Health and Social Care Bill

September 8, 2011 2:56 PM

This week a debate and votes took place to agree the amendments which were proposed
following the NHS Listening Event and the recommendations made by NHS Future Forum
and amendments tabled by the Opposition, before the Bill goes to the House of Lords. I
know many of you are interested in our NHS and I am taking the opportunity to let you
know how I voted and why.

I should start by saying that it is vital that we make changes to the NHS swiftly; it is suffering
in this current state of limbo.

The Government made 181 amendments to the Bill as a result and I welcome these
changes. Key changes include:
• Nurses, consultants and lay people to be included on the boards of new GP groups,
Clinical Commissioning Groups, responsible for commissioning healthcare services;
• Stronger safeguards against a "market free-for-all", with the regulator Monitor
required to protect patient interests and not to promote competition as an end in
• Additional safeguards against privatisation and to prevent private
companies "cherry-picking" profitable NHS business;
• Extending the 2013 deadline for the introduction of commissioning groups, which
will only become operative "when they are ready".

I support these amendments. The result of this is a vastly improved Bill guaranteeing that
the interests of patients are always put first and ensures that there will be no privatisation
of the NHS and no special favours to the private sector.

There has been a lot of concern about the roles of the private and voluntary sector. Both
the private and voluntary sectors have always been involved in the NHS; the new
amendments to the Bill prevent the growth of the private sector over existing state

Concern has also been expressed regarding competition within the NHS and the role of
private companies. In terms of EU competition laws, the Health and Social Care Bill has
maintained the same competition rules established by the last Government. This Bill does
not change the rules governing EU competition law within the NHS. Also due to the changes
secured by the Liberal Democrats, private providers will now only be allowed to compete
for a limited range of services covered by national or local tariff pricing, to ensure
competition is based on quality; and not price. Clinical commissioning groups will not be
able to delegate their statutory functions to private companies.

It is my view that the recent amendments to the Bill, which place an emphasis on quality
rather than price and the transformed position of Monitor are reassuring. There are still
some ambiguities regarding competition and choice. My Liberal Democrat colleagues and I
are concerned about the removal of the cap on private beds in foundation hospitals and are
seeking further reassurances on this.

I know there has been a lot of public concern over the Secretary of State's role and whether
this amounts to a duty to provide or secure the provision of health services. Many people
have been concerned that the Bill will allow the Secretary of State to "wash his hands" of
responsibility for commissioning within the NHS, I can assure you that this is not the case.
However, the Bill had not made this clear and I sought clarification from Mr Lansley, Health
Secretary. He responded saying that the Department of Health is not a provider of health
services and hasn't been for years. The vast bulk of our local health services now are not
provided directly by the Government. They are commissioned (purchased) by our local
Primary Care Trusts from a range of bodies. (Dentists, GPs, Hospitals, private healthcare
etc). The new wording reflects this, however the Secretary of State's accountability and
responsibility for the NHS continues.

Public interest has been heightened by the legal opinion obtained by Stephen Cragg, on
behalf of 38 Degrees, on the role of the Secretary of State. Importantly he restricts himself
to detailed legal argument and doesn't mix up legal arguments with general observations on
the wisdom of the reforms. It's a proper legal opinion and one is grateful for it. However, it
is an opinion or interpretation of the law and the Government's opinion is different.

The Bill retains the legal requirement that services be free of charge (except where already
specified) and now includes requirements as to securing continuous improvement in the
quality of services provided. It also promotes research and the use of evidence learned from
research, and for the first time ever, promotes the need to reduce health inequalities. It
would therefore be impossible for the Secretary of State to "wash his hands" of the NHS,
whilst he remains legally required to deliver all of the duties outlined above. Crucially, the
Secretary of State also retains the duty to promote a comprehensive health service, which
dates from the founding NHS Act of 1946. That duty has stood the test of time for 60 years
and has been unchanged by this Bill. The Secretary of State will have the duty to secure that
services are provided for that comprehensive health service, and will have failed in his duty
if they are not.

However, I understand that despite all these existing provisions in the Bill there are still
concerns regarding the role of the Secretary of State. It is understandable, given that we are
talking about the future of our most treasured national institution, that people express such
concerns and are not willing to tolerate even a sliver of doubt about the safety of the NHS in
the future. That's why my Liberal Democrat colleague, Health Minister Paul Burstow,
announced in Parliament that the Government are willing to listen to the concerns that
have been raised and, if necessary, offer clarifications or make amendments to put beyond
legal doubt that the Secretary of State remains responsible and accountable for the
comprehensive health service we all want to see."

The Bill is not perfect and I, like some of my colleagues, would like to see some further
changes made to it. There are also still some ambiguities regarding competition and choice
and I will continue to seek greater clarity on these points. I still have outstanding questions
which I have put to Andrew Lansley:
• Whether private health companies will be able to take new NHS commissioning
groups to court if they do not win contracts;
• What arrangements are in place to cover the scenario of a private healthcare
provider going out of business at short notice or a voluntary provider folding? This
could happen at the moment with any of the current private providers;
• A request for clarification of the consultation process required when an
NHS Foundation Trust proposes significant service change; that is, an FT-led
reconfiguration process, rather than one led by the service commissioners. The

understanding is that Monitor will assess whether the FT is seeking to substantially
alter its Terms of Authorisation and, if so, Monitor treats the matter in the same way
as the establishment of a new FT. If this is indeed the case, it would be a cause for
concern because Local Authority Health Overview and Scrutiny Committees have
no power of referral to the Secretary of State over the establishment of an NHS
Foundation Trust;

What would you like to do next?