Editorial Tuesday 29 January 2013: Lord Owen's googly and Coalition unity

Just when you thought it was safe to go back in the Parliamentary water, a big beast resurfaces.

Lord David Owen made some of the best speeches in the Lords debate over the Health and Social Care Act 2012, in very much the same way that Baroness Shirley Williams didn't.

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And now he stands a new short Bill (just eight clauses), which aims to draw the market-y fangs from the Health And Social Care Act 2012. (Owen's opinion piece in The Guardian is here.)

It's not a money Bill, so it can start in the House of Lords, where a first reading is usually a formality with no vote.

That curious sound you can hear is the Coalition leaders' buttocks clenching with nervousness.

They thought this argument was all over: it isn't now.

The NHS is polling like poison for them.

Of course, the numbers say that the Coalition can win the debate in the Commons, and if they get organised, they could probably defeat it in the Lords. (Although Tory Lords leader Tom Strathclyde's now quit.)

That is, assuming the Coalition are still all in this together.

Mmmmm. If not double-mmmmm. Fun lies ahead for Lib Dem party managers.

But even if they don't get the rebels, everybody who notices politics gets re-reminded of the much-loved Health Act. Nostalgia isn't what it used to be.

Lord Owen's Bill may well fall - but that in and of itself may not mark complete failure in his eyes.

Interesting times - and an interesting move. The introduction, Bill text and explanatory notes follow below.

Introduction - Why an Urgent Bill to reinstate the NHS in England is needed
The Abolition of the democratic and legal basis for the NHS in England
The democratic and legal basis for the NHS in England was abolished by the Health and Social Care Act 2012. The impact of this fundamental change is already being felt, ahead of the shift to the new market system in April 2013.

The Act ended the Secretary of State’s duty to secure or provide health services throughout the country, a duty that had been in force since 1948.

A minister may only be held to account legally for services that he or she is responsible for by law. In future, if we can’t get the healthcare we need, ministers won’t have to worry about being taken to court on this count, and there will be no Primary Care Trust to put pressure on.  This means fewer rights for people in England to get the healthcare we need – at a time of unprecedented cuts and closures.

The Act breaks up the universal system that has served us for over sixty years, and reduces the NHS to a stream of taxpayer funds and a logo for the use of a range of public and corporate providers of services.

A House of Lords’ bill published this week will reinstate the Secretary of State’s legal duty to provide the NHS in England and the right of all of us in England to comprehensive and integrated healthcare.

By restoring the legal and democratic basis, the new National Health Service (Amended Duties and Powers) Bill will ensure basic questions about citizens’ rights will continue to be determined democratically, as they should be.

This briefing explains what the government is doing and why an urgent bill to reinstate the NHS in England is required.

What does the government’s Act mean for me?
Cutting free NHS services
When the 2012 Act is implemented, the government will no longer be responsible for providing for our healthcare needs free of charge. The system of healthcare which has served all people throughout England for over sixty years is being dismantled and broken up.

Instead a range of bodies, including for-profit companies, will decide which services will be freely available and who will receive them.

Currently, many NHS services are being transferred to local authorities. They can bring in commercial companies to run them and the 2012 Act provides new charging powers. During the passage of the Health and Social Care Bill last year, these services included:
• immunisation, cancer and cardiovascular screening
• mental health care
• dental public health
• public health
• sexual health services
• management of drug and alcohol addiction
• emergency planning and health protection service
• child health services.

Concerns were repeatedly raised during the passage of the Bill that some services would no longer required by law to be provided free of charge. These services included:  
• Services and facilities for pregnant women, women who are breast-feeding
• Services for both younger and older children
• Services for the prevention of illness
• Care of persons suffering from illness and their after-care
• Ambulance services
• Services for people with mental illness
• Dental public health services
• Sexual health services

Putting commercial companies in control
The Act also promotes more marketisation. More and more NHS services are being put out to tender to for-profit companies and taxpayer funds are being given to commercial corporations whilst publicly run health facilities are closed down.

