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National Health Service Reform And Health Care Professions Bill


 

These notes refer to the National Health Service Reform and Health Care Professions Bill
as introduced in the House of Commons on 8th November 2001 [Bill 47]

NATIONAL HEALTH SERVICE REFORM AND HEALTH CARE PROFESSIONS BILL


EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the National Health Service Reform and Health Care Professions Bill as introduced in the House of Commons on 8 November 2001. They have been prepared by the Department of Health in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY

3.     In July 2000 the Government published The NHS Plan: A plan for investment, A plan for reform in which was set out a ten-year plan for the reform of the health service in England. Action has since been taken to implement many of the proposals set out in that document. Many of the legislative proposals were implemented through the Health and Social Care Act 2001.

4.     In summer 2001, the Government elaborated on key proposals from the NHS Plan in published documents: Shifting the Balance of Power within the NHS - Securing Delivery and Involving Patients and the Public in Healthcare. In the light of the comments received in response to those documents, this Bill takes forward those of the proposals which require primary legislation.

5.     In July 2001, the Report of the Bristol Royal Infirmary Inquiry was published. It made a number of recommendations including some requiring legislation. A full

[Bill 47-EN]     53/1

Government Response to the Report will be published in due course. In the meantime, this Bill provides for change in relation to two of the areas covered in the Report: the role of the Commission for Health Improvement, and the regulation of the health care professions. On the latter, the Government's proposals were published in August 2001 in the consultation document Modernising Regulation in the Health Professions.

6.     The document Improving Health in Wales, published by the National Assembly for Wales in February 2001, signalled the intention to abolish the existing five Health Authorities in Wales on 31st March 2003 and extend and develop the role of the existing Local Health Groups (LHGs) which were established in April 1999 as sub committees of the Health Authorities to implement health improvement and local action plans through effective partnership working with local organisations and the public. Instead, it envisages the creation of Local Health Boards (LHBs), to which the National Assembly for Wales may delegate the functions of Health Authorities in Wales once they have been abolished.

7.     The Bill provides for amendment of the structural framework of the health service in England and separately in Wales (see below). It provides, in relation to England, for Health Authorities to be renamed as Strategic Health Authorities. It also provides for most of the functions of Health Authorities to be conferred instead onto Primary Care Trusts (PCTs), and for health service resources to be allocated directly to PCTs by the Secretary of State. The intention is that service planning will in future be undertaken by PCTs, with Strategic Health Authorities providing the performance management function for the health services provided within their boundaries.

8.     In relation to Wales, the Bill provides for the creation, functions and funding of Local Health Boards (LHBs), in effect to extend the current role of Local Health Groups. The Bill also provides for a duty to be placed on each LHB and each Local Authority in Wales to formulate and implement a 'health and well-being strategy' for the population in the area, and to have regard to the strategy in exercising their functions. The Bill also empowers the National Assembly for Wales to make regulations imposing a duty on Local Health Boards and Local Authorities to co-operate with other persons and organisations in formulating their strategy. These other bodies may include NHS trusts, Community Health Councils, voluntary bodies and local businesses.

9.     The Bill provides for new arrangements aimed at strengthening the Commission for Health Improvement (CHI) and its independence. CHI was established by the Health Act 1999 to carry out independent reviews of the arrangements for monitoring and improving the quality of health care by NHS bodies and other NHS service providers. The Bill makes it clear that the definition of 'quality' extends to the patient environment. It provides for CHI to inspect and report on NHS services, and that CHI may recommend to the Secretary of State that special measures should be taken where services are of unacceptably poor quality or are failing. The Bill provides that certain of CHI's functions in relation to the collection and analysis of data and performance assessment may be carried out by what will be known as the Office for Information on Health Care Performance. The Bill provides for CHI to appoint its own chief executive and requires CHI to make an annual report on the quality of NHS services, which the Secretary of State must lay before Parliament.

10.     The Bill provides for the abolition of Community Health Councils in England and the Association of Community Health Councils of England and Wales. It also provides for the creation of an independent 'Patients' Forum' for every NHS trust and PCT in England, to perform an inspection, monitoring and representation role on behalf of patients and public. The Bill provides for the establishment of the Commission for Patient and Public Involvement in Health to report to the Secretary of State on how public and patient involvement mechanisms are working. It will have responsibilities at local level - to facilitate the co-ordination of Patients' Forums and to provide their administrative support, and to engender and promote the involvement of the public in local decisions that affect their health.

