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The Health and Care Bill- What does it mean for consultors?

Last week saw the introduction into Parliament of the Government’s new Health and Care Bill, the most significant reorganisation of the National Health Service since the Lansley reforms. The Bill will abolish CCGs, replacing them with new Integrated Care Boards and Integrated Care Partnerships, will confer significant new powers to direct NHS bodies and intervene in reconfigurations on the Secretary of State for Health and Social Care, and will impose a host of new duties on the NHS. The Bill is proving intensely controversial among both opposition parties, who have described it as a ministerial power grab, and Tory backbenchers who are concerned about the effects it might have on their constituencies.

We’ve been taking a little while to go through it, and we expect to have more in depth analysis out over the next couple of weeks, examining the detail of the legislation and drawing out the important likely changes for consultors, but we thought that rather than making you wait for that, we’d have a quick glance at the headline proposals and briefly outline our initial thoughts.

We think there are a few key issues for healthcare professionals. The first is new involvement and consultation obligations arising from the Bill. Perhaps the most notable of these is the required consultation on the constitutions of the new Integrated Care Boards. The Bill itself takes a fairly non-prescriptive approach to how these consultations should be run, using the tried and tested ‘must consult any persons they consider it appropriate to consult’ formula. Those hoping to undertake limited consultations on this may however face problems- one of the questions over these plans that has already been raised is over the geographical boundaries of the new ICBs, something the Bill has little comment on (save to say that they must not overlap). Will there be a need for consultation on boundaries? We’ll have to wait until the guidance emerges to be sure.

There is also a ‘new’ requirement for consultation on the five year joint forward plans required of each ICB and its partners. Strictly speaking, this is a replacement for the previous one year commissioning plans under s.14Z11-14Z15, and the consultation requirements remain largely unchanged except in terminology. With the new plans operating on a five-year cycle, rather than an annual one, we wonder if this might take any pressure off often beleaguered NHS commissioners and make these plans less of a problem to prepare. We also have something of an internal debate about whether (initially at least) this might be useful as a mechanism for ironing out policy differences between different NHS bodies coming together under the umbrella of the ICB- but as always we mustn’t lose sight of the bigger picture, and we have some fears that such a degree of granularity might have this effect.

The existing involvement duties under the act remain largely unchanged, though one of the most significant and contentious ones, s.14Z2 will be moving to become the new s.14Z44. Substantively the substance remains unchanged, with only minor technical amendments. The old section 242 remains in place, with just one minor amendment to make it consistent with new principles on the appointment of Trust Special Administrators. On this then there should be little day-to-day change, and colleagues can (for now) keep involving people in line with extant case law and principles.

Probably the most significant functional changes that could have an impact on consultors are the new powers being given to the Secretary of State for Health and Social Care to both give directions to NHS England, and to intervene directly in reconfiguration of services. Previously, the Secretary of State could only intervene with a referral from local authorities, and although that power has not been abolished yet, under the new legislation any service reconfiguration (or ‘likely’ reconfiguration) will have to be referred to the SoS to allow them to intervene. We’re expecting guidance to potentially narrow down exactly which reconfigurations are to be required- otherwise the SoS is going to be very busy, but there are potential questions over involvement and consultation here.

Many of the NHS related cases we see relate to medical facilities with a long history of abortive attempts at change- so what about when one of these arises and the Secretary of State decides to intervene to ensure that a process comes to a conclusion? The involvement obligations under the NHS Act (in their new formulation) remain in place, and a ministerial direction or intervention cannot override statute. So if ministers try to accelerate change programmes before appropriate and full involvement has taken place, instead of seeing consultation court cases being brought against CCGs, we could instead see them brought directly against an interfering Secretary of State.

The other question arises from the powers of direction conferred on the SoS in new s.13ZC. Although broadly drafted, one of the specifically mentioned directions that may be given under s.13ZC(3)(b) is a direction as to “conditions that must be met before a function is to be exercised (for example, conditions relating to the provision of information, consultation or approval)”. With the new s.14Z44 remaining in place, and s.242 largely unchanged, the basic framework for lawful involvement remains in place, and we can’t help but wonder what directions the SoS might give with regard to consultation.

Many of the questions that arise from the Bill will not be truly answerable until we have seen the relevant guidance as well (especially around how the SoS intend to use their new powers), but things are moving quickly. As with several other major pieces of legislation, the Government seems to be trying to push through this legislation as fast as possible, with its second reading debate taking place over three hours on Wednesday 14th of July (a process we would usually expect to take several days). Naturally, we’ll be reaching out to NHS colleagues as we go through the process to get your perspectives, and we hope to organise some small-group sessions and potentially larger briefings in the near future to spark the debate off and begin addressing some of the points raised.

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