As the 2012 Act is being implemented, corporations will have more say in determining our entitlement to free health services. In future, no single organisation will be responsible in our area for ensuring all our care.  And it will no longer be clear who should be held accountable when things go wrong.

Our relationship with our doctor will change when for-profit companies run more services.

As a patient, we will no longer necessarily come first: how can we feel confident that our doctor is putting us first when he or she is a for-profit company employee?

Privatisation and marketization has increased in advance of the Act
Some services, including those for the most vulnerable people in society, were last year contracted out to for-profit companies such as Virgin and Serco, which have little or no experience in delivering care. These include services for children with mental health problems and physical disabilities in Devon , and community nursing and health visitor services in Surrey  and Suffolk.

Many NHS hospitals are owned and operated under the expensive private finance initiative, creating serious financial problems for them and putting neighbouring hospitals and services at risk. For-profit companies and investors now control GP practices and other local health services. According to the Financial Times, Virgin already earns around £200 million a year by running more than 100 NHS services nationwide, including GP surgeries.  A private company registered in the Virgin Islands now manages the local hospital in Huntingdon, Hinchingbrooke NHS Trust.

The government is manufacturing a financial crisis in the NHS
It is clear that the government is manufacturing a crisis, reducing the level of services and their quality, and shaking public confidence in the NHS. We are being encouraged to accept the principle that we will in future have to pay privately for services that were once free.

But claims that we can no longer afford the NHS are untrue.

The NHS is not over budget. Last year the NHS budget was underspent and £2 billion was returned to the Treasury.  Headline stories about hospital and other health service deficits only mean that resources are unfairly distributed not that the NHS is unaffordable overall.
Government claims that it is protecting the NHS budget are also untrue.

According to the official watchdog, the Statistics Authority: “expenditure on the NHS in real terms was lower in 2011-12 than it was in 2009-10.”

The NHS is being run as if it is in a financial crisis but this crisis is of the government’s making. Current plans for cutting NHS budgets, hospital beds and sacking thousands of vital NHS staff are based on documents drawn up by management consultancy firms including the US company, McKinsey & Co. The policy will lead to closure and hollowing out of public services and the creation of opportunities for an expanded market for private provision and the introduction of user charges.

The policy is fuelling cuts, closures and mergers on a scale that is unparalleled. There is no evidence to support change on this scale nor the unfair distribution of funds.

Cuts and closures
• In North West London the government plans to cut 25% of beds, and throughout London at least 7 accident and emergency departments will close , with further departments under threat. Up to 5600 jobs in North West London will be lost by 2015 .  Barnet and Chase Farm Hospitals NHS Trust is cutting 208 posts.
• In Merseyside, 4000 NHS jobs will go by 2014
• In South Yorkshire, Rotherham Hospital is set to lose 750 staff by 2015
• In West Suffolk, Serco is planning to cut 137 Community Healthcare jobs.
• In Devon and Exeter, the Royal Devon and Exeter NHS Foundation Trust plans to cut 1115 full-time equivalent posts between 2011 and 2014.
• In Greater Manchester, there are plans to downgrade Trafford General Hospital’s A&E to urgent care and cuts to intensive care, acute surgery and children’s services. Maternity services have already closed.  Salford Royal NHS Foundation Trust plans to cut 750 full-time posts by 2013.   Bolton NHS trust is making 500 redundancies.
• In Warwickshire, the George Eliot Hospital NHS Trust plans to cut the equivalent of 257 full-time staff between 2010 and 2014.
• In Cornwall, Royal Hospital Truro proposed to cut 400 jobs in 2011.
• In Portsmouth, Queen Alexandra Hospital cut 700 jobs and shut 3 wards in 2011 .
• Across England, twenty four out of thirty NHS Direct call centres will close
• 6000 nursing posts have been cut since the coalition came to power in 2010.

