NHS: legal advice for Lords

Photograph by UK Parliament (Flickr)

Over the summer, 3,652 38 Degrees members from across the UK donated to pay for a legal team to get to the bottom of Andrew Lansley’s plans for our NHS. Over two months, our legal team examined the NHS plans in details, looking closely at the two issues 38 Degrees members were especially concerned about:

1) The Secretary of State’s duty to provide a national health service

2) Increased risks to the health service because of changes affecting competition and procurement

You can read or download their original advice here.

Now the bill is passing through the House of Lords and many amendments have been proposed. Some of these aim to address the problems highlighted in our legal advice.

Amendments to clauses 1 and 2 of the Bill are being examined by the Lords on Tuesday. Clause 1, in particular, is a key (but by no means the only) part of the Secretary of State’s “duty to provide”. So we’ve asked our legal team to look again at the bill, and the amendments currently proposed, and give their verdict on whether or not any of these amendments would address the concerns of 38 Degrees’ members about the “duty to provide”.

Where the proposed amendments do not adequately address concerns, we have asked our legal team to suggest alternatives. You can read their analysis below. Of course, competition and procurement issues remain important but these aren’t directly addressed by Clauses 1 and 2 of the bill.

Download a PDF of the latest briefing here.

Here’s the full text of the briefing:

Legal Analysis of the Clause 1 Amendments

Clause 1 amendments

This Briefing comments on:

(1) the Williams, Thornton and Mackay ‘duty’ amendments to Clause 1 (section
1(2)) relating to the duty to provide – Page 2, lines 2-4
(2) the Thornton ‘definition’ amendment to Clause 1 relating to a definition of
the health service in England – Page 2, line 7
(3) the absence of any tabled amendment to Clause 1 (secton 1(3)) relating to
services being free of charge

(1) the Williams, Thornton and Mackay amendments to Clause 1 (secton 1(2)) relating
to the duty to provide – Page 2, lines 2-4

The Williams duty amendment – tabled by Baroness Williams of Crosby, Lord Patel and
Baroness Finlay of Llandaff – is as follows:

Page 2, line 2, leave out subsection (2) and insert—
“( ) The Secretary of State must for that purpose provide or secure the provision
of services according to this Act.”

Of the three amendments currently tabled in relation to Clause 1: section 1(2) (as at 21
October 2011), the Williams amendment might appear the strongest, as it declares
clearly the Secretary of State’s duty to provide or secure provision of services in
accordance with the Act. It achieves this by almost exactly reproducing the current
secton 1(2) of the National Health Service Act 2006 – though it changes “in accordance
with” to “according to”, and whether there is any difference in meaning between these
two phrases is unclear.

However, the amendment on its own is not enough, because just like the current
secton 1(2), it is not a stand-alone duty: it would depend for its meaning on other
provisions of the Act. And because no other provision of the Bill currently requires the
Secretary of State to provide or secure provision of health services, then without other
changes, namely to Clause 10, it would be essentially without any real effect.

The Thornton duty amendment – tabled by Baroness Thornton, Lord Hunt of Kings
Heath and Baroness Finlay of Llandaff – is as follows:

Page 2, line 3, after “to” insert “provide or”

This amendment is weaker than the Williams amendment, because it would accept the
replacement of the current section 1(2) with the proposed section 1(2) in Clause 1, and
add in provision, as well as securing provision, so that if the amendment was accepted
the new section 1(2) would read: “For that purpose, the Secretary of State must exercise
the functions conferred by this Act so as to provide or secure that services are provided
in accordance with this Act.”

Essentially though, this is the wording (with the exception of ‘provide or’) that the
Constitution Committee considered, and really adds nothing of substance. Again, the
addition of the words “or provide” attach to nothing if the Secretary of State has no
other functions which require him/her to provide services.

The Mackay duty amendment – tabled by Lord Mackay of Clashfern – is as follows:

Page 2, leave out lines 2 to 4 and insert—

“(2) For that purpose, the Secretary of State—

(a) retains ultimate responsibility to parliament for the provision of the health
service in England, and
(b) must exercise the intervention and other functions of the Secretary of State
in relation to that health service so as to secure that services are provided in
accordance with this Act.”
Page 2, line 7, at end insert—
“(4) For the purposes of this section, the intervention functions of the Secretary
of State in relation to the health service in England are the functions of the
Secretary of State under—

(a) section 13Z1 (failure by the Board to discharge any of its functions),
(b) section 253 (emergency powers),
(c) section 82 of the Health and Social Care Act 2008 (failure by Care Quality
Commission to discharge functions),
(d) section 67 of the Health and Social Care Act 2011 (Monitor: failure to perform
functions),
(e) section 242 of that Act (failure by NICE to discharge any of its functions),
(f) section 266 of that Act (failure by the Information Centre to discharge any of
its functions), and
(g) section 285 of that Act (breaches of duties to co-operate).”

The Mackay amendment is both dangerous and enlightening. It introduces a politcal,
rather than a legal, statement as subsection (a), which is unlikely to get past the
Parliamentary draughtspersons. More importantly in (b) it makes clear that the focus of
the new section 1(2) is intervention by the giving of directions in the event of seven
listed circumstances of failures, emergencies and breaches of duty to cooperate. This is

a far cry from the current section 1(2), and demonstrates the government’s intention of

removing the Secretary of State’s duty to provide or secure provision of health services

in England.

Although the Mackay amendment also refers to other functions, in this regard it is just
like the government’s proposed section 1(2) in Clause 1, and offers nothing.

What should be done about section 1(2)?

