentially positive elements of the reforms - giving clinicians greater responsibility for commissioning and shaping local health services, increasing public and patient involvement, and putting a greater focus on improving public health - were threatened by other aspects, particularly those that sought to increase and enforce competition.

2. We also expressed concern about the significant gaps in the Bill which needed to be addressed to ensure proper accountability, to prevent unacceptable variation and to ensure appropriate national oversight of key issues such as education, training and workforce.

3. We therefore believe that we are now looking at a significantly amended Bill, which puts the reforms on a better track. In undertaking the listening exercise, the Government has recognised the need to think and plan in much greater detail. However, there are areas in which there remains much to do to ensure that the proposals work practically and adequately engage clinicians and patients locally.

4. It is important to state that we have not yet had the opportunity to study the Government’s amendments in detail. The report of the Future Forum, the Government’s response and the proposed amendments to the Bill will be discussed and debated at the BMA’s Annual Representative Meeting this week (28 June 2011). This written evidence therefore presents only an initial analysis.

Duties of Secretary of State

5. The BMA notes that the Bill will now ensure that the Secretary of State for Health will retain an overall responsibility to guarantee the provision of a comprehensive health service, whilst providing a degree of operational independence for the delivery of health care (Clause 1).

6. The Secretary of State could still have an inappropriate influence over the Board given that the arrangements for appointments (Schedule 1) remain the same. The Secretary of State will appoint the chair and five other members and will appoint the Board’s first chief executive. We believe the Bill should require further safeguards and transparency requirements relating to how the Board is to be established and the power of the Secretary of State over the Board, to avoid too much central control. There should be an independent appointments process for the Chair, the Chief Executive and non-executive members of the Board consistent with Nolan principles.

NHS Commissioning Board

7. The Government’s amendments make it clear that the Secretary of State’s mandate to the Board is a multi-year document (Clause 19 (1) 13A (2)). We also note the additional limitations on the Secretary of State’s powers over the Board by ensuring that he may only divest the Board of any of its functions in the case of significant failure and must publish the reasons for doing so (Clause 19 (1) 13W).

8. The BMA remains concerned that the Board could intervene excessively in clinical commissioning groups and undermine the intention to give clinicians and local communities a greater say in shaping their local healthcare services. The power of the Board in areas such as the approval of clinical commissioning group applications, constitutions and variations to constitutions has not been addressed (Clause 21 14). There must be careful development and application of regulations to ensure the use of fair and transparent procedures, so that the Board cannot misuse its powers.

Clinical commissioning groups

9. The BMA is reassured that the duty on clinical commissioning groups to secure professional advice from a full range of health professionals has been strengthened (Clause 22 14O). We believe this will ensure there is much better engagement of secondary care, public health and academic doctors in commissioning.

10. Clinical commissioning groups will now have a duty to promote the involvement of patients, carers and representatives in decisions about health services and their care (Clause 22 14NA) and patient choice (Clause 22 14NB). The BMA supports shared decision-making between patients and doctors and believes that some of the best healthcare outcomes can be achieved when patients have an understanding of their care, and are able to actively participate in the decision-making process. We therefore welcome this increased emphasis on patient involvement and choice. However, it is important that this does not lead to burgeoning bureaucracy.

11. We also welcome the new duty for commissioning groups to have regard to the need to promote research and the use of evidence obtained from research (Clause 22 14OB). This duty will help to embed research and evidence-based healthcare as key components of the health service.

12. We note the extent of powers relating to commissioning groups that may be exercised through regulations. Although the use of regulations offers a degree of flexibility over the development of arrangements and future amendments, the regulatory powers proposed appear to be very wide, for instance in setting rules as to the creation and operation of governing bodies. For example, amendment 45, which inserts new Clause 21 14JC, provides for regulations to make provision as to how members of the governing bodies of consortia are to be appointed and to make ‘such other provision about the procedure of governing bodies’ as the Secretary of State considers appropriate. We seek an assurance that the Government will consult appropriate stakeholders in the development of these regulations and any future guidance.