Mergers
Hospital mergers reduce services and increase waiting times and travel distances.
• Merger with North Tees was followed by closure of A & E in Hartlepool in August 2011  
• Merger of  South London trust is followed by recommendation of closure of  Lewisham hospital A&E.  
• Merger of Queen Mary’s Sidcup NHS Trust (QMS), Queen Elizabeth Hospital NHS Trust (QEH) and Bromley Hospitals NHS Trust (BHT) to create a single hospital on several sites in 2009 was followed by closure of Queen Mary’s A&E and labour unit in 2010.
• Merger of Norfolk and Waveney and Suffolk mental health trusts was followed by cuts in beds for acute mental illness and community mental health teams
• Barnet and Chase Farm Hospitals NHS trust currently plans a merger which is likely to result in closure of A&E, maternity and paediatric services  .
• Merger resulted in closure of Trafford General Maternity Unit in 2010  and A&E is threatened.
• Merger with Blackburn Hyndburn and Ribble Valley (BHRV) NHS Trust in 2003 was followed by closure of Burnley A&E in 2008  and the paediatric inpatient ward in 2010 .
• Merger resulted in closure of Rochdale Infirmary, Greater Manchester A&E in 2011 .

Why a Bill is needed to reverse the worst aspects of the Act?
The Health and Social Care Act 2012 must be changed because it removes the democratic and legal basis of the NHS at a time when services are being cut and reconfigured on an unprecedented scale.

The NHS was created in 1948 by a law requiring the secretary of state to fund and provide all medical, dental and nursing care to the whole population on an equitable basis throughout the country.  This duty has been abolished.

The government has no mandate for this Act.  We did not vote for the abolition of our NHS. Neither was it a part of the coalition agreement. Unlike England, citizens of Scotland, Wales, and Northern Ireland will continue to have a NHS.

The purpose and limitations of the urgent Bill
The proposed legislation restores the legal and democratic basis of the NHS and the citizens’ rights ultimately to hold the Secretary of State to account.  It will restore the Secretary of State’s duty to provide the NHS in England and gives him or her ministerial powers of direction and planning in order that the duty can be properly discharged.

Specifically, the Bill will:
• reinstate the secretary of state’s duty to provide health services that was formerly contained within sections 1 and 3 of the NHS Act 2006;
• subject all NHS bodies and bodies providing services for the NHS to ministerial direction;
• repeal the duty of autonomy and restore sufficient ministerial control over provision consistent with the secretary of state’s overarching duty to provide health services to the whole of England; and
• give Monitor an objective, so that its purpose is to help deliver the NHS.  

The Bill will not require further reorganization when it is passed.

Allyson  M Pollock (Professor of Public health research and policy)
David Price (Senior Research Fellow)
Global Health, Policy and Innovation Unit
Centre for Primary Care and Public Health
Queen Mary, University of London
58 Turner St, London E1 2AB

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National Health Service (Amended Duties and Powers) Bill

A BILL TO Re-establish the Secretary of State’s legal duty as to the National Health Service in England, QUANGOS and related bodies.

BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

1. Secretary of State’s duties to promote and provide a comprehensive and integrated health service
For section 1 of the National Health Service Act 2006 (Secretary of State’s duty
to promote comprehensive health service) substitute:

“1 Secretary of State’s duty as to the health service
(1) It shall be the duty of the Secretary of State to promote in England a comprehensive and integrated health service designed to secure improvement –
(a) in the physical and mental health of the people of England, and
(b) in the prevention, diagnosis and treatment of illness,
and for that purpose to provide or secure the effective provision of services in accordance with this Act.

(2) The services so provided must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed.

(3) The services provided pursuant to this Act and to the Health and Social Care Act 2012, howsoever or by whomsoever provided, secured or arranged, shall be deemed to be provided in furtherance of the duty to provide or secure effective provision of services under subsection (1).”

2. Abolition of the duties of autonomy
Section 1D and section 13F of the National Health Service Act 2006 (duties as to
promoting autonomy) are repealed.

