The Health and Social Care Act 2012 received royal assent on 27 March 2012 after a turbulent passage through Parliament. Many of the central themes of the health and social care bill as introduced to Parliament remained in place in the final act. The act gave effect to the policies and vision for a reformed health service set out in the 2010 white paper, Equity and excellence: liberating the NHS.
The act set out a framework in which functions in relation to the health service were conferred directly on the organisations responsible for exercising them. The act established the NHS commissioning board and clinical commissioning groups (CCGs), transferred responsibility for health improvement to local authorities, established health and wellbeing boards and abolished strategic health authorities (SHAs) and primary care trusts (PCTs). The act also set out the system of regulation for health and adult social care services. In comparison with the original bill as presented in Parliament, the term ‘economic regulation’ was replaced with ‘sector regulation’.
Part 1 of the act set out a framework in which functions in relation to the health service were conferred directly on the organisations responsible for exercising them. The Secretary of State for Health continued to be under a duty to promote a comprehensive health service. The Secretary of State for Health would be accountable for the system through a new duty to keep the effectiveness of national bodies under review. Part 1 established the NHS commissioning board and Clinical Commissioning Groups (CCGs), as well as abolishing strategic health authorities (SHAs) and primary care trusts (PCTs).
Part 2 dealt with a number of provisions relating to public health including the abolition of the Health Protection Agency (HPA) and the transfer of its functions to the Secretary of State for Health. Part 2 also included provisions relating to biological substances and radiation protection, the repeal of the AIDS (Control) Act 1987 and outlined duties for cooperation with bodies exercising functions in relation to public health. Part 2 abolished the Health Protection Agency (HPA). HPA functions were transferred to the Secretary of State when it was established under the act on 1 April 2013.
Part 3 of the act covered the regulation of health and adult social care services. It set out provisions for the regulation of health and adult social care services in England and defined the role of the sector regulator, Monitor. The act outlined that Monitor’s overriding duty would be to protect and promote the interests of patients by promoting economy, efficiency and effectiveness in the provision of healthcare while maintaining or improving quality.
With respect to competition, Monitor was 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. The act gave Monitor powers to:
- run a system of licensing of providers of NHS services
- set and enforce requirements to secure continued provision of NHS services
- regulate prices for NHS services through a national tariff in conjunction with the NHS commissioning board
- secure continuity of NHS services provided by companies through a process of ‘special administration’ and establish funding mechanisms to enable trust special administrators to secure continued access to NHS services
- establish funding mechanisms to enable trust special administrators appointed to foundation trusts and health special administrators appointed to companies to secure continued access to NHS services .
The Act provided powers to the Secretary of State to make regulations imposing requirements on the NHS Commissioning Board and clinical commissioning groups to ensure good practice in relation to the procurement of NHS health care services. The regulations required commissioners to prevent anti-competitive behaviour and to ensure the protection of patients’ rights to make choices.
Part 4 of the act set amended the framework for the governance and management of NHS foundation trusts and NHS trusts. The act removed various restrictions on foundation trusts and clarified the role of foundation trust directors and governors, with governors having a strengthened role in holding directors to account. The act increased the autonomy of foundation trusts by repealing the private patient income cap, effectively allowing foundation trusts to increase their private income to 49%. However, where a foundation trust proposed to increase private income by 5% or more in any financial year, the trust would require more than 50% of the council of governors to approve the proposal. The foundation trust would also be required in its annual report to explain the impact of private provision on its core NHS activity. An NHS foundation trust would only be able to enter into a ‘significant’ transaction if more than half of the members of the council of governors of the trust voting approved entering into the transaction.
The act also amended the failure regime for NHS foundation trusts and introduced a new administration regime for private independent providers of NHS-funded care. Under the Health Act 2009, there was a process for foundation trusts to become ‘de-authorised’. As this was inconsistent with the government’s policy for all trusts to become foundation trusts, the act repealed the provisions for de-authorisation. The trust special administration process was amended for foundation trusts. The provisions in the 2012 act would allow Monitor to appoint and oversee the work of a trust special administrator (TSA) to take control of the affairs of a foundation trust if Monitor was satisfied that a foundation trust had become or was likely to become unable to pay its debts. The act introduced an objective for TSAs to secure the continued provision of NHS services.
Part 5 of the Act established a new national body, Healthwatch England, and made provision for local Healthwatch organisations. The act established Healthwatch England as a statutory committee within the CQC and gave it powers to advise and provide information to the secretary of state, the NHS commissioning board, Monitor, local authorities and the CQC on the experiences of service users. Local Healthwatch organisations would take on the functions previously carried out by Local involvement Networks (LINKS) and help to provide patient feedback at a local level.
Part 5 also established health and wellbeing boards and outlined their role in preparing the joint strategic needs assessment, the joint health and wellbeing strategy and the boards’ role in promoting joint working.
Part 6 of the act revised provisions relating to medical, dental, ophthalmic and pharmaceutical services to reflect the creation of the NHS Commissioning Board, CCGs and the abolition of PCTs and SHAs.
Part 7 provided for the abolition of the General Social Care Council and transfer of some of its functions to the Health and Care Professions Council. It also renamed the Council for Healthcare Regulatory Excellence as the Professional Standards Authority for Health and Social Care.
Part 8 set out the functions and duties of the National Institute for Health and Care Excellence (NICE). The act re-established the National Institute for Health and Clinical Excellence as a non-departmental body (thereby giving the organisation more independence) and renamed it as the National Institute for Health and Care Excellence. The act outlined a new role for NICE in the development of quality standards and the provision of guidance and advice.
Part 9 re-established the Health and Social Care Information Centre special health authority as a non-departmental public body and outlined its powers and general duties. This part also set out how the Secretary of State or the NHS Commissioning Board might prepare and publish information standards, and set out powers for the Information Centre to require or request information to be provided to it by anyone providing publicly funded health services or adult social care.
Part 10 covered the abolition of certain public bodies, and part 11 covered miscellaneous topics such as information relating to births and deaths, and the arrangements with devolved authorities.