11.     In addition, the Bill establishes a duty of partnership on NHS bodies and - through the Home Secretary - the prison service, to work together in carrying out their functions as they relate to health services for prisoners. It also makes provision for the NHS and the prison service to work together to fulfil their functions more effectively, paralleling the joint working arrangements that already exist, under section 31 of the Health Act 1999, between NHS bodies and local authorities. Under these provisions, prisons and their local NHS partners will - subject to approval by the Secretary of State - be able to pool funding for health services to prisoners, and prisons will be able to make arrangements to delegate health care functions to NHS bodies (and vice versa).

12.     The Bill provides for the creation of a Council for the Regulation of Health Care Professionals ("the Council") to oversee the activities of the various regulatory bodies of the health care professions. It provides for the Council to co-ordinate good practice guidelines and other aspects of the regulatory bodies' work, and for it to encourage the regulatory bodies to act in the interests of patients. Specifically, the Council will oversee the General Medical Council; the General Dental Council; the General Optical Council; the General Osteopathic Council; the General Chiropractic Council; the Royal Pharmaceutical Society of Great Britain; the United Kingdom Central Council for Nursing, Midwifery and Health Visiting and the Council for Professions Supplementary to Medicine, as well as the successors to the latter two bodies. The Bill provides for the Council to have the right of appeal in cases determining a practitioner's fitness to practise or examining whether there has been an instance of professional misconduct where the decision of a regulatory body seems to be harmful to the protection of the public.

13.     The Bill also deals with other aspects of the regulation of health care professionals. It provides for appeal cases in relation to 'fitness to practise' issues to be transferred from the Judicial Committee of the Privy Council to the High Court in respect of those professions where this is not already the case. This will bring consistency in these procedures to all the professions. A further provision extends the powers conferred by section 60 of the Health Act 1999 (which deals with the modification of legislation governing the regulation of health care professions) to bring) to bring those powers in respect of the pharmacy profession more into line with the other health care professions.

THE BILL

14.     The Bill is in three parts:

Part 1 makes changes to the way the NHS is managed and funded, including the creation of Strategic Health Authorities by the renaming of Health Authorities, the distribution and allocation of functions between Health Authorities and Primary Care Trusts (PCTs) and the allocation of funding in England. For Wales, it deals with the establishment and funding of Local Health Boards and a duty to devise health and well-being strategies. Part 1 also extends the role of the Commission for Health Improvement (CHI), reforms the structures for patient and public involvement in the NHS, and provides for joint working between NHS bodies and the prison service.

Part 2 covers the regulation of the health care professions: the establishment and functions of The Council for the Regulation of Health Care Professionals; the transfer of some 'fitness to practise' appeals from the Privy Council to the High Court; and a modification of the powers conferred by section 60 of the Health Act 1999 as it affects the regulation of the pharmacy profession.

     Part 3 deals with various miscellaneous and supplementary provisions.

15.     Part 1 is concerned with the National Health Service. It changes the structure of the health service and the way in which it is funded. It changes the ways in which patients and the public are involved. It changes the ways in which the NHS works with the prison service. It extends the role of CHI. Clauses 1 to 5 are designed to pave the way for the structural change. Clause 1 changes the name of Health Authorities in England to Strategic Health Authorities. Many functions of Health Authorities will, as part of these changes, be re-allocated to PCTs who will become the lead NHS organisation in assessing need, planning and securing all health services and improving health. Clause 2 places upon the Secretary of State a duty to create PCTs for all areas of England. Clause 2 also removes the existing option for the National Assembly for Wales to establish PCTs in Wales which has never been exercised and which is to be replaced in this Bill by a power to establish Local Health Boards (see clause 6). Clause 3 makes further provision to underpin this changed role by creating a power for the Secretary of State to delegate his own health functions directly to PCTs.

16.     Clause 4 contains amendments relating to Personal Medical Services (PMS); Personal Dental Services (PDS) and Local Pharmaceutical Services (LPS) to take account of the replacement of Health Authorities by Strategic Health Authorities and also the transfer of certain PMS, PDS and LPS functions from Health Authorities to Primary Care Trusts.