3. Concurrent duty of and commissioning by the NHS Commissioning Board
(1) Section 1H(2) of the National Health Service Act 2006 is repealed.

(2) In section 1H(3) of that Act, for “For the purpose of discharging that duty,” substitute “For the purpose of furthering the duty of the Secretary of State under
section 1(1),”.

4 Secretary of State's duty as to provision of certain services

(1) Section 3 of the National Health Service Act 2006 is amended as follows.

(2) Before subsection (1) insert—

“(Z1) The Secretary of State must provide or secure the effective provision
throughout England, to such extent as he considers necessary to meet all
reasonable requirements, the accommodation, services and facilities set out in subsection (1)(a)-(f).”

(3) In subsection (1), before “A”, insert “For that purpose,”.

5. Power of directions to QUANGOs and other bodies
(1) The Secretary of State may direct any of the bodies mentioned in subsection (2)
to exercise any of his functions relating to the health service which are specified
in the directions, and may also give directions to any such body about its
exercise of any functions or about its provision of services under arrangements
referred to in subsection 2(h).

(2) The bodies are—
(a) the National Health Service Commissioning Board
(b) a clinical commissioning group,
(c) a Special Health Authority,
(d) an NHS trust,
(e) an NHS foundation trust,
(f) the National Institute for Health and Care Excellence,
(g) the Health and Social Care Information Centre, and
(h) any other body or person providing services in pursuance of arrangements made—
(i) by the Secretary of State under section 12,
(ii) by the Board or a clinical commissioning group under section 3, 3A, 3B or 4 or Schedule 1,
(iii) by a local authority for the purpose of the exercise of its functions under or by virtue of section 2B or 6C(1) or Schedule 1, or
(iv) by the Board, a clinical commissioning group or a local authority by virtue of section 7A
of the National Health Service Act 2006.

(3) In exercising his power under subsection (1), the Secretary of State must have
regard to the desirability, so far as consistent with the interests of the health service
and relevant to the exercise of the power in all the circumstances—
(a) of protecting and promoting the health of patients and the public;
(b) of any of the bodies mentioned in subsection (2) being free, in exercising
its functions or providing services in accordance with its duties and powers, to
do so in the manner that it considers best calculated to promote the comprehensive and integrated service referred to in section 1(1) of the National Health Service Act 2006; and
(c) of ensuring cooperation between the bodies mentioned in subsection (2) in
the exercise of their functions or provision of services.

(4) If, in having regard to the desirability of the matters referred to in subsection (3)
the Secretary of State considers that there is a conflict between those matters and the discharge of his duties under section 1 of the National Health Service Act 2006, he must give priority to the duties under that section.

6. Monitor
(1) The Health and Social Care Act 2012 is amended as follows.

(2) After section 61 insert—

“61A Monitor’s objective
(1) The objective of Monitor is to contribute to the achievement of a comprehensive and integrated health service in England through the exercise of its functions.
(2) In exercising its main duty and other functions Monitor must act in accordance with that objective and in a manner consistent with the performance by the Secretary of State of his duties contained in sections 1 and 3 of the National Health Service Act 2006.”

(3) Section 62(9) is repealed.”

7. Interpretation
Expressions used in this Act which are also used in the National Health Service Act 2006 and in the Health and Social Care Act 2012 shall have the same meanings as the meanings given to those expressions under those Acts.

8 Short title, commencement and extent
(1) This Act may be cited as the National Health Service (Amended Duties and Powers) Act 2013.
(2) This Act shall come into force on the day on which it is passed.
(3) This Act extends to England.

