Health and Social Care Bill

Memorandum submitted by the Specialised Healthcare Alliance (HSR 16)

1. The Specialised Healthcare Alliance (SHCA) is a coalition of 68 patient-related organisations supported by 10 corporate members which campaigns on behalf of people with rare and complex conditions requiring specialised care. Examples are numerous but include certain cancers, cystic fibrosis, eating disorders, haemophilia, neurological conditions and a wide range of services for children. Accidents or complications of more common conditions can also trigger the need for specialised services such as burns, pain management and spinal injuries.

Executive Summary

2. There are four main issues that the Alliance wishes to draw to the attention of the Public Bill Committee:

a) Accountability of the NHS Commissioning Board (NHSCB)

The Alliance welcomes the new duty placed on the Secretary of State to keep the NHSCB under review regarding the carrying out of its functions. However, the Alliance is seeking clarification around how these ‘functions’ will be defined and how this review will fit with the current requirement on the Secretary of State to assess the NHSCB’s performance. The Alliance is also keen to understand whether guidance issued to CCGs will also apply to the NHSCB in relation to its direct commissioning functions.

b) Integration between NHSCB and clinical commissioning groups (CCGs)

The SHCA is seeking clarification regarding how the sub-national structure of the NHSCB will ensure that specialised and local commissioners can work together to deliver an integrated service for patients. In particular, the Alliance considers that the proposal to have four SHA clusters as a precursor to four sub-national offices of the Board is insufficient in number to reflect provider geography and patient flows in specialised care.

c) Patient and public involvement

The Alliance welcomes the strengthening of the duties and requirements on the NHSCB regarding patient and public involvement. However, the Alliance would like clarification concerning any guidance which will be given to the NHSCB on patient and public involvement in the discharge of its direct commissioning functions.

d) Competition and failure regime for providers

The Alliance attaches great importance to the designation of specialised providers, as set out in the Carter Report on specialised commissioning in 2006. This ensures adequate patient volumes to sustain requisite levels of clinical expertise to deliver high quality, safe services – a key lesson of the Bristol Inquiry. The Alliance is therefore seeking clarification that Monitor’s newly defined duty and functions will not prevent the designation of providers of specialised services. More information is also required on the system which will be put in place to protect essential services in the event of provider failure.

a) Accountability of the NHS Commissioning Board (NHSCB)

3. The Alliance welcomes new clause 1 which clarifies that the Secretary of State will retain accountability for securing the provision of services. The Alliance understands that the Secretary of State will not secure services directly, but do so through exercising his functions in relation to the NHS bodies, which will include setting the mandate to the NHSCB.

4. The mandate to the NHSCB will set out those services that the Secretary of State expects the NHSCB to commission directly, including specialised services for smaller patient populations. The Alliance therefore welcomes this clarification that ultimate responsibility for securing the provision of specialised services will rest with the Secretary of State.

5. The Alliance also welcomes the new duty placed on the Secretary of State (new clause 2) to oversee and hold to account the national bodies, including the NHSCB.

6. New clause 2 states that the Secretary of State must ‘keep under review the effectiveness of the exercise’ by the national bodies ‘of functions in relation to the health service in England.’ The Alliance is seeking clarification regarding exactly how these functions will be defined (for example will they include the duties placed on the NHSCB in the Bill) and confirmation that, in relation to the NHSCB, the Secretary of State’s review will take into account the mandate to the NHSCB and the NHSCB’s annual business plan. The Alliance would also like to understand how this review process would relate to the current requirement on the Secretary of State to produce a letter, which is based on the NHSCB’s annual report and which assesses the Board’s performance.

7. New clause 2 also states that the Secretary of State ‘may’ include his review of the national bodies in his annual report. The SHCA believes instead that it should be a requirement on the Secretary of State to include his review of the national bodies in his annual report on the performance of the health service.

8. The SHCA notes that the NHSCB will be required to produce guidance to the CCGs on various topics, for example amendment 114 introduces a power for the NHSCB to issue guidance to CCGs on the discharge of their duty to obtain clinical advice. The Alliance is keen to learn whether this and other guidance issued to CCGs will also apply to the NHSCB in relation to its direct commissioning functions.

9. The Alliance notes the clarification of the Secretary of State’s powers of intervention, whereby they would only be used in the event of a ‘significant’ failure of the NHSCB to perform its functions (amendments 81-83). The Alliance welcomes the explanation in the government’s briefing notes on the amendments to the Bill that a significant failure would include failure by the NHSCB to commission a particular service that it was required to commission, which would include specialised services.

b) Integration between NHSCB and clinical commissioning groups (CCGs)

10. The Alliance welcomes the various amendments tabled by the government which aim to encourage integration, for example amendment 73 places a new duty to promote integration on the NHSCB.

