Health and Social care bill undergoing scrutiny in the House of Lords

The Health and Social Care Bill is about to undergo detailed scrutiny by the House of Lords. This briefing examines the Government's latest amendments as Peers prepare to debate the Bill.

Summary

This briefing incorporates the Nuffield Trust's response to the latest Government amendments to the Health and Social Care Bill, published in September 2011, ahead of a second reading in the House of Lords on 11 and 12 October. It does not aim to be a comprehensive summary of the Bill, but instead provides some evidence-based analysis of those sections (namely parts 1 and 3) which we believe might usefully be the subject of further debate and clarification by the House of Lords. 

Many of the arguments both in favour and against the NHS modernisation plan are now well rehearsed and a key consideration for Peers will be the extent to which the now amended legislation mirrors the guarantees made by the Government following the publication of the NHS Future Forum’s report.

There now needs to be a resolution to the Bill in the interests of providing the system with some much needed strategic certainty

Peers are therefore likely to focus most of their attention on those areas of the Bill that were not given detailed attention in the Commons as time ran out, namely the new proposals around provider failure and Monitor’s expanded remit. The recently published policy statements around clinical commissioning group (CCG) authorisation, the role of the NHS Commissioning Board, and the extension of the any qualified provider (AQP) policy, arguably also provide them with much more contextual detail against which to measure major provisions in the Bill.

The reflections contained in our recent submission to the second Bill Committee are still relevant, but this briefing updates this with an analysis of the amendments that were tabled by the Government shortly before the Commons’ Third Reading and Report Stages.

Among its observations are that:

  • There remain many areas of the Bill that lack policy and implementation detail. Although the outlines and broad expectations of the new organisations, for example Monitor, clinical commissioning groups and the NHS Commissioning Board are included, much will depend on the culture and modus operandi of these bodies as they carry out their functions.
  • Political interference in the workings of the NHS is a primarily cultural rather than legal phenomenon. This calls into question whether the controversy surrounding the Secretary of State’s duties (to ‘secure’ rather than provide’) can reach a satisfactory resolution.
  • The governance and accountability arrangements for clinical commissioning groups have been improved but questions still remain about the impact of the authorisation process, ensuring the competency of CCG boards and the impact of financial incentives.
  • The Government has proposed an improved failure regime, but details about access to funds, including the NHS Bank, are still lacking. These are crucial for ensuring increased transparency and supporting the drive towards greater efficiency.
  • There is a strong possibility of a new wave of hospital mergers in response to the financial challenges among a number of NHS trusts that have yet to attain foundation trust status. It is therefore important that reconfiguration decisions for NHS trusts are subject to a rigorous assessment of their impact on both competition and patient and public interest. Given the complexity of these issues in health care there is a case for Monitor leading the appraisal of mergers rather than the Office of Fair Trading.

With the NHS already making many changes in anticipation of the passing of the Bill, we believe there needs to be a resolution to the Bill in the interests of providing the health service with some much needed strategic certainty. The briefing warns that further protracted negotiations run the risk of alienating the many clinicians and other groups across the NHS whose enthusiasm and energy will be vital to the effective implementation of what is still a complex reform programme.

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