17.     Clause 5 addresses a further consequence of the devolution of functions from Health Authorities to PCTs, by providing for the responsibility of recognising Local Representative Committees in England to be transferred to PCTs.

18.     Clause 6 allows for the establishment of Local Health Boards to cover the whole of Wales to exercise health functions as directed by the National Assembly for Wales.

19.     Clauses 7 to 10 change the way in which NHS bodies are funded, as a consequence of the devolution of functions from Health Authorities to Primary Care Trusts in England and the creation of Local Health Boards in Wales. Clause 7 provides for the funding of Strategic Health Authorities and clause 8 provides for PCTs to be funded directly by the Secretary of State, rather than by Health Authorities. Clause 9 provides for the funding of Local Health Boards. Clause 10 makes further provision relating to the expenditure of NHS organisations.

20.     Clauses 11 to 14 clarify the extent of the duty of quality on NHS bodies and extend role of the Commission for Health Improvement (CHI) established in the Health Act 1999. As a result of the Bill's provisions, CHI will be able to inspect NHS hospitals and other service providers and recommend to the Secretary of State that special measures are taken where services are of unacceptably poor quality or are failing. The Bill enables certain of CHI's functions to be carried out by what will be known as the Office for Information on Health Care Performance.

21.     Clauses 15 to 20 complete the new arrangements to reform public and patient involvement in the NHS started in the Health and Social Care Act 2001. Clauses 15 to 18 establish statutory Patients' Forums, one for every NHS trust and Primary Care Trust, and set out provisions for their functions and operation. These bodies are intended to ensure that patients' views are taken into account by those delivering NHS services, and provide for a Patients' Forum representative to sit on each NHS trust and Primary Care Trust Board. Clause 19 establishes the Commission for Patient and Public Involvement in Health which will have a role at national level in terms of issuing guidance and training and advising the Secretary of State, and at local level to promote wider community involvement in local health decisions and support the work of Patients' Forums. In the light of these new provisions Clause 20 abolishes Community Health Councils (CHCs) in England only, but not in Wales. It also abolishes the Association of Community Health Councils in England and Wales.

22.     Clause 21 mirrors for the prison service the arrangements set out in section 31 of the Health Act 1999 for the NHS to work jointly with other bodies.

23.     Clause 22 introduces a duty on each Local Health Board (LHB), once created, and each Local Authority (LA) in Wales to formulate health and well-being strategies in Wales.

24.     Part 2 of the Bill concerns the regulation of the health care professions. Clauses 23 to 27 deal with the establishment of the Council for the Regulation of Health Care Professionals ("the Council") and set out its duties and functions. The purpose of the Council is to co-ordinate the work of the regulatory bodies, formulate principles of good regulation, encourage regulatory bodies to conform to these principles and act in the interests of patients.

25.     Clauses 28 to 32 make changes to some 'fitness to practise' appeals procedures, moving them from the Judicial Committee of the Privy Council to the High Court, or the Court of Session in Scotland. They also bring greater consistency to the route taken by appeals against registration decisions. The professions affected by the changes in these clauses are medical practitioners; dentists; opticians; osteopaths and chiropractors.

26.     Clause 33 extends the powers conferred by section 60 of the Health Act 1999 (which deals with the modification of legislation governing the regulation of health care professions) to bring those powers in respect of pharmacy more into line with those for other professions.

27.     Part 3 of the Bill includes a number of miscellaneous and supplementary provisions.

28.     Annex A sets out the existing legal framework for the NHS as at 1 October 2001.

COMMENTARY ON CLAUSES

Part 1 - National Health Service, etc.

NHS bodies and their functions: England

Clause 1: English Health Authorities: change of name

29.     Clause 1 renames Health Authorities in England as Strategic Health Authorities and places a duty on the Secretary of State to create, for the whole of England, Strategic Health Authorities.

30.     The clause retains the existing duty to create Health Authorities to cover Wales. As a result of devolution arrangements, this latter duty is a function of the National Assembly for Wales. For the sake of consistency with previous Acts and to avoid confusion, the reference to the Secretary of State is preserved in respect of Wales instead of adding express reference to the National Assembly.

