Health and Social Care Bill Lords Committee Stage Briefing

25th October 2011

The British Medical Association (BMA) is an independent trade union and voluntary professional association which represents doctors from all branches of medicine across the UK. It has a total membership of over 145,000. Introduction The BMA continues to call for the Bill to be withdrawn or, failing that, to be subject to further significant amendments. Amidst the already rapid roll out of large elements of the Governments health policy and the delegation of much of the detail in the Bill to future regulations and guidance, it also becoming increasingly important to secure formal assurances and clarification about implementation plans. Ahead of the Health and Social Care Bill Lords Committee Stage, this briefing covers in some detail the areas of concern to the BMA in relation to the Bill and the amendments and assurances from Government it believes are necessary to reduce the potential for damage. The areas include: The Secretary of States duty to provide a comprehensive health service Competition Cherry-picking Powers over Clinical Commissioning Groups Incentives for commissioning Public health Education, training and workforce Private patient income cap Foundation trust failure regime Increasing complexity and bureaucracy Information and confidentiality

Duties of the Secretary of State The Bill places a duty on the Secretary of State for Health to continue to promote a comprehensive health service in England (Clause 1). The BMA notes that the Bill seeks to ensure that the Secretary of State will also retain an overall responsibility to secure that services are provided for this purpose, whilst giving operational independence for the delivery of health care via numerous bodies, most notably the NHS Commissioning Board and clinical commissioning groups (CCGs). However, there are still serious concerns that the Bill lacks sufficient explicit assurance about the Secretary of States continuing responsibility for the NHS. The BMA shares the view expressed by the House of Lords Constitution Committee that the Bill should be amended further to provide the legal clarity needed. 1 Further amendments to the Bill are necessary to provide assurance that the Secretary of State retains ultimate responsibility for the provision of a comprehensive health service, whilst also allowing the Board and CCGs day-to-day operational independence. Such an explicit

House of Lords Select Committee on the Constitution, 18th Report of Session 2010-12, Health and Social Care Bill, 30 September 2011

provision would clarify Governments lasting responsibility towards the NHS were there to be structural changes in the future. 1) The BMA notes the amendment to Clause 1 tabled by Lord Mackay of Clashfern (amendment number 4) and is supportive of its intent to make explicit the Secretary of States ultimate responsibility to Parliament for the provision of the health service in England. The amendment also gives operational independence to other NHS bodies but holds the Secretary of State accountable in the event of failure to discharge their duties; we seek further details on how CCGs would be captured within this. Competition The Government amended the role of Monitor to shift the focus from promoting competition to using patient choice as the stimulus for competition (Clause 59). In its response to the Future Forum, the Government announced that the Secretary of States mandate to the NHS Commissioning Board (NHSCB) would make clear its expectations about patients being offered choice. Guided by this choice mandate, the NHSCB, in consultation with Monitor, will set out guidance for commissioners on how choice and competition should be applied to particular services. New guidance from the Department of Health has since been published on any qualified provider (AQP) to apply from April 2012. This sets out a list of eight community and mental health service areas from which local commissioners need to choose a minimum of three. A national list of service areas where AQP should be offered from April 2013 will follow later this year. Monitors functions in relation to preventing anti-competitive behaviour are now limited to activities that are against the interests of patients and service users functions currently carried out by the Office of Fair Trading. Seeking to address concerns about the increased use of the private sector in providing care, the Government introduced changes to the Bill put a duty on the Secretary of State, Monitor and the NHSCB not to exercise [their] functions for the purpose of causing a variation in the proportion of services provided by any sector. This does not prevent such a variation taking place as a result of market forces (e.g. patients choosing more providers from a particular sector through AQP). Although the Government has attempted to address concerns about the increased use of the private sector, the legislation still retains too much emphasis on using market forces to shape health services. The Bill does not restrict the increase in use of private sector providers. 2) The BMA is seeking an amendment to the Bill that makes it explicit that increasing patient choice is not given a higher priority than tackling fair access and health inequalities, meeting need, promoting integrated care and optimising resources. Cherry-picking Amendments were introduced in the latter stages of the Bill in the Commons, which the Government believed would address the risk of providers being able to restrict patient choice by cherry-picking simple and profitable cases, thereby excluding less profitable and more complex ones (Clause 101). However, the Bill still does not sufficiently address the issue of providers only choosing to provide more profitable services. 3) The BMA is seeking further safeguards to the Bill which it believes are necessary to address concerns about providers only choosing to provide more profitable services.

