Health and Social Care Bill

Memorandum submitted Royal College of Nursing (HSR 12)


With a membership of over 410,000 registered nurses, midwives, health visitors, nursing students, health care assistants and nurse cadets, the Royal College of Nursing (RCN) is the voice of nursing across the UK and the largest professional union of nursing staff in the world. RCN members work in a variety of hospital and community settings in the NHS and the independent sector. The RCN promotes patient and nursing interests on a wide range of issues by working closely with the Government, the UK parliaments and other national and European political institutions, trade unions, professional bodies and voluntary organisations.

The RCN welcomes the opportunity to submit evidence to the Health and Social Care Bill Committee.

The decision to use the end of the previous Committee stage of the Health and Social Care Bill to take stock of how the legislation had been received and to listen to ideas that will help it evolve was welcomed by the RCN membership. The RCN engaged fully in the debates during the "pause" and hosted a number of listening events, the first of which took place at our annual Congress in Liverpool.

The RCN has welcomed a number of the recommendations of the NHS Future Forum and those contained within the Government’s response to their report. The Government has listened to the concerns that the RCN and others have raised about the need to promote integrated care throughout the NHS and we hope that nurses will have a key role in implementing this vision.

However, given the timeframe between the new Government amendments being laid and the Bill Committee reconvening, the RCN is using this submission to provide broad commentary of the proposals. We look forward to working with the committee on specific amendments as they are discussed over the coming weeks.

The RCN has consistently called for the Bill to ensure that:

· care is not fragmented, leading to inequalities in provision and an inability for clinicians and health providers to collaborate

· the quality of patient care is not detrimentally affected by forced price competition

· nurses are represented at every level of the commissioning process

· nationally agreed pay, terms and conditions are not threatened by moves to localised pay structures and negotiating.

T he RCN has welcomed the general premise of the Bill to place patients at the centre of care; to reduce inefficiency in the NHS; to involve clinicians in the commissioning of services; and to improve standards across all aspects of the health service. However, the RCN has repeatedly expressed major reservations that the policies set out in the Bill will actually deliver on these underlying principles.

There is also a concern that implementing these changes now, at a time of financial constraint within the NHS and during a £20bn efficiency drive, will add to the burden of an already overworked workforce and service. The RCN ’s Frontline First campaign has already found that almost 40,000 posts have been earmarked for removal from the NHS. This dual challenge of reform and efficiency savings could result in adverse affects on the quality of care.

Nursing Leadership and Commissioning

Nurses have previously fought hard to ensure that they are represented at director level and by the Chief Nursing Officer in England at the Department of Health. Nurses that sit on Primary Care Trusts, Strategic Health Authorities and provider organisation boards provide an invaluable insight into the practical issues of service delivery, including advice on value for money, efficient practice, and effective and quality care provision. They have a pivotal role in being able to stand back and view the whole care pathway, take a holistic perspective to look above the day to day clinical issues and effectively support commissioners in the decision making process.

The RCN has continually stated that for the Bill’s reforms to succeed, nurses must be represented within its framework for commissioning via the statutory recognition of nurse representation at a local and national level. The RCN is therefore pleased to see that that this has been recognised by the Government with a commitment to have a nurse represented on the National Commissioning Board and that each Clinical Commissioning Group (CCG) must have at least one registered nurse as part of their governing body.

As the commitment to have a registered nurse on CCG boards is not explicit on the face of the Bill, the RCN will be seeking clarification that this important measure is enshrined in secondary legislation.

The RCN looks forward to working with Parliamentarians and the Department of Health on the regulations and guidance relating to these roles. A particular area of concern that may arise from the Government proposals is associated with conflict of interest for nurses and we look forward to discussing this further as the Bill progresses.

Quality and Competition

The RCN was pleased to see that following the House of Commons committee stage the Bill was amended to remove reference of setting a maximum national tariff. This was seen as one of the potential dangers of the promotion of price competition for NHS services.

We were also concerned that the Bill, as it stood, appeared to enforce competition at the expense of collaborative working. We are concerned that this could make it harder for GPs and nursing staff, as part of a multi-disciplinary team with responsibility for commissioning care, to work with colleagues in hospital and community settings to create the integrated care pathways that patients want and need, and that support the delivery of safe and cost-effective services.

Lessons from previous NHS failures, where the focus upon quality care was lost, must be learnt and applied to any future reform. Quality of care and patient safety depend upon safe staffing levels and a climate of openness and transparency.

The RCN also welcomes amendments, made in the previous stage of the Bill’s passage, which removed the direct instruction to the NHS Commissioning Board to promote competition. As with the wording in clauses relating to the tariff, there is substantial evidence that promoting competition based upon price can severely damage the quality and safety of service provision. The Government has now stated that it does not intend competition to be based upon price; however, it is vital that sufficient safeguards and regulations are put in place to ensure that the use of competition, where clinically supported, does not compromise service safety or quality.