11. The Alliance also welcomes the emphasis on networks and the introduction of clinical senates as a means to encourage integration and a broad range of clinical input in commissioning – both by the NHSCB and CCGs. It is essential that such arrangements provide for patient and public representation.

12. The Alliance notes, however, the lack of detail regarding how the commissioning functions of the NHSCB and CCGs will be integrated to ensure seamless patient pathways for those patients requiring both specialised and non-specialised services.

13. The Alliance recognises that the clustering of SHAs and PCTs will form the basis of a sub-national structure of the NHSCB. However, the Alliance is looking for clarification regarding how the sub-national structure of the NHSCB will ensure that specialised and local commissioners can work together to deliver an integrated service for patients. In particular, the Alliance considers that the proposal to have four SHA clusters as a precursor to four sub-national offices of the Board is insufficient in number to reflect provider geography and patient flows in specialised care.

14. At the same time, the Alliance stresses the need to guard against an overly complex structure, where various bodies’ responsibility for and involvement in commissioning decisions is unclear or differs across the country.

c) Patient and public involvement

15. The Alliance welcomes the intention of amendment 64, which requires the Secretary of State to consult HealthWatch England prior to publishing the mandate to the NHSCB.

16. The Alliance welcomes the requirement on the NHSCB to explain in its annual business plan how it proposes to discharge its public involvement duties (amendment 78). The SHCA also welcomes the introduction of a new duty on the NHSCB to ‘promote patient involvement of each patient’ (amendment 70). Amendment 111 places a similar duty on CCGs and gives the NHSCB the power to provide guidance to CCGs about the patient involvement duty. The Alliance would like clarification regarding any guidance which will be given to the NHSCB on patient and public involvement in the discharge of its direct commissioning functions.

17. Amendment 70 also introduces a ‘duty as to patient choice’ on the NHSCB. It is important to note that choice of provider for patients requiring specialised care may necessarily be limited (this is explored further in section d) below), but that the Alliance supports choice for these patients regarding other aspects of their care, for example choice of treatment.

d) Competition and failure regime for providers

18. The SHCA has consistently highlighted the merits of the designation of providers of specialised services, as recommended in the Carter Report on specialised services (2006). Designation allows commissioners periodically to designate a certain number of providers for a particular service based on a nationally agreed set of patient-centred, clinical, service, quality and financial criteria. The Alliance supports the Carter Report’s view that designation of specialised providers helps to secure an appropriate concentration of clinical expertise and activity to safeguard patient access to high-quality, cost-effective services located to maximise geographical convenience.

19. The Alliance was therefore concerned that Monitor’s original duty to ‘promote competition’ would have prevented the designation of providers of specialised services. As such, the Alliance welcomes the re-casting of Monitor’s main duty, in particular the requirement it places on Monitor to ensure quality in the provision of services (amendment 148).

20. However, questions remain, which mean that the Alliance is still concerned that in certain cases, Monitor could seek to prevent the designation of providers of specialised services. For example, how will Monitor balance the two parts of its main duty (promoting provision of health care services which is both ‘economic, efficient and effective’ and which ‘maintains or improves the quality of the services’)? In addition, how should ‘the interests of people’ who use services be defined in the new requirement on Monitor to prevent anti-competitive behaviour in the provision of services which is ‘against the interests of people who use such services’ (amendment 149)? Finally, what would happen in the case of a conflict between the requirements on Monitor to prevent anti-competitive behaviour and to enable health care services to be provided in an integrated way (amendment 149)?

21. The Alliance is therefore seeking clarification that Monitor’s newly defined duty and functions will not prevent the designation of providers of specialised services.

22. The Alliance notes that the government’s response to the NHS Future Forum report suggests that the NHSCB, in consultation with Monitor, will set out guidance on how choice and competition should be applied to particular services (paragraph 5.20). The Alliance is looking for clarification that this guidance would include specialised services and would take into account the principles of designation.

23. The Alliance notes the government’s decision to withdraw their proposal for certain ‘essential’ services to be ‘designated’ to ensure their continued provision in the event of provider failure (NB. this is a different definition of designation from that set out by Carter). The SHCA recognised that such designated services were likely to include a reasonable number of specialised services. The Alliance is therefore seeking clarification regarding the system which will be put in place to protect essential services in the event of provider failure.

June 2011