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NATIONAL HEALTH SERVICE (AMENDED DUTIES AND POWERS) BILL - EXPLANATORY NOTES

INTRODUCTION
1. These explanatory notes relate to the National Health Service (Amended Duties and Powers) Bill. They have been prepared in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

COMMENTARY ON CLAUSES
Clause 1 – Secretary of State’s duties to promote and provide a comprehensive and integrated health service
3. This Clause, in conjunction with Clause 4, would reinstate the Secretary of State’s legal duty to provide the NHS in England. It would do so by effectively repealing the abolition of that duty as a result of section 1 of the Health and Social Care Act 2012, and by reproducing the corresponding provision applying in Scotland, namely section 1(1) of the National Health Service (Scotland) Act 1978.

4. Reproducing that provision would also mean that the duty would be to promote a comprehensive and integrated service. Including an integrated service within the government’s fundamental duty would cohere with and provide a central basis for the various integration duties imposed by the 2012 Act on the NHS Commissioning Board (the Board) (s.13N), on clinical commissioning groups (CCGs) (s.14Z1), on Monitor (s.62(4) and s.96), and on Health and Wellbeing Boards (s.195), as well as for the power given to local authorities and CCGs to make a statement about integration in the joint health and wellbeing strategy (s.193). In this way, re-establishing the Secretary of State’s duties and powers to the NHS in England could be done - and strengthened as a response to the integration provisions of the 2012 Act - without further reorganization.

5. The Clause would also strengthen the duty in England by requiring the Secretary of State to provide or secure the effective provision of services. This requirement was contained in the National Health Service Acts of 1946 and 1977, but was removed in the National Health Service Act 2006. The 2006 Act also de-coupled the duty to provide from the duty to promote, and this Clause would return both duties to the same subsection, in line with the 1946 and 1977 Acts and, in Scotland, the 1978 Act.

6. The title of section 1 of the 2006 Act (“Secretary of State's duty to promote health
service”) would revert to the title of section 1 of the National Health Service Act 1977,
which made no distinction between the connected duties of promotion and provision.

7. Subsection (3) clarifies that the services provided under the 2006 Act or under the 2012 Act, whether directly or indirectly, would be so provided in furtherance of the Secretary of State’s duty. These would include services provided as a result of arrangements made by the Board, CCGs and local authorities.

Clause 2 - Abolition of the duties of autonomy
8. This clause would repeal the two sections inserted into the 2006 Act which require the Secretary of State and the NHS Commissioning Board, respectively, to have regard to the desirability of securing, so far as consistent with the interests of the health service, that any other person exercising functions in relation to the health service or providing services for its purposes is free to exercise those functions or provide those services in the manner that it considers most appropriate, and that unnecessary burdens are not imposed on any such person. These duties are incompatible with a national health service which the Secretary of State would, under this Bill, again have the duty to provide.

9. However, certain elements of section 1D of the 2006 Act in relation to the Secretary of State’s power of directions would be retained under Clause 5(3) and (4) of the Bill.


Clause 3 - Concurrent duty of and commissioning by the NHS Commissioning Board
10. Clause 3(1) would repeal section 1H(2) of the 2006 Act, inserted by section 9 of the 2012 Act, which subjects the Board to the duty under section 1(1) of the 2006 Act concurrently with the Secretary of State (except in relation to the public health functions of the Secretary of State and of local authorities).

11. That repeal requires an amendment to the opening words of section 1H(3) of the 2006 Act, and this would be effected by Clause 3(2) which would make clear that the Board’s commissioning functions are for the purpose of furthering the Secretary of State’s duty under section 1(1) of that Act.

Clause 4 - Secretary of State's duty as to provision of certain services
12. This clause would reinstate the duty of the Secretary of State to provide hospital
accommodation, services and facilities as specified in section 3(1) of the 2006 Act, and would extend it to include the duty, in the alternative, to secure their effective provision. This extension reflects the wording of section 1(1), and acknowledges that the government itself will not usually be providing services directly.

13. Because the focus of the Bill is to re-establish the Secretary of State’s duties without a further reorganization, the 2012 Act’s transfer of this duty to each CCG (and, in the process, modifying it to a duty to arrange provision) would remain, but would be amended in order to make clear that a CCG’s duty was for the purpose of implementing the Secretary of State’s prior duty.