The RCN is currently examining the amendments laid last week to see if they have addressed our concerns around Any Qualified Provider (AQF). We remain concerned that local prices may be pushed below the threshold where providers are able to deliver safe and quality services.

The RCN hopes that the Government amendments take into account the issue of promoting and ensuring quality of service rather purely focusing on price. We maintain our position that clauses within the Bill, as previously presented, that made provision for a competition based structure with the emphasis solely on price, must be amended to enshrine quality and safety of service as the primary concerns for commissioners.

In order to improve and maintain standards it is essential that the tariff moves towards a system that rewards and incentivises improvements in the quality of care patients receive. The RCN maintains its position that the tariff must remain sufficient to adequately allocate nursing resources, and that any changes are made only on the principle that they do not incentivise any reductions in nursing input which would threaten patient safety.

The RCN still believes that there is a need for careful scrutiny on the role competition will play within the new NHS and address the potential that quality of care will become of secondary consequence. The impact of competition and the any willing provider model crucially depends on how the market works in practice. The RCN supports a ‘counterbalancing’ role for the CQC and Monitor within the NHS as part of a robust and effective system of checks and balances ensuring co-operation across care pathways as well as ensuring that high quality patient outcomes are rewarded.

Accountability and the Role of the Secretary of State

The RCN welcomes the Government’s statement that the Bill, when amended, will revert to the situation under previous legislation and stipulate the Secretary of State’s responsibility to promote a comprehensive health service. We are also pleased to see that Ministers will have responsibility to hold national commissioning bodies and the regulators to account and will have the power to intervene to avoid failure. The RCN does, however, believe that further detail must be published in regard to the framework of clinical commissioning groups.

It is important that the amended legislation demonstrates a clear mechanism by which taxpayers can hold ministers as well as those responsible for commissioning, delivering and overseeing care, accountable for NHS funded services. We believe that the concessions made by the Government will go some way in addressing this.

The RCN has consistently made representations to government calling for the accountability framework within the proposed reforms to be clarified and made robust at every level, from individual local commissioning groups up to, and including, the Secretary of State.

The RCN remains concerned about the potential increase in health inequalities via the structural formalisation of ‘postcode lotteries’. As the proposed reforms move the NHS to being a much more locally centred, potentially less collaborative system, the RCN is worried that a more fragmented approach to commissioning of services may arise, increasing the potential for local decisions on service availability to differ from CCG to CCG.

The RCN believes that the NHS is currently well placed to take a strategic overview of health inequalities and identify need across a wide area. The RCN has concerns that the proposals as they stand will remove this strategic oversight capacity.

National Pay

NHS staff pay, terms and conditions are currently negotiated through a national negotiating structure (the NHS Staff Council).  Annual uplifts to pay are determined by the NHS Pay Review Body.  The current NHS pay system is underpinned by a comprehensive job evaluation framework, knowledge and skills framework, and a national pay scale (Agenda for Change). This structure is a fair and effective arrangement, which ensures that NHS employers have in place a system that can protect them from the risks of an equal pay challenge. The current jointly negotiated arrangements are supported by NHS employers, NHS Trade Unions and NHS staff.

The Agenda for Change agreement does allow a number of local ‘freedoms’ for employers, particularly in the case of recruitment and retention payments. This includes the offer of alternative packages of benefits that are of equivalent value to the standard benefits set out in the agreement. The RCN has concerns that in addition to the removal of the two tier code, the provisions to encourage local Clinical Commissioning Groups and Foundation Trusts to enter local pay bargaining will break down this agreement, resulting in fragmented, inconsistent systems, which would be costly to develop and result in industrial unrest.

The implications of the Bill for NHS staff terms and conditions and employment relations are substantial.  The encouragement of NHS organisations and particularly Foundation Trusts in England, to determine their own pay and reward structures (outside of the freedoms negotiated in Agenda for Change) will be highly damaging to recruitment, retention and morale and lead to equal pay problems across the NHS. 

It would also lead to the ratcheting up or down of pay rates, with NHS organisations competing against each other for staff. While Agenda for Change delivers an equality-proofed pay and grading scheme, the development of a plethora of local schemes could undermine the stability produced by the current system, leading to a surge of equal pay litigation cases and a challenge to workplace relations.  It would also have a knock on impact on pay negotiation in the devolved administrations.

With regard to NHS pensions, the RCN has submitted evidence to Lord Hutton’s review on Public Sector Pensions. We have also submitted a response to the Fair Deal consultation and argued for allowing access to public service pension schemes for those who deliver NHS funded services. This view is consistent with the view of the NHS Pension Scheme Governance Group.

The RCN welcomes the reference within the Bill to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), and firmly believes this must be upheld. The RCN, alongside staff side colleagues, will continue to work with employers to guarantee fair terms and conditions for NHS staff being transferred. 