13. The BMA notes the Government’s intention to widen clinical networks, cover ing areas of specialist care. Clinical senates will also be introduced and will take an overview of health and healthcare for local populations and provide a source of expert support and advice on how different services fit together to provide the best overall care and outcomes for patients. [1] Both these bodies will be hosted by the NHS Commissioning Board. The BMA believes clinical networks and clinical senates should be hosted by clinical commissioning groups, rather than the Board , which would help to ensure that they operate as supportive bodies that help enhance commissioning and do not create more bureaucracy.

Quality premium

14. We note that the Government has acknowledged our very grave concerns about the quality premium (Clause 23). There is a strong objection in principle to the concept of financial incentives other than those already in place under the GP contract, particularly if those incentives are linked to any initiative designed to save money while reducing patient choice or care options. Although the focus is now clearly on quality, much of the detail is to be in regulations, including in particular how any payment to commissioning consortia can be used. We expect to work closely with the Government on the detail of the regulations to ensure that any potential conflicts of interests are addressed so that the doctor-patient relationship is not adversely affected.

Competition, choice and role of Monitor

15. The BMA is satisfied with the removal of Monitor’s duty to promote competition and the inclusion of a new duty to instead promote patients’ interests and support the delivery of integrated care where this would improve quality of care or efficiency (Clause 56).

16. We believe the measures to narrow Monitor’s powers over anti-competitive behaviour (Clauses 56 & 67) are acceptable. In areas where it has been agreed that choice and competition are appropriate, there need to be rules to prevent anti-competitive behaviour. These are currently exercised by the Office of Fair Trading (OFT) and we believe it is more appropriate for those powers to be exercised by an exclusive health regulator. If, as it appears, Monitor’s role will be to exercise the functions of the OFT in those areas where choice and competition have been accepted as appropriate, this is a satisfactory dilution of Monitor’s role.

17. The BMA notes the Government’s proposal that NHS Commissioning Board, in consultation with Monitor, will set out guidance on how choice and competition should be applied to particular services, guided by the mandate set by Ministers. [2] We expect to see this confirmed in legislation in due course. We note the Government’s intention to introduce further measure to rule out price competition and to introduce safeguards against cherry-picking. [3] Whilst we acknowledge the move towards explicitly trying to limit the extent to which unfair competition operates in the NHS and to preventing cherry-picking, much will depend on how these measures operate in practice.


18. The BMA is satisfied with the changes to the Bill to remove the absolute deadline for abolishing NHS trusts (Clause 176). We believe that this is necessary to ensure that patient safety is not compromised.

19. Commissioning consortia (now to be called clinical commissioning groups) are to be established by April 2013 but, where they are not ready to take on all their responsibilities, the NHS Commissioning Board will commission services on their behalf until they are ready to do so. It is vital that there is an agreed timetable and support programme for responsibilities to be transferred to consortia which do not make the 1 April 2013 milestone, so that the NHS Commissioning Board does not keep its additional powers any longer than is absolutely necessary. [4]

Education and training and workforce

20. The BMA welcomes the Government’s acknowledgment that the impact of the reforms on medical education and training has not been sufficiently thought through. However, there is much to do now. Although the position of deaneries in the transition period has been addressed, there needs to be further, urgent action to prevent their implosion through uncertainty over their long-term future.

21. We are disappointed that the Government has not brought forward any amendments at this stage on education and training. In its response to the Future Forum the Government announced its intention to introduce an explicit duty for the Secretary of State to maintain a system for professional education and training as part of the comprehensive health service. [5] We call on the Government to give an undertaking to introduce this duty either while the Bill is in Public Bill Committee or at Report Stage.

22. Local employers lack a broad overview of medical workforce requirements, particularly given that the length of specialist training can be as much as 10-15 years following graduation. The management, planning and oversight of the medical workforce can only be done at national, and more properly, at a UK level.