Clinical Commissioning Groups

The BMA has consistently called for greater clinical involvement in the design and management of the health service. Commissioning should be led by clinicians, working together across primary and secondary care, as they are best placed to understand their patients needs and shape services to meet those needs. Commissioning bodies should be free to take the most appropriate commissioning decisions on behalf of, and in conjunction with, the populations for which they are responsible. However, the Bill seems to cut across this. For example, Clause 17 states that: The Secretary of State will have the power to impose regulations on the NHSCB and CCGs, without consultation or agreement. The Secretary of State can force the NHSCB and CCGs to arrange treatments and services in a way that he/she specifies and within a specified time. The Secretary of State will be able to require CCGs to do whatever he/she deems necessary for the purposes of the health service. This will allow him/her to place considerable restrictions on the activity of CCGs, contrary to the Governments aims to delegate decision-making and responsibility to CCGs.

The powers of the NHSCB over the CCGs also appear restrictive. For example: The NHSCB will be able to change a CCGs constitution, without the CCGs agreement, which could, for example, affect the election, voting and governance arrangements. (Clause 22, 14F). The Bill gives little detail about how the NHSCB will measure if a CCG is failing, but grants it draconian powers to dismiss and replace the CCGs Accountable Officer. It makes it clear that the replacement could not come from within the CCG, seeming to undermine the importance of local determination of the process. (Clause 23, 14Z19). The NHSCB will be able to dissolve CCGs and change CCG areas, without consultation. The CCG and the public it serves will want to know more detail about why this is necessary, before dissolution takes place. (Clause 23, 14Z19 and 14Z20).

4) The BMA is seeking amendments and firm assurances that there is genuine devolution of power so that CCGs have sufficient freedoms to use resources in ways that achieve the best and most cost-efficient outcomes for patients. Incentives for commissioning In its response to the Future Forum, the Government signalled its intention to maintain a provision for the NHSCB to make payments to commissioning groups in the form of a quality premium. The BMA has a strong objection in principle to the concept of financial incentives other than those already in place under the GP contract, particularly if those incentives are linked to any initiative designed to save money while reducing patient choice or care options. The Government amended the Bill (Clause 24, 223K) to make clearer the link between any reward (premium) and commissioner performance in relation to quality, improving healthcare outcomes and reducing inequality in healthcare outcomes 2 including the outcomes prioritised in joint health and wellbeing strategies. 3 Separate regulations will define the rules around whether a quality premium should be paid, and how it can be spent. 4 The BMA cannot be confident that the incentives or financial reward associated with commissioning will not

2 3

Ibid, paragraph 4.24. Ibid, paragraph 4.25. 4 Ibid, paragraph 4.26.

adversely affect the doctor-patient relationship until we see the full detail of these proposals, which will only emerge in secondary legislation. 5) The BMA is seeking amendments to ensure the prevention of any actual or perceived conflicts of interests that could arise as a result any financial incentive linked to performance. Public health There is universal concern across the public health community about the Governments plans for the restructuring of public health services. Unless the plans are amended, we believe they will lead to the fragmentation of public health across different organisations; will fail to give the Director of Public Health (DPH) the authority and independence they need to have a real impact on the health of the communities they serve; will remove public health expertise from the commissioning of NHS services, and could even result in the end of medical public health. Local authorities should be able to exercise the powers of an NHS body in the carrying out of their health functions. This would mean that public health specialists would be able to have access to NHS data and be better placed to perform the aspects of their role which are NHS based. It would also allow local authorities to employ staff on NHS terms and conditions, which would better allow specialists to move between different public health organisations as their career progresses, helping to lessen the fragmentation of the service. A fully qualified DPH will be vital if the move of public health responsibilities into local authorities is to be successful. Whilst many local authorities understand this, some do not and may look to appoint unqualified individuals into insufficiently senior posts. All public health specialists have training in health services public health (HSPH), which uses health intelligence and health economics to design evidence based healthcare systems. Others have chosen to further specialise in this domain of public health and have real expertise in commissioning effective and efficient services. 6) The BMA seeks amendments to allow local authorities to exercise the powers of an NHS body in the carrying out of their health functions. This will ensure that there are comparable terms and conditions, which will allow public health to remain an attractive career choice for doctors and other clinicians. 7) The BMA believes it is essential for the expertise, professional independence, and seniority of the DPH to be enshrined in the Bill. 8) The BMA supports the amendment to Clause 6 tabled by Lord Narendra Patel (amendment number 50) to ensure that membership of the NHS Commissioning Board includes at least one registered public health specialist. Without the input of such HSPH specialists, the decisions made by the NHS Commissioning Board may not have the required population health perspective and may therefore be wasteful or inadequate - or could even miss out entire communities. Education, training and workforce The BMA is pleased that the Government has listened to the BMAs concerns and has tabled an amendment providing an explicit duty for the Secretary of State to maintain a system for professional education and training as part of the comprehensive health service (amendment number 43). Such a duty will help ensure more effective national oversight to medical education and training, and by extension, workforce. Local employers unavoidably lack a broad overview of workforce requirements and therefore, the BMA is also supportive of the amendment tabled by Baroness Thornton and Lord Hunt to place an explicit duty on the Secretary of State with regard to national workforce structures (amendment number 45).

