Health and Social Care Bill

The Health and Social Care Bill introduced to the House of Commons on 19 January 2011 gave effect to the policies set out in the Equity and excellence white paper.

The role of market mechanisms, the involvement of the private sector in providing NHS services and the scale of the reorganisation required to implement the white paper were all central to the debates at second reading and in committee.

The bill was heavily scrutinised during a marathon 28 sittings of the public bill committee, set up to scrutinise the legislation, but ultimately completed committee stage in the Commons with no opposition amendments accepted by the government.

Proposals

Role of the secretary of state

As introduced, the bill set out a framework, which directly conferred functions on the organisations responsible for exercising them, leaving the secretary of state with a duty to promote the comprehensive health service. The focus of the secretary of state was to shift to public health, with new duties to protect the health of the population.

Commissioning

The bill established the NHS Commissioning Board and GP consortia, to be responsible for commissioning the majority of health services, with legal duties to enable patient choice. It abolished strategic health authorities and primary care trusts. Health improvement functions would be the responsibility of local authorities.

Regulation

Part 3 of the bill outlined provisions for the economic regulation of the health and adult social care sectors, and set out Monitor's overarching duties and responsibilities.

Monitor was to have powers to ensure competition and patient choice would operate effectively through a system of provider licensing, designating essential services, setting pricing (in conjunction with the NHS Commissioning Board) and introducing arrangements for provider failure. Monitor was also to be given concurrent powers with the Office of Fair Trading (OFT) to apply the Competition Act 1998 (allowing Monitor to investigate anti-competitive practice) and the Enterprise Act 2002 (in relation to foundation trust mergers).

The bill also abolished the Health Protection Agency (HPA), transferred responsibility for biological substances and radiation protection to the secretary of state, and provided for cooperation arrangements across the devolved administration in relation to health protection matters.

Passage of the bill

The bill was raised during Prime Minister's questions on the day of its introduction, with Prime Minister David Cameron saying:

'We will listen very carefully to the professionals, but the reason for making modernisation of the NHS such a priority is simply that this country now has European levels of health spending but does not have European levels of success in our health service. Of course, what we want is a level playing field for other organisations to come into the NHS. What we will not have is what we had from Labour, which was a rigged market.'

At second reading, on 31 January 2011, the Secretary of State for Health, Andrew Lansley, suggested that the primary purpose was to 'improve the health of the people and the health of the poorest the fastest'. He criticised the Labour government's health reforms as having been piecemeal and incoherent, and argued that:

'The bill will change structures, abolish bureaucracy and inject added competition, but those are only the means to a much greater end. As large and complex as it is, there is one simple objective behind the bill - better care for patients, measured not by political targets but by real results for patients.' 

Debate

Part three of the bill was debated extensively during the second reading. Health Minister Simon Burns rebuffed accusations that the government wanted to privatise the NHS and that private sector involvement would undermine the public sector ethos of the NHS.

The opposition health spokesman, John Healey, suggested that the bill would create an NHS ruled by competition legislation:

'The debate at the heart of this bill is about whether full-blown competition, based on price and ruled by competition law, is the right basis for our NHS. That is why Labour members oppose this bill. We want the NHS run on the basis of what is best for patients, not what is best for the market. We want the NHS to be driven by the ethos of public service, not by the economics of forced competition. We will defend to the end a health service that is there for all, fair for all and free to all who need it, when they need it.'

Stephen Dorrell, chair of the Health Select Committee, argued that in order to deliver the required level of efficiency gains, the NHS had to deliver more effectively and engage clinicians more in NHS commissioning. He also argued that debate in the House of Commons should move on from discussing NHS structures, and that the bill represented an evolution of the policy developed by every secretary of state since 1990, with the sole exception of Frank Dobson. Dobson responded that NHS staff wanted to focus on looking after patients rather than being distracted by reorganisations, and said he made no apologies for the implementation of Labour's election manifesto being his priority as secretary of state.

Amendments

The public bill committee had 28 sittings between 8 February–31 March. There was a focus on the role of competition within the NHS, with a number of committee members citing concerns about the possibility of the private sector 'cherry picking' services or placing too great an emphasis on profitability. During the debates, none of the opposition amendments were accepted, and the government made a large number of amendments which were mostly minor and technical.

Of more significance were the following government amendments that were accepted:

• an amendment that removed Monitor's ability to set maximum pricing for treatments and services. The amendment was intended to remove the possibility of providers competing on price rather than on quality
• an amendment that removed Monitor's ability to vary prices according to whether a provider was in public or private ownership
• an amendment to permit the NHS Commissioning Board and GP consortia to provide grants to voluntary organisations
• amendments to narrow the scope for regulations, to require commissioners to promote competition. Instead, regulations could include provision relating to prohibiting anti-competitive conduct
• amendments that removed Monitor's power to direct the board or consortia to put services out to tender, where provision had been deemed inadequate.

Public health did not feature particularly strongly during the debates at this point in the process, but there were some concerns that public health budgets would not be protected once health improvement functions had transferred to local government from the NHS.

New clauses were introduced on the final day of the committee process, which clarified the process for water fluoridation. Local authorities were given responsibility for consulting and deciding on schemes that had previously been the role of strategic health authorities.

Concerns about the proposed health reforms

Liberal Democrats

The government's health reforms were debated at the Liberal Democrat spring conference on 12 March 2011, where delegates expressed hostility towards the Health and Social Care Bill and activists lobbied the leadership to amend the legislation.

The final report of the conference suggested that the government's aspirations could be achieved without adopting a 'damaging and unjustified market-based approach' to NHS reform, and suggested that the proposed reforms had never been Liberal Democrat policy and had not featured in the agreed coalition Programme for government, which committed to an end to large-scale top-down reorganisations of the NHS. Delegates passed a motion on 12 March 2011 which called on Liberal Democrat parliamentarians to amend the bill in a number of areas (particularly in relation to competition).

Liberal Democrat leader Nick Clegg promised the NHS would not be privatised and that the 'profit motive [would not] drive a coach and horses through the NHS'.

British Medical Association

At a special representatives meeting of the British Medical Association on 15 March 2011, a motion to reject the government's health reform plans, and the Health and Social Care Bill in its entirety, was tabled but rejected. However, 98% of delegates agreed that the BMA should continue to 'publicise and oppose the damaging elements of the bill'.

Health Select Committee

On 31 March 2011, the Health Select Committee welcomed the government's objective of decentralising power within the NHS and decreasing government intervention in everyday decision making. However, the committee pointed out that the public would continue to view the secretary of state as being responsible for the NHS and that the government should ensure that appropriate structures were in place to enable the secretary of state to respond to this political reality.

The committee supported the need for commissioners to be held accountable by the NHS Commissioning Board, as long as responsibility was devolved effectively. However, it was concerned that the Health and Social Care Bill was unlikely to achieve that balance. The committee further asserted that commissioners needed to have strong and authoritative voices in order to withstand pressures to centralise during times of challenge. It felt that the current proposals for GP commissioning consortia would not achieve this. The committee further noted some concerns about the fragmentation of primary and secondary care commissioning.

In June 2011, the government's response to the Health Select Committee gave assurances that the secretary of state would retain ultimate accountability for the NHS by meeting their duty to secure the provision of services, rather than securing services directly. The government explained that ministers would not be involved in the operational management of the NHS but instead their role would be to oversee the system and to hold the system stewards to account.