Today
Sun 5 December 2021

What is in the new Health and Social Care Bill? How will it change the NHS and what do those changes mean? And what’s missing from the Bill? Read on to find out…

The Health and Social Care Bill returns to the House of Commons this week. The new plans have proven controversial, with critics arguing that it opens the door to private sector interests and places more power in the hands of the Secretary of State. 

But what is the Bill proposing? And how will it change our NHS in its current form?


New Powers to the Health Secretary 

The Bill unambiguously puts the Health and Social Care Secretary – currently Sajid Javid – in charge of both the overall system, of each Integrated Care System (more of them later) and of the NHS Commissioning Board (currently known as NHS England). 

This proposal was introduced when Matt Hancock was in charge of the Department, leading to Health and Policy Institute editor Andy Cowper remarking how the former minister “looked at all the NHS’ problems and said, aha, I think the answer to this is more me, more Matt Hancock.”

The Bill gives the Secretary of State more power to intervene at any point of an NHS reconfiguration process, while a new process enables them to intervene earlier and enable speedier local decision-making. Sajid Javid and his successors will also have the ability to amend or abolish existing arm’s length bodies via a Statutory Instrument following formal consultation.

This involves removing NHS Foundation Trusts’ independence. The system for developing Trusts will also be removed. Instead, Javid will have powers to create new NHS trusts.

The Secretary Of State will have powers to mandate water fluoridation and intervene on the quality of hospital food.

The British Medical Association (BMA) has expressed reservations about the increase in powers, not least because the Bill gives the Department of Health and Social Care more control over the collection and storage of patient data.

“The focus of the Bill must be on increasing ministerial accountability, rather than power, in respect of the NHS,” it stated.

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Integrated Care Systems and their Boards

Legally-mandated Integrated Care Systems will soon be managing local healthcare systems, replacing the Clinical Commissioning Groups (CCGs) introduced under former Health and Social Care Secretary Andrew Mitchell. 

Each system has an Integrated Care Board (ICB) which will be responsible for commissioning and bringing together local NHS and local government services, such as those covering social care and mental health. Each board’s membership will consist of: a chair; a chief executive; a member who is jointly nominated by NHS trusts and foundation trusts; a provider of primary medical services such as a GP; and a representative from the local authority. 

As part of the extension of ministerial power, the chair of the ICB will be approved by the Secretary of State. 

ICBs can also invite other members, including representatives from private companies. This, campaigners warn, opens up the door to increased private sector influence in the health service, as board members will have decision-making power over where funding is allocated. 


ICBs and the Core Responsibility

Integrated Care Boards will be given a “core responsibility” for a certain group of people. To understand what this change means, it helps to look back to 2012’s Bill, where each CCG had a duty to arrange provision of key services “for persons for whom it has responsibility”. This meant people who were provided with primary medical services by a CCG member, such as your GP practice, and others who usually reside in the CCG’s area, such as your city or town.

The new Bill differs in that it adds in the word “core” before “responsibility.” 

ICBs will only have a “core responsibility” to arrange healthcare provision for a “group of people” in accordance with enrolment rules made by NHS England.

Professor Allyson M Pollock and Peter Roderick have suggested that this new terminology evokes “the US definition of a health maintenance organisation which provides ‘basic and supplemental health services to its members.’” 

Campaigners are warning that the focus on core responsibility could risk facilitating a drift towards an NHS that is reduced to a safety net for those most in need. 


Removal of Statutory Duty on Secondary Healthcare

Between the founding of the NHS and 2012, the Government had a qualified legal duty to provide hospital services throughout England – before the 2012 Health and Social Care Act abolished this and CCGs were given a duty to arrange provision of medical and other key services and facilities. This included nursing and ambulance services, hospital, and other accommodation. 

The new Bill passes this duty onto ICBs – except in the cases of secondary healthcare such as medical services or hospital care. As a result, there would be no duty on ICBs to arrange secondary medical services with NHS Trusts or NHS Foundation Trusts, or, for that matter, private providers. Choosing to arrange such services would mean ICBs exercising their power, rather than acting under an obligation. 

The reasons for this measure have not been explained.


An End to Public Tendering 

The BMA has long called for an end to “requirements around enforced competition through the automatic tendering of NHS services”.

Now, the Bill risks replacing an unpopular system with an even more opaque one, not least because it allows ministers to circumvent normal procurement procedures. 

The pandemic saw the Government awarding contracts to cronies – often leading to inefficient procurement practices. Byline Times uncovered how £3 billion worth of contracts for personal protective equipment (PPE) and testing, among others, were awarded to Conservative friends and donors.

According to the BMA, the most effective way to ensure transparency and scrutiny over contracts “is to make the NHS the default option for NHS contracts and to tender competitively where this is not possible”. However, there is every possibility that under the new Bill, private companies providing services will have the opportunity to extend their contracts or even be awarded new contracts without competition.

Other areas covered by the Bill include reforms to social care, a new obesity strategy, a new national medicines registry, and extending the scope of the professions who can be regulated using powers from the Health Act 1999.


What the Bill Does Not Address

The Bill is facing criticism for failing to grapple with the workforce shortage in the NHS, merely asking for the Health and Social Care Secretary to publish a report detailing workforce planning every five years. 

In February, NHS hospitals, mental health services and community providers were reporting a shortage of nearly 84,000 FTE staff. This includes 39,000 unfilled nursing posts in England, with one in 10 nursing posts unfilled on acute wards in London.

GPs are also facing a staffing crisis, with a shortage of 2,500 FTE GPs. Projections suggest this gap could increase to 7,000 within five years if current trends continue. A shortage of GPs has a knock-on effect, putting more pressure on hospitals and emergency services.  

Neither is the issue of capital and backlog maintenance mentioned. This comes after the Infrastructure and Projects Authority warns that the Government’s plan to build 40 hospitals by 2030 is unachievable. The proposal has been criticised since the beginning after it was revealed that most of the hospitals in question were not “new”, but rebuilds or consolidations of existing projects.

In its current form, the Bill remains silent on charging migrant people for healthcare services, with Labour’s Apsana Begum proposing an amendment to review NHS charging.

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