31.     Subsection (2) amends section 8 of the NHS Act 1977 (which currently provides for the establishment of Health Authorities for the whole of England and Wales) to take account of the renaming of Health Authorities in England as Strategic Health Authorities.

32.     Subsection (3) and Schedule 1 make a series of further amendments to existing legislation to take account of the change of name of English Health Authorities.

Clause 2: Primary Care Trusts

33.     Clause 2 replaces the existing power for the Secretary of State to establish Primary Care Trusts (PCTs) in section 16A of the National Health Service Act 1977 with a duty on him to establish PCTs to cover all areas of England. At present, many areas of England are covered by PCTs. However, in order for the new role of PCTs envisaged under the Bill to be effective, it is essential that there is comprehensive coverage across the whole of England. The clause also removes the existing option of creating PCTs for Wales, where alternative arrangements for Local Health Boards are being developed - see clause 6.

34.     Subsection (4) introduces Schedule 2, which contains amendments to NHS legislation to re-allocate certain functions of Health Authorities to Primary Care Trusts. Under present arrangements, Primary Care Trusts provide or secure the provision of a limited range of services, including primary, community care and social care services. Health Authorities are responsible for medical lists and other family health services such as dentists, pharmacists and opticians. The main effect of Schedule 2 will be to confer directly on PCTs responsibility for all family health services currently conferred on Health Authorities. The Schedule also contains other miscellaneous amendments relating to the reallocation of functions.

Clause 3: Directions: distribution of functions

35.     Clause 3 amends section 16D of the NHS Act 1977 to enable the Secretary of State to delegate directly to PCTs the exercise of any functions which are conferred on him by health legislation, for example, the duty to provide hospital accommodation under section 3 of the NHS Act 1977. These delegated functions are in addition to those directly conferred under Schedule 2. Under the existing section 16D, the Secretary of State can only delegate his functions directly to Health Authorities and Special Health Authorities. Further delegation to PCTs has to be carried out by Health Authorities under section 17A of the 1977 Act and is limited to certain functions (described in section 17A(2) as "delegable"). Certain other functions - described in section 17A(3) as "excepted" - cannot currently be delegated beyond Health Authority level. Clause 3 simplifies this system.

36.     Subsection (2) makes all of the Secretary of State's functions under health legislation directly delegable, in England, to both Strategic Health Authorities and Primary Care Trusts by means of directions issued by the Secretary of State.

37.     Subsection (3) removes the concepts of "delegable" and "excepted" functions in the existing section 17A of the 1977 Act and inserts a new section 17A. This allows Strategic Health Authorities to direct PCTs to exercise specified functions of theirs (except, in certain circumstances, functions relating to PMS or PDS). The Secretary of State may direct Strategic Health Authorities to delegate specified functions to PCTs to be exercised by them alone or jointly with either other PCTs or the Strategic Health Authority.

38.     Subsection (4) enables a Strategic Health Authority to direct a Primary Care Trust about the exercise of any of its functions whether delegated to it by the Strategic Health Authority or not.

Clause 4: Personal medical services, personal dental services and local pharmaceutical services

39.     Clause 4 contains amendments relating to Personal Medical Services (PMS); Personal Dental Services (PDS) and Local Pharmaceutical Services (LPS) to take account of the replacement of Health Authorities by Strategic Health Authorities and also the transfer of certain PMS, PDS and LPS functions from Health Authorities to Primary Care Trusts.

40.     Subsection (1) amends section 9 of the National Health Service (Primary Care) Act ("the Primary Care Act") to remove the restriction on the Secretary of State in England to direct a Strategic Health Authority or Special Health Authority to exercise functions relating to PMS and PDS pilot schemes on his behalf. Subsection (2) amends section 36 of the Health and Social Care Act to remove the same restrictions

as regards functions relating to LPS pilot schemes

41.     Subsection (3) introduces Schedule 3 which makes amendments to the Primary Care Act") and other primary legislation related to the provision of PMS and PDS. These amendments are to take account of the creation of Strategic Health Authorities and the transfer of certain PMS and PDS functions to PCTs.

42.     The Government's policy intention is to devolve PMS and PDS functions from the Secretary of State and Health Authorities to PCTs wherever this is practicable. Where the PCT is providing PMS or PDS, rather than commissioning it, it is not considered possible to devolve certain functions to the PCT. This is because the Primary Care Act requires a distinction to be maintained between the commissioner and provider.

