Care Bill [Lords]

Supplementary written evidence submitted by the British Medical Association (CB 30)

House of Commons Committee Stage Briefing

Part 3 - Health

The British Medical Association (BMA) is an independent trade union and voluntary professional association which represents doctors and medical students from all branches of medicine all over the UK. With a membership of over 153,000, we promote the medical and allied sciences, seek to maintain the honour and interests of the medical profession and promote the achievement of high quality healthcare .


The BMA welcomed the publication of the Care Bill, recognising that reform of funding for social care and overhaul of the law underpinning care and support are long overdue. The Bill includes important changes for the health service, including a number of proposals following the inquiry into failings at Mid Staffordshire Foundation Trust. The Bill also establishes Health Education England (HEE) and the Health Research Authority (HRA) as non-departmental public bodies.

The BMA raised issues with some aspects of the Bill as it progressed through the House of Lords, particularly around long term workforce planning for HEE, and reviews and performance assessments for hospitals. Whilst we are encouraged by some of the responses the Government gave to a number of our concerns – particularly on education and training – we still feel that the legislation should be tightened to explicitly reflect assurances given.

During Report Stage in the House of Lords, the Government also introduced amendments to the powers of a Trust Special Administrator (TSA) as part of the failure regime process. These would enable the TSA to make changes in another local trust not involved in the failure regime. The BMA has concerns about the scope of these powers.

This briefing covers some of the key issues raised by Part 3 of the Bill. Areas of particular interest to the BMA include:

· Long term workforce planning

· Trust Special Administrator

  Part 3 Health

Long term workforce planning

National planning of the health care workforce

HEE’s responsibility for workforce planning must be strengthened in the legislation to mitigate against risks of oversupply of health care workers, as well as national or local shortfalls. HEE should be required to plan the health care workforce in accordance with national and local needs, whilst taking into account workforce needs in Wales, Scotland and Northern Ireland as the workforces heavily co-mingle. In doing so, the BMA believes that HEE must be required, as much as possible, to match the number of trained health care workers to national and local need over a long timeframe.

The Bill provides for "long term" workforce planning (Clause 98(5)), but the BMA believes that the length of time should be more explicit than the phrase "longer term". The maximum planned duration of post graduate training for a doctor is 10 years, and therefore an explicit term of planning similar to this is preferable.

HEE’s Strategic Intent document does include a commitment to ensure a strategic direction for a long term period of "10-15 years". The BMA is pleased with the Government and HEE’s stated intention in this regard, but in order to ensure that workforce planning takes a realistic shape in correlation with the changing demographic and service needs, we believe that this should be enshrined in legislation.

The Shape of Training Report [1] called for doctors to be trained in a shorter timeframe with a focus on obtaining more general skills. It recommended that significant elements of specialty training should be moved to post-training "credentials" that are outside of a formal training structure and are acquired according to local patient and workforce need. We understand the aim is to create a trained workforce that is more receptive to future demographic change. However, we are concerned that limiting the acquisition of highly specialised skills to local requirement will instead create a workforce that merely reacts to change rather than pre-empts it. We do not believe that wholesale change to the postgraduate medical training structure is required to create a more flexible workforce. Work is ongoing to identify transferable competences that will enable trainee doctors to change specialties more easily and therefore train more flexibly. Updates should be made to specialty curricula based on forecasts for workforce planning over a longer period to ensure that supply is matched to demand and curricula can be updated accordingly without expensive and unnecessary overhaul.

The BMA s upports amendment 162, specifically parts (4) and (5) which requires HEE to ensure that the number of skilled healthcare workers matches the health service needs. However we would like the intended meaning of ‘long-term’ to be set out in primary o r secondary legislation to prevent ambiguity.


Clause 100 sets out the bodies or persons that HEE both "must", under section (2), and "may", under section (3), seek advice from who are involved in or who otherwise have an interest in the provision of education and training for healthcare workers.

Two of HEE’s main functions are to bring together the interests of key groups to oversee the shape and development of the public health and health care workforce, and to ensure the delivery of excellent education [2] . Health care workers in training on the frontline are uniquely placed to determine whether the training they receive is sufficiently responsive to the changing needs of patients and local communities. For HEE to carry out its functions effectively, the BMA would like provision within the Bill to require HEE to consult health care workers who receive education and training, or representatives of those health care workers, in addition to those groups outlined in section (2).

The BMA supports amendment 166 which requires HEE to seek advice from professional bodies, royal colleges, trade unions, commissioners and patients’ groups.

