An update on the forthcoming Health and Care Bill

Posted on 18/05/2021 by Ed Hammond.

Last week we held a webinar for councillors and officers on the subject of the forthcoming Health and Care Bill. We were joined by colleagues in the Bill team at the Department for Health and Social Care, who heard the views of scrutiny practitioners about the likely changes which the Bill will bring about.

There is significant worry about the impact of the decision to remove the power for scrutiny committees to refer matters to the Secretary of State. The referral power has been lightly used over the years – but it provides a crucial backstop and a way to persuade health partners to engage, where otherwise they might be unwilling. The referral power provides a strong public voice in the decision-making system on changes to local health service, and a forum for local accountability. We agree with practitioners that its removal will cause concern.

The referral power is being essentially replaced by an ongoing power of intervention held by the Secretary of State unilaterally. The drawing in of more powers to the Secretary of State is a theme of the White Paper, and we can expect that this change will be made as part of the Bill – disappointing though this is.

The challenge lies in making the case for the creation of an equivalent power or set of powers, which gives local areas, local people and local scrutiny, the power to challenge and scrutinise decisions on major changes, within a system which still gives the Secretary of State discretion to act.

We think the scope for making this case is strong. It is right that the Bill will embed in statute a new collaborative working environment for health and care, under the umbrella of Integrated Care Systems. An environment of partnership and common working across the health and care “system” will be productive – and it is right that we see scrutiny as part of that system. But it is also right that we recognise scrutiny’s role here as one of challenge. Scrutiny can support the delivery of relevant and necessary services to local people by challenging those providing those services to account for their decisions and actions – and by so doing to improve things.

We think that there are a range of mechanisms, in Regulations and in statutory guidance, that can be put in place to provide this strong local assurance. We’ve suggested to DHSC a proportionate way for local scrutiny to escalate matters to the Secretary of State – we’ve also suggested ways that legislation could protect and build on the formal powers for scrutiny to secure information and attendance from health partners at scrutiny meetings.

We’re also keen to see legislation providing for the large amount of joint scrutiny that is likely to be undertaken in the coming years as ICSs come to develop change plans. It has been useful to get DHSC confirmation that the assumption remains that “place” level remains the most appropriate for most scrutiny, but it is the case that ICSs will be making strategic decisions which will require joint scrutiny – and proportionate mechanisms for that joint scrutiny to be carried out. In very large geographical areas (Cumbria and the North East for example) this is prove a challenge, and support from the ICS and other health partners will be needed to ensure that this form of health scrutiny is sustainable.

Now, we are waiting for the Bill to be published. This is something we expect to happen in the next fortnight. When it does we’ll provide a further update. In the meantime, we would encourage you to get in touch to share your thoughts on the White Paper, the Bill and what more we can do to support the health scrutiny function.

For more on this, you can read our February position paper (which goes into much more detail) and our ideas on what new legislation on health scrutiny could look like. We have also published a short response to the Government’s consultation on the System Oversight Framework in the English NHS for 2021/22.