HEALTH AND SOCIAL CARE (COMMUNITY HEALTH
AND STANDARDS) BILL
1. A bill has been introduced into this House
to amend the law about the National Health service; to make provision
about quality and standards in the provision of health and social
care, including provision establishing the Commission for Healthcare
Audit and Inspection and the Commission for Social Care Inspection;
to amend the law about the recovery of NHS costs from persons
making compensation payments; to provide for the replacement of
the Welfare Food Schemes; to make provision about appointments
to health and social care bodies; and for connected purposes.
The Health and Social Care (Community Health and Standards) Bill
was brought from the House of Commons on 9th July (HL Bill 94).
2. The National Health Service, by reason of
its existence and its functions in meeting the health care needs
of the public, is a significant, if specialised, part of the constitution.
Ever since the creation of the NHS over 50 years ago, the service
has had an 'ad hoc' structure with various bodies at regional
and local levels that have ultimately been accountable to Parliament
through the Secretary of State for Health. Provision of the health
service has always been regarded as unsuitable for the ordinary
structure of a government department, although the Department
of Health has retained responsibility for the structure, performance
and financing of the NHS. Many different organisational schemes
have been attempted for the NHS, but a recurrent feature has been
the use of appointment by ministers to form the various managerial
bodies that have existed. There has been some interface and overlapping
between the NHS and local government (for example, as regards
care of the elderly and other aspects of social services), but
local authorities since 1947 have had no direct involvement in
most forms of health provision.
3. The bill seeks to inject a new element of
local democratic involvement in the government of the NHS in England.
In providing for NHS foundation trusts, the bill creates a new
legal form, a 'public benefit corporation', which must be constituted,
on the authority of a new officer, the Independent Regulator of
NHS Foundation Trusts, in accordance with the requirements in
Schedule 1 to the bill. The members of this corporation are to
be persons who fall into two classes: (a) the 'public constituency'
- persons who live in the area specified in the constitution of
the trust, and persons who have attended any of the corporation's
hospitals as patients or as the carers of patients (Schedule 1,
paras 3(1)and 3(3)); and (b) the 'staff constituency' - persons
who are employed by the corporation under a contract of employment
or who exercise certain functions for the corporation (Schedule
1, paras 3(1), 3(4), and 3(5)).
4. The constitution must provide for a minimum
number of members of each constituency, and a person may not become
a member unless he or she has agreed to pay a sum not exceeding
£1 to the corporation. The board of governors of a foundation
trust are to consist mainly of persons elected by the public and
staff constituencies from their own members every three years.
More than half of the governors must be elected by the public
constituency (Schedule 1, para 8(1)) and at least one must be
elected by the staff constituency (Schedule 1, para 8(2)). A
register of members must be kept showing the constituency to which
each member belongs (Schedule 1, para 18).
5. The House of Commons Health Committee, in
its report on foundation trusts, noted that the proposals would
potentially bring the benefit of "a new form of social ownership
designed to involve patients and the public in setting the strategic
direction of the trust" (2nd Report, Session 2002-03, HC
395, para 18). That Committee also found that "instead of
accountability to Government, the trust will be accountable to
a Government appointed but independent regulator, and to a locally
elected Board of Governors" (para 19). The Committee observed
that, subject to approval by the Independent Regulator, trusts
would be able to determine their own membership and thus their
own electorate. The Committee also drew attention to the need
for foundation trusts to 'face the challenge of designing and
administering large community and staff elections' (para 72).
6. In the light of the above, we draw attention
to two features of the proposals which we consider raise constitutional
- the new form of democratic involvement in the
governance of health provision in certain areas of England;
- the fact that arrangements for elections to NHS
trusts are not specified in the bill, but are left to each trust
to determine, subject to the approval of the regulator.
7. The fact that each trust is to be left to
determine its own constitution, subject to the general provisions
in Schedule 1 to the bill, will lead to local variation in electoral
boundaries, the composition of the electorate, and the process
of elections. We further note that provision is not made for
the oversight of such elections by the Electoral Commission.
- We draw these matters to the attention of
the House as raising questions of principle about principle parts
of the constitution.