The scheme of the Bill is to get rid of the government’s duty to provide or secure
provision of health services in England. This current duty is based on secton 1(2) and, in
partcular, section 3(1) of the 2006 Act. By removing the Secretary of State’s duty to
provide in secton 3(1), the reference to that duty in secton 1(2) becomes virtually
meaningless. These two subsections therefore need to be considered together.

The Williams amendment would appear to be equal to the job of maintaining the
current positon, if the Secretary of State’s duty to provide was retained in secton 3(1).
The Thornton and Mackay amendments would not be equal to the job in that event,
because they do not depend on section 3(1) for their meaning and effect (but equally, if
the Secretary of State’s duty to provide was retained in secton 3(1), there would be no
sense in the government’s proposed section 1(2)).

If the Secretary of State’s duty to provide was not retained in secton 3(1) – as is
currently proposed in Clause 10 – then it is difficult to see how the current position
could be maintained, without giving duties to provide or secure provision to the NHS
Commissioning Board and clinical commissioning groups.

For example, section 1(2) could read:

“The Secretary of State must for that purpose provide or secure provision of
services throughout England [according to][in accordance with] this Act, and the
exercise of the functions of the NHS Commissioning Board and clinical
commissioning groups shall be regarded as exercised by the Secretary of
State.”

This wording would mirror the current section 3(2):

“services provided under—

(a)section 83(2) (primary medical services), secton 99(2) (primary dental

services) or secton 115(4) (primary ophthalmic services), or

(b)a general medical services contract, a general dental services contract

or a general ophthalmic services contract,

must be regarded as provided by the Secretary of State.”

But it is weaker than presently because the Board and CCGs do not provide or secure
provision.

Another possible formulation of secton 1(2) might therefore be:

“The Secretary of State must for that purpose provide or secure provision of

services throughout England [according to][in accordance with] this Act, and the

exercise of the functions of the NHS Commissioning Board and clinical

commissioning groups shall be regarded as exercised in furtherance of that

duty.”

But this is still not enough – because under the current system, PCTs have the duty to
provide or secure provision (through delegation, but also in some specific circumstances
directly) and when they commission, there is always the backdrop of that duty. If the
exercise of Board and CCG functons was to be regarded as being in furtherance of the
Secretary of State’s duty, there would still be a gap in the statutory scheme, because
CCGs and the Board do not have a duty to provide or secure provision.

The conclusion that must be reached is that it is difficult to see how, if the Secretary of
State’s duty to provide under section 3(1) is repealed, an amendment to section 1(2)
along the above lines would be sufficient to maintain the current position.

Whatever amendment is made to s1(2) it must be recognised that it cannot be amended
to give it the strength it now has in the 2006 Act, simply because the major function of
the Secretary of State to which s1(2) applies, namely the duty to provide in s3, is being
repealed.

(2) the Thornton ‘definition’ amendment to Clause 1 relating to a definition of the
health service in England – Page 2, line 7

The Thornton definition amendment – tabled by Baroness Thornton and Lord Hunt of
Kings Heath – is as follows:

Page 2, line 7, at end insert—
“( ) For the purposes of this Act “the health service in England” is defined as
those services provided under section 3 of this Act.”

This would be a disastrous definiton of the health service in England because the
services listed under the proposed new section 3 do not provide a comprehensive
definition of the NHS: health services would also be provided under several other
sections, including sections 2A, 2B and 3A, and under Schedule 1. But we suspect that it
is a probing amendment, and that it helpfully raises the question of what the health
service in England would consist of if the Bill was enacted.

Currently there is no definiton, and it would seem to make sense to include one – not
least because the proposed changes to section 1(3) would mean that the qualified

guarantee of free access to health services would apply in future to ‘services provided as
part of the health service in England’. At present, section 1(3) guarantees free access to
services “so provided” by the Secretary of State pursuant to his duty to provide or
secure provision in accordance with the Act under section 1(2).

It is also necessary to be clear that services provided under public health functions
(Clause 8: section 2A, and Clause 9: section 2B) are also part of the health service. But at
the moment, for the purposes of Part 3 of the Bill (relatng to Monitor, Competition,
Licensing, Pricing etc. – Clauses 58 – 147), it is provided in Clause 60(4) as follows:
“ ‘the NHS’ means the comprehensive health service continued under section 1(1) of the
National Health Service Act 2006, except that part of it that is provided in pursuance of
the public health functions (within the meaning of that Act) of the Secretary of State or
local authorites.”

This seems to imply that public health services are part of the health service – but
obviously they would not be covered by the Thornton definition amendment.

However, it remains unclear why there should be a definition of the NHS for the
purposes of Part 3 which is different to the rest of the Bill. Put another way: why does
the NHS mean something different from the ‘health service in England’, at least for the
purposes of competition, pricing and the like in Part 3?

Clause 11: new section 3A would confer a power on CCGs to arrange services for the
purposes of the health service. These would also be excluded by the Thornton
amendment.

It would therefore be wise to clarify these issues before adopting a definition of the
health service in England.

(3) the absence of any tabled amendment to Clause 1 (secton 1(3)) relatng to services
being free of charge

It is of concern that no amendment has been tabled (as at 21 October 2011) in relation
to Clause 1: section 1(3).

At present, section 1(3) of the 2006 Act reads:

“(3) The services so provided must be free of charge except in so far as the

making and recovery of charges is expressly provided for by or under any

enactment, whenever passed.”

Under Clause 1, this would read:

“(3) The services provided as part of the health service in England must be free

of charge except in so far as the making and recovery of charges is expressly

provided for by or under any enactment, whenever passed.”

 

The differences between the two are highlighted.

If the current positon is to be maintained, secton 1(3) should not be changed. If the Act
is amended, this makes a comprehensive definition of the health service in England,
even more crucial.