Private income cap

The RCN cannot support the removal of the private income cap as proposed by the Bill, and wish to see Clause 162, removed from the Bill.

We believe that the current arrangements for the cap should remain in place, as there has not been sufficient analysis to justify the proposed change in this area.

Further to this, we will not support any change in private income policy until the Government is able to provide assurances that doing so will not impact unduly on the care provided to NHS patients

Bonus payments

The RCN remains concerned that sections of the Bill still make provision for the National Commissioning Board to offer bonus payments to CCGs following a period of perceived good performance. The RCN believes that in a period of financial constraint where frontline staff are facing increasing pressures due to budgetary cuts, all additional monies must be earmarked for reinvestment into services, not as bonus payments. The RCN believes that the wording in the Bill must be amended to ensure that all surplus monies within the NHS budget are reinvested back into frontline services.

Public Involvement

Since the publication of the NHS White Paper , the Government has repeated the mantra of placing patients at the centre of care . H owever , the RCN does not believe this has been a consistent message through out the Bill . For example, there was no requirement for the NHS Commissioning Board , CCGs or Health W atch England (which will replace the current Local Involvement Networks), to have a public representative.

The RCN is therefore glad to see that the recent Government proposals make reference to ensuring that there are ‘clearer duties across the system to involve the public, patients and carers’. The RCN welcomes moves to ensure that CCG boards will have lay members and be required to meet in public alongside a range of other moves to ensure greater transparency and public involvement across a number of the new bodies.

We look forward to working with Parliamentarians and the Department of Health to make sure the new proposals and amendments give greater strength to the patient voice in the new health landscape.

Education and training

The RCN submitted a response to the Department of Health’s ‘Liberating the NHS: developing the healthcare workforce’ consultation earlier this year. In that response, we highlighted concerns about the lack of detail in the Bill or other draft legislation about the education and training of nurses.

The RCN believes that the proposed Health Education England (HEE) could be a mechanism for truly developing inter-disciplinary education. However, the membership of this group needs to be representative. The RCN is concerned that as currently conceived, it is likely to be dominated by the medical deaneries. The Professional Advisory Bodies for nursing and midwifery and the professions allied to health must be strengthened to ensure the voice of nurses, the specialists and small professions is heard. We also recommend that the voice of Band 1–4 colleagues needs to be appropriately represented on this group.

An NHS Commissioning Board to provide oversight of funding plans for training, working in tandem with the new proposed Centre for Workforce Intelligence, is welcomed. However, the RCN has concerns about clinical commissioning groups and the local skills networks overseeing training at a local level. We see the potential for local skills networks to deliver a more comprehensive review of local requirements for healthcare education, but this will rely, in part, on having appropriate clinical leadership within the decision making process. However, we are uncertain that this objective may be achieved universally. We look forward to receiving further detail from the Government about the composition of the local skills networks and how they will work.

The RCN accepts that there is a legitimate role for employers in workforce education and training. Nonetheless, we believe it is essential that there is national oversight of nursing education and the commissioning of nursing education to protect national standards and ensure that the future workforce is fit for purpose. The RCN believes that there is a need for a comprehensive workforce planning system and strategy, which covers all providers delivering NHS funded services. If workforce planning is delegated solely to local organisations (who do not have experience of undertaking this role or the resources to develop the necessary structures and skills) there is a risk that, in the future, there will not be an appropriately trained multi-professional workforce to meet the needs of the population.

The RCN has concerns about employers being solely responsible for decisions on ongoing workforce education and training. Experience has shown that when there is pressure on finances, training is the first budget to be cut. The RCN recommends that employers should not limit their training and workforce plans to mandatory training. Any plans should be supported by an assessment of workforce and service needs and should identify the range of necessary training and workforce development needs, to skill up the workforce to meet current and future service demands, and that training become a protected element in financial plans.

The RCN would also like to see Continued Professional Development safeguarded to ensure that nursing staff continue to update their skills and are equipped to tackle the challenges of the future. These challenges include developing better ways to deliver care for older people and those with long term conditions. Without adequate investment in all parts of the nursing workforce, healthcare organisations will continue to struggle with staff shortages, poor skill mix, bed pressures, preventable morbidity and mortality, and poor provision of community health services.

We welcome the Government’s commitment in its response to the NHS Future Forum’s report to introduce a specific duty for the Secretary of State to maintain a system for professional education and training as part of the comprehensive health service. We also support the Government’s decision to ensure that there are effective arrangements put in place during and following the abolition of SHAs. However, the RCN is keen to work with the Government to help further develop and revise their plans for education and training in general to ensure that their proposals deliver a strong workforce fit for the future.