Failure regime and regulation

23. The Government has said that an effective failure regime will be developed to support recovery and prevent failure before it happens. [6] We are pleased that our concern about the need for a clearer failure regime that protects the interests of patients and the public has been acknowledged. We understand that the Government intends to bring forward amendments at Report Stage. We hope that the Government will use the intervening months to engage in constructive dialogue with the BMA to design a comprehensive failure regime. This should be aimed at ensuring problems are identified early on and support put in place to try to prevent failure.

24. The BMA supports the Care Quality Commission (CQC) regulating all healthcare providers, as long as the CQC is empowered and has the resources to perform its duties properly. The Bill explicitly requires Monitor and the CQC to cooperate in operating their separate regimes (Clause 281), yet each will be able to take enforcement action independently of the other. The precise relationship between the two regulators remains unclear. The increased regulator burden and the lack of operational clarity make it difficult to see how this will work for the benefit of patients and a more efficient and effective health service. This needs to be clarified in the Bill.

Public health

25. The BMA notes the announcement that Public Health England (PHE) will be established as an executive agency of the Department of Health. Whilst this represents a shift towards greater autonomy, we believe that ideally, PHE should be a special health authority. We await further details of reforms to public health in the Government’s response to the Public Health White Paper.

26. In the meantime, it is vital that public health is supported during this period of transition and cuts, not least because many public health specialists have the expertise in population medicine which can help make real savings without damaging frontline services. The Bill should clearly state what should be covered within the ring-fenced budget being given to local authorities. The independence of Directors of Public Health as professionals treating a population must also be protected in legislation.

Any qualified provider

27. We remain concerned about the introduction of the Any Qualified Provider policy, despite the fact that this will be done in a more phased and limited way. [7] This still has the potential to destabilise key services and its impact must be closely monitored. We seek further explanation about how providers will demonstrate that they are ‘qualified’ and how quality for patients will be maintained.


28. We note the Government’s intention to introduce safeguards against privatisation through ensuring that the Ministers, the Board and Monitor must not, as part of their functions, set out to vary the proportion of services delivered by providers due to their status, i.e. public or private sector (amendments 22, 100 and 177). This is intended to create a level playing field between providers and to proof against attempts to purposefully increase the share of the private sector in the future.

Private income cap

29. Although this issue is not to be considered at the re-committal stage, we hope that there will further discussion at future stages. The BMA believes the abolition of the cap on the amount of income foundation trusts can earn from other sources (Clause 162) has the potential to act as an incentive for foundation trusts to undertake more non-NHS activity at the expense of NHS patients’ ability to access services. If unfettered, this could lead to a two-tier health service, as foundation trusts invest more resources in non-NHS facilities.

30. The case against the existence of the cap has not in our view been made, however the basis for calculating the cap could be re-examined. Were this to lead to a change in the current arrangements, this should not, as stated above, be at the expense of NHS patients’ ability to access services. Conducting this exercise via the legislative process is inappropriate.

Information and confidentiality

31. We welcome the Government’s acknowledgment of our serious concerns that the provisions in the Bill in relation to the Information Centre and patient identifiable information are too broad, and note that the Government will consider further how to amend the Bill to protect patient confidentiality. [8] We understand that amendments to information provisions in the Bill will be brought forward at Report Stage. We recognise the intention to consider how to further amend the Bill to protect patient confidentiality and expect to continue to engage with the Government on this issue.

June 2011

[1] Government response to the NHS Future Forum report, June 2011, Paragraph 3.18

[2] Government response to the NHS Future Forum report, June 2011, Paragraph 5.20

[3] Government response to the NHS Future Forum report, June 2011, Paragraph 5.5

[4] Government response to the NHS Future Forum report, June 2011, Paragraph 7.5

[5] Government response to the NHS Future Forum report, June 2011, Paragraph 6.1

[6] Government response to the NHS Future Forum report, June 2011, Paragraph 5.45

[7] Government response to the NHS Future Forum report, June 2011, Paragraph 5.25

[8] Government response to the NHS Future Forum report, June 2011, Paragraph 4.52

Prepared 30th June 2011