Health and Social Care Act

Status of the bill: Enacted

Main purpose of the bill:

To create an independent NHS Board, promote patient choice and to reduce NHS administration costs.

Main points of the bill:

Establishes an independent NHS Board to allocate resources and provide commissioning guidance.

Increases the power of GPs to commission services on behalf of their patients.

Strengthens the role of the Care Quality Commission

Develops Monitor - the independent regulator of NHS foundation trusts - into an economic regulator to oversee aspects of access and competition within the NHS.

Cuts the number of health quangos, including the abolition of Primary Care Trusts and Strategic Health Authorities, in order to help achieve the Government's commitment to reduce NHS administration costs by a third.

Controversy

The Health and Social Care Bill proved to be one of the most controversial bills ever published, attracting widespread criticism, concern and condemnation from all sectors – health professionals, unions, the public, even the Liberal Democrats.

The outcry was so huge that the Government took the unusual step of announcing there would be a break in the passage of the bill to allow time to "pause, listen and reflect" on the proposed reforms. A two-month nation-wide "listening exercise" was launched in April 2011 and an independent group – the NHS Future Forum – established to oversee the exercise.

The Forum's 45 members attended around 200 events and met with over 6,700 people face to face. In addition, over 25,000 people emailed their views and a further 4,000 sent private comments or completed questionnaires or website responses.

Forum chairman, Professor Steve Field, described the response as "staggering". He said: "I am clear that the reason people have been so willing to enter into a meaningful, constructive and insightful dialogue with us and with each other is not because they don’t believe the NHS needs to change, but because they want any changes to be the right ones and to feel ownership of them."

The four core themes of the listening exercise were: choice and competition; public accountability and patient involvement; clinical advice and leadership; and education and training.

In his foreword to the Forum's report, Professor Field said the opposition to the bill's proposals "was not merely political", but "stemmed from genuine fear and anxiety that the reforms would not deliver the improvements that we all want." While many "feared for their own job prospects", others "feared that their NHS was about to be broken up and in their words ‘privatised’."

The Forum concluded that whilst "some of this fear was misplaced" and the result of a failure by the Government to explain the proposals clearly, in other areas people's concerns were found to be "justified". The findings and recommendations of the Forum were reported to the Government on 13 June 2011.

The Government's response, published on 20th June, set out the changes it intended to make in light of the recommendations, noting that many of the changes could be made within the flexibility of the bill as it stands, with a number of other changes requiring amendments to the bill.

Subsequently, the House agreed a programme motion on 21st June re-committing certain clauses to the Public Bill Committee and the Government tabled a set of amendments on 23rd June to be debated by the Public Bill Committee.


NHS Future Forum core recommendations and Government response:

1) Forum:
The enduring values of the NHS and the rights of patients and citizens as set out in the NHS Constitution are universally supported and should be protected and promoted at all times.
The Bill should be amended to place a new duty on the NHS Commissioning Board and commissioning consortia to actively promote the NHS Constitution.
In addition, Monitor, the Care Quality Commission, the NHS Commissioning Board and commissioning consortia should all set out how they are meeting their duty to have regard to the NHS Constitution in their annual reports.
The NHS should be freed from day-to-day political interference but the Secretary of State must remain ultimately accountable for the National Health Service. The Bill should be amended to make this clear.

1) Government response:
Some have raised concerns that the Bill would weaken NHS principles or the Government’s overall responsibility for the NHS. To make clear that this is not the case, we are tabling amendments which will:
Require the NHS Commissioning Board and clinical commissioning groups to take active steps to promote the NHS Constitution, which enshrines the core principles and values of the NHS.
Make explicit that the Secretary of State remains fully accountable for the NHS.
Create explicit powers for the Secretary of State to oversee and assess the national NHS bodies, to ensure they are performing effectively, while respecting their operational independence.