43.     For this reason, PMS and PDS functions currently undertaken by the Health Authority under the 1997 Act will be transferred to Strategic Health Authorities. Where the PCT is the commissioner, the Health Authority's functions will be devolved to the PCT through secondary legislation. Where the PCT is the provider, Strategic Health Authorities will retain the legal exercise of these functions and their accountability, but in practice much of the work will be carried out by PCTs acting as agents on behalf of Strategic Health Authorities. This will be made clear in guidance.

44.     Paragraph 2 of Schedule 3 therefore provides for the transfer of all functions in relation to both PMS and PDS pilot schemes from English Health Authorities to Strategic Health Authorities. This would include, for example, developing and consulting on proposals and implementing schemes approved by the Secretary of State, but exclude those functions associated with the preparation and maintenance of PMS and PDS 'services lists' (see below).

45.     Paragraph 3 amends section 8ZA of the Primary Care Act (inserted by Section 26(2) of the Health & Social Care Act 2001) so that responsibility for 'services lists', comprising practitioners who may perform PMS or PDS under pilot schemes, will be transferred from Health Authorities to PCTs. In future, PCTs will be responsible for the preparation and maintenance of these lists, including making decisions, for example, on a doctor's or dentist's application for inclusion in the list and whether there are grounds for removal from it. (PCTs will also be responsible for the preparation and maintenance of the main medical and supplementary lists).

46.     Paragraphs 5, 6, 9 and 10 make amendments to the Primary Care Act to take account of responsibility for the preparation and maintenance of GMS medical lists (the medical and supplementary lists) being transferred to PCTs. Sections 12 and 13 of and Schedule 1 to the Primary Care Act make provision for the removal from and subsequent readmission to the General Medical Services (GMS) medical list of a GMS doctor moving to or returning from working under PMS pilot arrangements.

47.     Paragraphs 7, 8 and 13 make similar provision in relation to such schemes under permanent arrangements for PMS and PDS

Clause 5: Local Representative Committees

48.     Sections 44 and 45 of the 1977 Act provide for the recognition by Health Authorities of Local Representative Committees formed by family health service practitioners providing GMS and GDS, as well as certain doctors and dentists working in PMS or PDS, pharmaceutical or ophthalmic services. These sections also provide for the Health Authority to attribute funding to these Committees. These arrangements require that such Committees must always be co-terminous only with the relevant Health Authority. Consequential on the renaming of Health Authorities in England as Strategic Health Authorities, Clause 5 amends sections 44 and 45 to provide for practitioners to form Local Representative Committees that are co-terminous with a local Primary Care Trust or with two or more whole Primary Care Trusts; and for those Committees to be recognised, and for funding to be attributed, by each relevant Primary Care Trust.

NHS bodies and their functions: Wales

Clause 6: Local Health Boards

49.     Clause 6 enables the National Assembly for Wales ("the Assembly") to create statutory bodies to be known as Local Health Boards (LHBs) to exercise health functions as directed by the Assembly.

50.     Sub-section (1) inserts three new sections into the NHS Act 1977. It also introduces Schedule 5B to the 1977 Act which sets out provisions for Local Health Board orders, status and membership, staff and other related matters. Under paragraph 5 of the Schedule, the Chair and vice-Chair (if appropriate) are to be board members and staff are to be appointed by the National Assembly. Paragraph 13 enables the LHB to do whatever it considers necessary in order to exercise its functions. Paragraph 17 enables the Assembly to make regulations for the LHB to produce reports, audit and publish accounts, and publish other such documents as required.

51.     The new section 16BB empowers the Assembly to direct LHBs to carry out specified Health Authority functions, which have previously been transferred to the Assembly under Section 27 of the Government of Wales Act 1998 and to direct LHBs about the exercise of those functions. The Assembly can, if it considers appropriate confer different powers and functions upon different LHBs, and change these as it determines necessary.

52.     The new section 16BC enables the Assembly to direct LHB functions to be exercised on their behalf by or jointly with a number of other health bodies.

53.     Sub-section (3) applies to orders, regulations and directions made in respect of LHBs the general powers relating to orders, regulations and directions provided by Section 126 of the 1977 Act.

 
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