Such an amendment would maintain a national pay and bargaining system for healthcare staff, to cover those staff providing NHS services and services for the improvement of public health. 9) The BMA believes that it is essential that there is appropriate consultation and coordination between the Government and the devolved nations to maintain adequate management and planning of the medical workforce nationally. 10) It is essential that new providers of NHS services are required to match, or contribute, on an equitable basis, to the facilities for medical education and research available within current providers of NHS services. This is to ensure that, in the event of an increase in the share of services delivered to NHS patients by non-NHS providers, existing opportunities for medical education, training and research are not diminished. Private patient income cap The abolition of any cap on the amount of income foundation trusts can earn from other sources has the potential to act as an incentive for foundation trusts to undertake more nonNHS activity at the expense of NHS patients ability to access services. If unfettered, this could lead to a two-tier health service, as foundation trusts invest more resources in non-NHS facilities. However, we would accept that the basis for calculating the current cap should be reexamined. The current situation, where some foundation trusts are allowed to generate almost a third of their income from private patients whilst others are not allowed to make any money is an historical accident rather than a coherent policy. A more sensible approach is to create a ceiling on the income that can be generated from private patients but allow foundation trusts to make an appropriate business case to vary the cap. They should also have to give concrete assurances that NHS services will not suffer. Such an approach will also help to ensure transparency. 11) The BMA seeks an amendment to retain a cap on private income but to allow local variation of the cap subject to local consultation and assurances about the protection of NHS services. Foundation Trust (FT) failure regime The BMA has argued for a clearer FT failure regime that focuses on preventing failure by identifying difficulties early on and protects the interests of patients and the public. As part of the original proposals, failing FTs would be subject to a private-sector insolvency route, and Monitor would be required to ensure the continuity of designated services in the event of provider failure. In its response to the NHS Future Forums recommendations, the Government stated its intention to review these proposals and to develop in their place an effective failure regime to support recovery and prevent failure before it happens. 5 The BMA welcomes the Governments recognition of the inadequacy of its original insolvency model for dealing with FT failure. Amendments made to the Bill at the end of Commons stages set out the legislative framework for the FT failure regime, removing the original insolvency provisions. The new regime will be a modified version of the existing arrangements that were brought in, in 2009, which involve turnaround teams. However, the new provisions do not provide much detail on the new process and the BMA would like to see further detailed discussion of this in the Lords. It is expected that Monitor will be responsible for developing the detail via a series of guidance documents over the coming months.
5

Ibid, paragraph 5.45.

12) Any failure regime must be one which includes much more support when early signs of distress develop, with a view to preventing failure. 13) It is essential that the legislative framework governing the failure regime is sound. However, this will be difficult to judge given that so much of the detail around the process remains uncertain. 14) There must be adequate and meaningful consultation between Monitor and stakeholders in developing any guidance. Increasing complexity and bureaucracy The BMA has concerns about increased complexity and bureaucracy in the proposed system, in particular around the role of clinical senates and networks and their relationships to CCGs and other governance matters arising from relationships between CCGs and the NHSCB. As stated earlier, the BMA believes that clinical senates should be hosted by CCGs (not the NHSCB), accompanied by the necessary resources. Furthermore, the Government has stated that the NHSCB local bases will be formed around approximately 50 emerging PCT clusters. 6 Health and Wellbeing Boards will be able to object to the boundaries of CCGs before they are established 7 and refer commissioning plans back to CCGs if they are not in line with the health and wellbeing strategy, although they will not have the veto over the plans. 8 15) Although the Government intends to strengthen governance and accountability, which were lacking in the original proposals, the additional layers have introduced new complexities and their relationships must be further clarified to avoid undue bureaucracy. The BMA believes that the Government must provide a clearer narrative on the relationships between the various bodies. Information and confidentiality The BMA welcomes the Governments acknowledgment of serious concerns that the provisions in the Bill relating to the Information Centre and patient identifiable information are too broad, and that the Government has been considering how to amend the Bill to protect patient confidentiality. 9 The Government says that it will introduce amendments during the Lords stages of the Bill but as yet, no amendments have been tabled. 16) The Bill must ensure appropriate balance between the need for data to be better used and regulated in the NHS for the benefit of the wider public with the importance of protecting patient confidentiality. 10

6 7

Department of Health (2011). Developing the NHS Commissioning Board. London: Department of Health. Government response to the NHS Future Forum report. Op. cit. Paragraph, 3.48. 8 Ibid, paragraph 4.10. 9 Ibid, paragraph 4.52. 10 The need for patient consent is overridden in specific cases such as serious crime. The exemption around healthcare and the procedures is outlined in the NHS Code of Confidentiality.