2) Forum:
Patients and carers want to be equal partners with healthcare professionals in discussions and decisions about their health and care. Citizens want their involvement in decisions about the design of their local health services to be genuine, authentic and meaningful. There can be no place for tokenism or paternalism. The declaration of ‘no decision about me, without me’ must become a reality, supported by stronger and clearer duties of involvement written into the Bill focused on the principles of shared decision-making.

Because the NHS ‘belongs to the people’ there must be transparency about how public money is spent and how and why decisions are made.
The Bill should require commissioning consortia to have a governing body that meets in public with effective independent representation to protect against conflicts of interest. Members of the governing body should abide by the Nolan principles of public life. All commissioners and significant providers of NHS-funded services, including NHS Foundation Trusts, should be required, as a minimum, to publish board papers and minutes and hold their board meetings in public. Foundation Trust governors must be given appropriate training and support to oversee their Trust’s performance – until governors have the necessary skills and capability to take on this role effectively, Monitor’s compliance role should continue.

GPs, specialist doctors, nurses, allied health professionals and all other health and care professionals state that there must be effective multi-professional involvement in the design and commissioning of services working in partnership with managers.
Arrangements for multi-professional involvement in the design and commissioning of services are needed at every level of the system. The Bill should require commissioning consortia to obtain all relevant multi-professional advice to inform commissioning decisions and the authorisation and annual assessment process should be used to assure this. In support of this, there should be a strong role for clinical and professional networks in the new system and multi-speciality clinical senates should be established to provide strategic advice to local commissioning consortia, health and wellbeing boards and the NHS Commissioning Board.

Managers have a critical role to play in working with and supporting clinicians and clinical leaders. Experienced managers must be retained in order to ensure a smooth transition and support clinical leaders in tackling the financial challenges facing the NHS.

There should be a comprehensive system of commissioning consortia but they should only take on their full range of responsibilities when they can demonstrate that they have the right skills, capacity and capability to do so. The assessment of the skills, capacity and capability of commissioning consortia must be placed at the heart of authorisation and annual assessment process. Where commissioning consortia are not ready, the NHS Commissioning Board should commission on their behalf but provide all necessary support to enable the transfer of power to take place as soon as possible.

Patients want to have real choice and control over their care that extends well beyond just choice of provider. Building on the NHS Constitution, the Secretary of State should, following full public consultation, give a ‘choice mandate’ to the NHS Commissioning Board setting out the parameters for choice and competition in all parts of the service. A Citizens Panel, as part of Healthwatch England, should report to Parliament on how well the mandate has been implemented and further work should be done to give citizens a new ‘Right to Challenge’ poor quality services and lack of choice.

2) Government response:
The Forum’s report shows there is universal agreement that patient care is better if it is based on input from those closest to patients – doctors, nurses and other health and social care professionals – in discussion with patients and carers, the voluntary sector, and other healthcare partners.

But we have also heard that, to do this well and really make a difference to patients and carers, we need to be more ambitious. So we will:

Make sure that a range of professionals play an integral part in the clinical commissioning of patient care, including through clinical networks and new clinical senates hosted by the NHS Commissioning Board and stronger duties on commissioners to obtain an appropriate range of clinical advice.
Ensure that at least one registered nurse and secondary care specialist doctor are appointed to clinical commissioning groups’ governing bodies.
Embed clinical leadership throughout the new arrangements and support leadership skills to develop.
Support clinical commissioning groups to make high quality, evidence-based decisions, with information joining up to support integrated care.
Provide more clarity around the proposed arrangements for supporting the development of clinical commissioning groups, authorising them to take on commissioning responsibilities and ensuring ongoing accountability for their role in improving the quality of care.

The Future Forum agrees with us that patients and carers should be at the heart of the NHS, through shared decision making about their care and meaningful involvement in how health services are organised. But the Future Forum also says that if this is to be achieved, more needs to be done to ensure that shared decision making becomes the norm and that new organisations are sufficiently accountable for the decisions they make.
In response to these recommendations, we will:
Strengthen the accountability of new organisations, including clinical commissioning groups.
Ensure more joined-up local services by strengthening requirements for close working between health and wellbeing boards and clinical commissioning groups.
Strengthen the duties of organisations across the system with regard to patient, carer and public involvement.
Strengthen the definition of involvement to reflect better the principle of 'no decision about me without me'.
Ensure that commissioning groups receive a quality premium only where they can demonstrate good performance in terms of quality of patient care and reduced inequalities in healthcare outcomes.