14. If the Secretary of State did not consider that implementation by CCGs of their individual duties was resulting in the provision of hospital accommodation, services and facilities as specified which he or she considered necessary to meet all reasonable requirements throughout England, the Secretary of State would be able to issue directions under Clause 5.

15. The power could be exercised, for example, if implementation of the 2012 Act risked putting the Secretary of State in breach of his duties under sections 1(1) and 3 (as modified by this Bill). For example, regulations can be made under the 2012 Act to exclude people from services (section 3(1D)), and only emergency care need be provided for everybody (pursuant to section 3(1C)). These new provisions were part of the shift effected by that Act, away from the Secretary of State’s area-based responsibility under s.3(1) (“throughout England”) - subsequently delegated to Primary Care Trusts established by order with responsibilities based on electoral wards - to list-based responsibilities of CCGs (“persons for whom a CCG is responsible”). If this shift were to result in everybody in England not being provided for, directions to one or more CCG under Clause 5, for example, would be able to rectify the situation, and could require addressing the approach to the resource allocation formula.

Clause 5 – Power of directions to QUANGOs and other bodies
16. This Clause would give the Secretary of State a general power of giving directions to those quasi-autonomous non-governmental organisations (QUANGOs) and other bodies with health service functions and contracts who may be given emergency directions under section 253 of the 2006 Act (as amended by section 47 of the 2012 Act). This general power would be additional to other powers given to the Secretary of State by the 2012 Act to give directions in other specific circumstances (for example, to direct the Board to exercise any of his or her functions relating to the provision of primary medical services, or to require a clinical commissioning group to use specified banking facilities).

17. Clause 5(3) would seek to address concerns that the power of directions might be used in particular circumstances to impose an undesirable form of centralised control. It would therefore require the Secretary of State, before issuing relevant directions, to have regard to the desirability of, firstly, protecting and promoting the health of patients and the public. Such protection and promotion is an underlying purpose motivating establishment of the NHS, and is, for example, one of the key responsibilities of Good Medical Practice for doctors registered with the General Medical Council.

18. Secondly, regard would have to be had to the desirability of the QUANGOs and other bodies receiving directions being free to perform their functions in the manner that they consider best calculated to promote the comprehensive and integrated health service. This requirement is based on part of the duty of autonomy that was introduced in the 2012 Act, with modifications to its precise terms and the circumstances in which the duty would arise. It could arise, for example, in situations envisaged by the Medical Innovation Bill where it might be desirable to support responsible innovation in cases where evidence to support particular courses of treatment or management is unavailable or uncertain.

19. Thirdly, under Clause 5(3)(b) regard would also have to be had to the desirability of ensuring cooperation among the same bodies.

20. Clause 5(4) would preserve the purpose of section 1D(2) of the 2012 Act, namely to preserve the precedence and priority of the duties to promote and provide under section 1.

Clause 6 – Monitor
21. Currently, there is no objective underpinning Monitor’s powers and duties – unlike Ofgem, for example. This Clause would make clear that the end to which its functions under the Health and Social Care Act 2012 must be directed is the comprehensive and integrated health service that it is the Secretary of State’s duty to promote and provide under the National Health Service Act 2006.

22. This Clause would also - by inserting into the 2012 Act a new section 61A(2) and by
repealing section 62(9) - reinstate the duty of Monitor to act consistently with the
Secretary of State’s duties to promote and provide. Parliament had imposed that duty on Monitor both in section 32 of the 2006 Act and in section 3 of the Health and Social Care (Community Health and Standards) Act 2003 (although in those enactments Monitor’s duty also extended to acting consistently with the Secretary of State’s duty in relation to university clinical teaching and research). The 2012 Act, in section 62(9), only imposed a duty on Monitor in relation to the duty to promote under section 1(1) of the 2006 Act, hence its proposed repeal under this Clause.