NHS legal opinion: respond to your MP

Photograph by diekatrin (Flickr)

Lots of MPs have been responding to 38 Degrees members with their views on the government’s plans for the NHS. Members have been sharing their responses here on the 38 Degrees website.

Now we’ve had a couple of days to look through those answers together, it’s clear that some myths about the NHS plans and our legal opinions are coming up again and again. Below, there are the key points which keep cropping up, as well as one or two suggested responses.

How else could we respond to these points? Are there any other arguments which just keep on coming up, which we could work together on responding to? Please share your ideas in the comments section below, to help draw up a mythbusting factsheet for MPs before the vote next week. This blog is a “work in progress”, so please share ideas for improvements, as well as telling us if you spot a mistake.

If you want to pick up on the some of the specific points with your MP, you can send them an email by clicking here.

Myth 1: Confusing “duty to promote” with “duty to provide”
Some MPs have said: ‘Their own legal advice confirms that there will be no change to the core duty on the Secretary of State to promote a comprehensive health service.’ (David Gauke MP, Jim Dowd MP, Laurence Robertson MP)

Response: Our legal opinion wasn’t about “duty to promote”. It was about “duty to provide”. That’s a pretty important difference. When MPs talk about duty to promote, they’re not answering our questions about the bill.

In the legal opinion about duty to provide it said:
“3. Effectively, the duty to provide a national health service would be lost if the Bill becomes law. It would be replaced by a duty on an unknown number of commissioning consortia with only a duty to make or arrange provision for that section of the population for which it is responsible. Although some people will see this as a good thing, it is effectively fragmenting a service that currently has the advantage of national oversight and control, and which is politically accountable via the ballot box to the electorate.”

“4. As set out in case law relating to the 2006 Act and its predecessor, the NHS Act 1977,when the Secretary of State or his delegates carries out the section 3(1) duty to provide services, the duty to promote a comprehensive health service in England, under section1(1), has to be borne in mind at all times. There will be severance between the two duties, if the Bill becomes law, as the bodies that will have the duty to arrange services pursuant to section 3(1) (the commissioning consortia) do not have a duty to promote a comprehensive health service.”

Questions for MPs who have made this point:
– How do you understand the relationship between duty to provide and duty to promote?
– If the Health and Social Care Bill is not amended to include the Secretary of State’s duty to provide a national health service, will you oppose the bill?

Myth 2: The duty to provide doesn’t exist
Some MPs have said: ‘38 Degrees suggests that the Health and Social Care Bill, “removes the Secretary of State’s duty to provide”. However, 38 Degrees’s own legal advice states that the Secretary of State has never had such a duty to provide. Therefore, the Health and Social Care Bill makes no changes to the Secretary of State’s duty to provide, because it never existed in the first place.’ (Oliver Colvile MP, Caroline Noakes MP, Liam Fox MP)

Response: Our legal opinion discusses the situation now, under the NHS Act 2006, and what could happen if the bill becomes law. The legal opinion is clear that the duty to provide, contained in section 3(1) of the 2006 Act ultimately rests with the Secretary of State. The legal opinion says:

“[NHS Act 2006] Section 3(1) is the main duty for the provision of health services. The duty is again described in general terms (rather than in terms of providing services to individuals who have particular needs), but it is, at this point in the statutory framework at least, very much a function which rests with the Secretary of State.”

There’s then a long list of the Secretary of State’s duties – you can see it here.

The executive summary says that the duty to provide is currently on the Secretary of State and will be lost following the amendments.

“It is clear that the drafters of the Health and Social Care Bill intend that the functions of the Secretary of State in relation to the NHS in England are to be greatly curtailed. The most striking example of this is the loss of the duty to provide services, which is currently placed on the Secretary of State.”

The opinon explains that although the duty can be delegated by the Secretary of State, that doesn’t change the fact that the duty ultimately rests with the Secretary of State. If the changes go ahead, that will no longer be the case.

Questions for MPs who have made this point:
– Some MPs are saying the duty to secure provision of NHS services will be catered for in the new legislation, but you’re saying it doesn’t exist.
– Who’s right? Can you explain the confusion?

Myth 3: This bill doesn’t make any changes to competition law, so nothing will change about the way competition law affects the running of the NHS
Michael Fallon MP said “In fact, the Bill does not change competition law as it applies to the NHS”, while David Gauke MP says, ‘No extension of European or domestic competition law as a result of the Health and Social Care Bill.” (Michael Fallon MP)

Response: Our legal opinion makes clear that, as things currently stand, the application of competition law to the NHS has not yet been fully tested in the courts, so it hasn’t yet been applied to the NHS. In fact, because of other changes to the NHS that have happened recently, it’s likely that competition law could be found to apply. However, our independent legal opinion also makes clear that the changes in the bill,

“will serve to reinforce that conclusion and introduce elements which make it even more likely that domestic and European competition law applies to the NHS.”

The full-scale application of competition law to the NHS has not been discussed by the Government. It’s not enough to simply state the Bill does not change competition law. If competition law is found applicable by the Court, our independent legal advice says there is nothing that can be done to limit the way in which it is applied to the NHS.

Other questions for MPs who have made this point:
– If the Bill makes no changes to competition law, does it currently apply or doesn’t it?
– If it does, what is the potential impact of competition law on the NHS? Has this been considered by the Government?
– Do you think that the new health bill will increase court cases involving the NHS? If not, why not?

Myth 4: The Secretary of State’s duty to secure provision of NHS services will be catered for in the new legislation.

Some MPs have said: ‘You wanted reassurance that the Secretary of State’s duty to secure provision of NHS services will not be abolished or passed to another body. I can confirm that the Bill, as amended, will not abolish this duty or pass it to another body.’ (Jonathan Lord MP, Greg Barker MP, Simon Burns MP)

Response:

This is misleading. Our independent legal advice found that that the bill removes the “duty to provide” services from the Secretary of State and places it instead on the unaccountable clinical commissioning groups (and then only as a duty to “arrange provision”).

This shift has a further consequence which is to create severance between the duty to promote a comprehensive health service and the duty to provide services since, under the Bill, the former will be held by the Secretary of State and the latter by the groups.

In addition, the Bill introduces a “hands off” clause that prevents the Secretary of State from stepping in unless it is essential.

Each of the above issues was explained in detail in the legal advice obtained by 38 Degrees. This is how 38 Degrees believes the Secretary of State washes his hands of the NHS and is not a concern that has been addressed.

Questions for MPs who have made this point: –

How will a comprehensive health service be guaranteed when the duty to provide the health service and decide on its scope is owed by consortia and not the Secretary of State and where the Secretary of State is required to grant the consortia maximum autonomy?

Myth 5 Lots of other groups think the bill is now OK.

Some MPs have said: ‘You will be aware that the significant amendments the Government is making to the Health and Social Care Bill have been welcomed by many organisations, including the NHS Confederation, patient groups, and think tanks.’ (Simon Burns MP, Robert Buckland MP, Justin Tomlinson MP)

Response: Some organisations do support the proposals, but lots of organisations are still really worried. Those that are still worried include organisations with a great deal of expertise in health, who would be on the frontline of the new system, like the Royal College of GPs, the BMA, as well as patients’ groups, like the MS Society.

Questions for MPs who have made this point:
– Are you concerned that the body that represents the people who’ll be delivering much of this – GPs – still doesn’t back the bill?
– What about the patients’ groups that are worried?
– Doesn’t their opinion matter?

If you want to pick up on the some of the specific points with your MP, you can send them an email by clicking here.