3) Forum:

Competition should be used as a tool for supporting choice, promoting integration and improving quality and must never be pursued as an end in itself. Monitor’s role in relation to competition should be significantly diluted in the Bill. Its primary duty to ‘promote’ competition should be removed and the Bill should be amended to require Monitor to support choice, collaboration and integration.

Private providers should not be allowed to ‘cherry pick’ patients and the Government should not seek to increase the role of the private sector as an end in itself. Additional safeguards should be brought forward.

The duties placed on the Secretary of State, the NHS Commissioning Board and commissioning consortia to reduce health inequalities are welcome. These now need to be translated into practical action. The Mandate for the NHS Commissioning Board, the outcomes frameworks for the NHS, public health and social care, commissioning plans and other system levers and incentives must all be used to help reduce health inequalities and improve the health of the most vulnerable.

Local government and NHS staff see huge potential in health and wellbeing boards becoming the generators of health and social care integration and in ensuring the needs of local populations and vulnerable people are met. The legislation should strengthen the role and influence of health and wellbeing boards in this respect, giving them stronger powers to require commissioners of both local NHS and social care services to account if their commissioning plans are not in line with the joint health and wellbeing strategy.

Better integration of commissioning across health and social care should be the ambition for all local areas. To support the system to make progress towards this, the boundaries of local commissioning consortia should not normally cross those of local authorities, with any departure needing to be clearly justified. The Government and the NHS Commissioning Board should enable a set of joint commissioning demonstration sites between health, social care and public health and evaluate their effectiveness.

3) Government response:
Nearly everyone who contributed to the listening exercise felt patients should be given more choice and control over their care. Some felt that the competition that accompanies increased choice brought benefits for patients, while others were concerned about its impact on existing NHS providers and integrated services.
The NHS Future Forum said that, while competition has a role to play, the Government should make its position clearer and guard against the dangers of competition being an end in itself. We have heard this message and will improve our plans as follows:
The Bill will rule out any deliberate policy to increase or maintain the market share of any particular sector of provider – private, voluntary or public.
Monitor’s core duties will be focused on protecting and promoting patients’ interests, not on promoting competition as though it were as an end in itself.
We will keep the existing rules on co-operation and competition in the NHS.
There will be additional safeguards against cherry-picking and price competition.
We will set limits on Monitor’s powers to take action against commissioners.
We will phase in the extension of Any Qualified Provider.
Monitor will be required to enable integration of services for patients.
We will strengthen the duties on commissioners to promote integrated services.
The NHS Commissioning Board will promote innovative ways of demonstrating how care can be made more integrated, including exploring opportunities to move towards single budgets for health and social care.
As recommended by the Forum, the Secretary of State’s mandate to the NHS Commissioning Board will set clear expectations about offering patients choice: a ‘choice mandate’.
We will extend personal health budgets as a priority, subject to evidence from the current pilots.

4) Forum:
Most NHS staff are unfamiliar with the Government’s proposed changes to the education and training of the healthcare workforce. Those who are aware feel that much more time is needed to work through the detail.
The ultimate aim should be to have a multi-disciplinary and inter-professional system driven by employers. The roles of the postgraduate medical deaneries must be preserved and an interim home within the NHS found urgently. The professional development of all staff providing NHS funded services is critical to the delivery of safe, high quality care but is not being taken seriously enough. The National Quality Board should urgently examine how the situation can be improved and the constitutional pledge to 'provide all staff with personal development, access to appropriate training for their jobs and line management support to succeed' be honoured.