Trust Special Administrator

During the later stages of the Bill’s progress through the House of Lords, the Government introduced a new clause (Clause 118) regarding the trust special administration process which occurs as part of the failure regime [3] . The new clause provides that a trust special administrator may decide to take action in relation to a failing NHS trust or foundation trust that has direct impact on another NHS or Foundation Trust. Essentially, a trust special administrator will be able to make changes to facilities and services in another nearby NHS or Foundation Trust as part of the remedy to address failures in the NHS or Foundation Trust being addressed.

The new clause extends the period for the administrator to produce their report from 45 to 65 days. However, there is no provision in the new clause that requires the administrator to consult with patients, public, clinicians, clinical commissioning groups (CCGs) or providers in the area of the other NHS or Foundation Trust. These powers could allow the Secretary of State to use the failure regime to bypass the reconfiguration process and redesign services in a particular area without any input from clinicians, commissioners or the public. The reconfiguration process involves a much more substantial consultation of stakeholders in an affected area and Clause 118 effectively bypasses this and follows a much lower standard of consultation in achieving redesign of services in nearby trusts. Failure to engage with key local stakeholders could have very serious, negative consequences for the proper planning of local healthcare services.

Clause 118 also introduces statutory oversight of CCGs and NHS Foundation Trusts directly to the Secretary of State. This means that these bodies will not have independence from ministerial interference if they, or a provider near them, enters the failure regime. This would undermine the role and ability of a CCG to shape services through commissioning, and may potentially not be able to protect commissioner requested services [4] where a Trust near to that CCG has entered the failure regime.

The clause as it stands could become an avenue for "backdoor" reconfiguration being allowed as part of the failure regime. This clause was introduced without full consultation and has significant implications, which have not been thought through. The Government has brought forward amendments to Clause 118 (amendments 135, 136, 137, 138) which extends the consultation provisions in the current failure regime to other provider trusts, their staff and commissioners affected by the TSA’s draft recommendations where they relate to other provider trusts. In 2012 the BMA outlined clear principles for reconfiguration [5] and we believe that the spirit of these principles should be reflected in clause 118. This is why we called on the Government to bring forward amendments to this effect, alongside the NHS Confederation, Foundation Trust Network, Royal College of Physicians and Academy of Medical Royal Colleges.

The BMA broadly views amendment s 135, 136, 137, 138 as steps in the right direction. The amendments extend the consultation process required to be undertaken by a Trust Special Administrator where their draft recommendations relate to another trust but we seek clarity and firm assurances from the Government on aspects of that process.

Transparency of consultation

Amendment 135 extends Section 65F in the NHS Act 2006 to ensure that commissioners in other trusts affected by the recommendations of the administrator are consulted in the same way as commissioners in the trust subject to the failure regime process. The BMA supports the principle of this amendment as it is essential that commissioners in areas affected are involved in the process.

However, we have some concerns about the transparency of the outcome of the consultation process. Amendment 135 is explicit that a commissioner in an affected trust is subject to the same procedures as a commissioner in the trust subject to the failure regime. Therefore, as set out in Section 65F(5) of the NHS Act 2006, for the administrator to provide the draft report to the regulator (the Secretary of State), they must obtain from each commissioner a statement that they consider the recommendation would achieve the object of the administration process as set out in Section 65DA of that Act. If the administrator cannot get a statement to that effect from one or more of the commissioners, NHS England must make a statement that they consider the recommendation meets the objective of the process. Where NHS England decides not to provide an administrator with a statement to that effect, they must give notice to the administrator and the regulator with the reasons for that decision. These must also be published and laid before parliament. If NHS England chose to provide a statement where a commissioner has not provided one, there is no requirement to alert the regulator to the reasons why the commissioner does not support the recommendations.

Local consultation

Amendment 170 also extends the requirement to consult to include "any person to which an affected trust provides goods or services". This would include patients and members of the public in the local health economy. Whilst the current legislation for the TSA process does not extend to requiring patients and the public to be consulted, the BMA notes that in practice, this is an important part of the consultation process to ensure a successful outcome. The BMA supports the inclusion of patients and the public in the TSA consultation process. It is important that those affected are properly consulted with as part of the trust special administration process and that their views are properly sought and considered.

The BMA supports amendment 170 which requires a trust special administrator to have reasonably sought and considered responses from the affected trusts and their staff.

January 2014



[2] p5, Health Education England, Introducing Health Education England: Our Strategic Intent .

[3] House of Lords Hansard, 21 Oct 2013 : Column 786

[4] Commissioner Requested Services are a designated range of services that local commissioners believe should be provided locally if any individual provider is at risk of failing financially.

[5] British Medical Association, April 2012 Engaging in local healthcare developments

Prepared 31st January 2014