Abolition of Public Bodies

Abolition of Health Protection Agency

The Health Protection Agency (HPA) is to be abolished as a statutory organisation and its functions transferred as part of the new Public Health Service. Since the Government announced its intention to do this, the RCN has consistently called for further information about how the proposals would work in practice.

In its response to the NHS Future Forum report, the Government stated that it now intends to establish Public Health England as an Executive Agency of the Department of Health rather than as a core part of the Department itself. The Government believes that this will remove concerns raised by organisations regarding potential undermining of the independence of expert advice. The RCN welcomes the news that Public Health England will now be an Executive Agency. We believe that this will be a much better fit with the role of the HPA, which is largely service driven and customer facing, and concerned with providing independent advice to Government. We do, however, seek greater clarity on the nature of the "independence" from the Department of Health – we would like to understand how the relationship between the Department of Health and Public Health England will be managed and whether there will be any Department controls in relation to the running of the new Executive Agency.

In addition, the RCN continues to have concerns about the pay, terms and conditions package of Public Health England. We are currently being informed that the package available to Public Health England staff (other than those public health staff who are doctors) will be the Civil Service Terms and conditions package – yet over 80 per cent of transferring staff will be on NHS terms and conditions. We believe that a decision to pay Civil Service Terms and Conditions creates a significant barrier to future recruitment of healthcare staff and to developing new ways of working within Public Health England.

The RCN consulted with its members and set out its views on the abolition of the HPA in more detail in its response to the Government’s consultation on Healthy Lives, Healthy People: Our strategy for public health in England. For example, we called for further reassurances that the expertise that has been developed within the HPA will be retained and further clarification around how the UK-wide functions of the HPA will be transferred with regards to the devolved countries. The Government’s response to the NHS Future Forum did not cover these issues and we await further detail in their response to the consultation on the Public Health White Paper.

The RCN does, however, call for the HPA to continue to speak with staff regarding concerns around potential site closures, relocations and timetables for change.

The National Patient Safety Agency

The National Patient Safety Agency (NPSA) promotes patient safety and manages the National Clinical Assessment Service, the National Research Ethics Service and confidential enquiries. Clause 274 of the Health and Social Care Bill would see the NPSA abolished as an Arm’s Length Body and its safety functions to be retained and transferred to the NHS Commissioning Board. This Bill does not deal with the National Clinical Assessment Service and the National Research Ethics Service.

The RCN believes that the agency has a critical role in collecting data on patient safety problems, and identifying trends and patterns of avoidable incidents as well as supporting ongoing education and learning. For example, the National Reporting and Learning System (NRLS) enables patient safety incident reports to be submitted to a national database and the data is then analysed to identify risks and opportunities to improve the safety of patient care. Since the NRLS was established, over four million incident reports have been submitted by healthcare staff.

The RCN calls for reassurances that important safety functions, such as the NRLS, will continue to be sufficiently resourced and provided for at the same level. For example, the NRLS currently covers England and Wales and the NHS Commissioning Board, which will oversee it, will be England-only. This is particularly important as the NPSA is not funded to exist after the end of the current financial year and the RCN believes that the patient safety function is likely to become considerably smaller (most recent estimate 120 staff reduced to 40). This causes some concern regarding retention of expertise and a potential loss of "organisational memory" around quality and safety in the NHS.

The RCN also calls for the NPSA to engage in discussions with trades unions and staff about the impact the proposed changes will have, for example, regarding where services will be located going forward.

The NHS Institute for Innovation and Improvement

Clause 275 of the Bill provides for the abolition of the NHS Institute for Innovation and Improvement, which supports the NHS by spreading new ways of working, new technology and leadership. The Bill proposes to move the functions, which will support the NHS Commissioning Board in leading for quality improvement, to the Board. The Government will review the potential for its remaining functions to be delivered through alternative commercial delivery models, but this will not be dealt with by the Bill.

In the RCN's response to the NHS White Paper, the RCN stated that the decision to close the NHS Institute for Innovation appears to be a backward step given the strong focus on health promotion within the White Paper and associated consultation documents. The RCN remains concerned about how collaboration and the sharing of information, knowledge and best practice across an increasingly competitive health and social care market will be supported. We will be seeking assurances that this collaboration will continue.

Nation al Institute for Health and Clinical Excellence ( NICE )

RCN welcomes that NICE will have stronger role in the new NHS vision as outlined in the Government’s response to the NHS Future Forum report. We believe that it is the Department of Health’s principal advisory body. It does an important and sometimes unpopular job in fairly difficult circumstances, and is a widely respected organisation within the UK. Healthcare funding for medicines in England, as in other countries, is inevitably constrained by more pressing Government spending priorities. Demand has always been greater than available resources and priorities have to be determined fairly and transparently. NICE has demonstrated the ability to often respond positively to critical comments directed at the organisation and adapt to new challenges.

June 2011

Prepared 30th June 2011