Improving the public's health is everyone's business but should be supported by independent, expert public health advice at every level of the system.
In order to ensure a coherent system-wide approach to improving and protecting the public's health, all local authorities, health and social care bodies (including NHS funded providers) must cooperate. At a national level, to ensure the provision of independent scientific advice to the public and the Government is not compromised we advise against establishing Public Health England fully within the Department of Health.

4) Government response:
The NHS Future Forum highlighted that there was strong support for our proposals to improve arrangements for professional development. But they also said that further work is needed to develop detailed proposals following consultation.

We will further develop and revise our plans to make sure we get them right. In particular, we will:
Ensure that Health Education England is in place quickly to provide national leadership and strong accountability, a whole workforce and multi-professional approach, with strong relationships with health, care and education partners.
Ensure a safe and robust transition for the education and training system. During transition, deaneries will continue to oversee the training of junior doctors and dentists, and we will give them a clear home within the NHS family.
Put in place a phased transition for provider-led networks to take on their workforce development responsibilities when they can demonstrate their capacity and capability.
Further consider how best to ensure funding for education and training is protected and distributed fairly and transparently, and publish more detail in the autumn.
Ensure high quality management is valued across the NHS, with a commitment to retaining the best talent across the PCTs and SHAs.

5) Forum:
Clinical leaders, managers and all those who care about the success of the NHS agree that quality, safety and meeting the financial challenge must take primacy and the pace of transition should reflect this.
To ensure focused leadership for quality, safety and the financial challenge, the NHS Commissioning Board should be established as soon as possible.

5) Government response:

The NHS Future Forum emphasised the need to get the pace of change right, in the best interests of quality and safety. We aim to strike a balance between maintaining momentum and allowing more time to recognise that some organisations may not be ready to take on their full responsibilities on the current timetable. We will make a number of changes to our proposals:

Primary Care Trusts will cease to exist in April 2013. However, clinical commissioning groups will not be authorised to take on any part of the commissioning budget in their local area until they are ready and willing to do so.
By April 2013, GP practices will be members of either an authorised clinical commissioning group, or a 'shadow' commissioning group, i.e. on that is legally established but operating only in shadow form.
Where a commissioning group is ready and willing, it will be able to take on commissioning responsibility earlier. Where a group is not yet ready, the local arms of the NHS Commissioning Board will commission on its behalf.
The NHS Commissioning Board will be established by October 2012 to start to authorise clinical commissioning groups, but will only take on its full responsibilities from April 2013.
Choice of Any Qualified Provider will be phased in gradually from April 2012.
Our expectation is that the remaining NHS trusts will be authorised as foundation trusts by April 2014. But if any trust is not ready by then, it will continue to work towards foundation trust status under new management arrangements. We will further extend, to 2016, the transitional period where Monitor retains specific oversight power over foundation trusts.
We will ensure a safe and robust transition for the education and training system, and will set our further details in the autumn.
 

Progress of the bill:

The Health and Social Care Bill was presented to Parliament on 19th January 2011.

Commons:
First Reading: 19.01.11 Second Reading: 31.01.11 Committee Stage: 03.02.11 Committee Debate: 08.02.11 10.02.11 15.02.11 17.02.11 01.03.11 03.03.11 08.03.11 10.03.11 15.03.11 17.03.11 22.03.11 24.03.11 29.03.11 31.03.11 28.06.11 30.06.11 05.07.11 07.07.11 12.07.11 14.07.11 Report Stage: 06.09.11 07.09.11  Third Reading: 07.09.11

Lords:

First Reading: 08.09.11 Second Reading: 11.10.11 12.10.11 Committee Stage: 25.10.11 02.11.11 07.11.11 09.11.11  14.11.11 16.11.11 22.11.11 28.11.11 30.11.11 05.12.11 07.12.11 13.12.11 15.12.11 19.12.11 21.12.11 Report Stage: 08.02.12  13.02.12  27.02 12  29.02.12  06.03.12  08.03.12  13.03.12  Third Reading: 19.03.12

Ping Pong: 20.03.12  Royal Assent: 27.03.12