Select Committee on Delegated Powers and Regulatory Reform Twenty-Fourth Report


HEALTH AND SOCIAL CARE (COMMUNITY HEALTH AND STANDARDS) BILL

Introduction

1.  This is a six-part bill dealing with various aspects of health and social care, the most controversial of which is Part 1 (NHS Foundation Trusts).

The Delegated Powers

2.  There are many delegated powers in the bill, all of them described in the memorandum for the Committee from the Department of Health. The memorandum is printed at Annex 1 to this Report. Powers are conferred on the Secretary of State, on the National Assembly for Wales (NAW) and, in Part 3, on the Scottish Ministers. There is also a power to make an Order in Council in Part 5. None of the powers conferred on the Secretary of State is subject to affirmative procedure. Except where NAW procedures apply, and except in a small number of cases (such as commencement orders) where there is no Parliamentary procedure, the negative resolution procedure applies throughout.

3.  An explanation of the rationale for the delegated powers is at paragraphs 14 to 21 of the Department's memorandum. The National Health Service's legislative structure has, since its inception, left a great deal to subordinate legislation subject to negative procedure (except, now, for Wales) and directions. This basic framework has been maintained on successive reorganizations, including those effected by the various enactments of recent years. We do not consider, therefore, that the number of delegated powers in the bill is a cause for concern.

4.  Although we find most of the delegations, and the level of Parliamentary scrutiny, appropriate, there are a number of issues to which we wish to draw the attention of the House.

Standards (Part 2)

Disclosure of information

5.  Clause 113(4) and the new sections 26ZA(4) and 26ZB(4) of the Children Act 1989 (inserted by clause 114) allow regulations about complaints and representations procedures to authorise disclosure of information or documents to the person considering the complaint or representations, even if the normal common law rules about confidence would otherwise prevent it.

6.  The need for these provisions is addressed at paragraphs 237 and 243 of the Explanatory Notes and paragraphs 152 and 159 of the Department's memorandum. It is not entirely clear from the explanations what information will typically be involved. But paragraph 152 of the memorandum refers expressly to cases where consent is being withheld, not just to cases where it is impracticable to obtain consent.

7.  We recognise that the power is very limited, as it concerns disclosure only to those with a role in considering the complaint. WE WISH HOWEVER TO DRAW THESE PROVISIONS TO THE ATTENTION OF THE HOUSE AND SUGGEST THAT THE HOUSE MAY WISH TO INVITE THE GOVERNMENT TO PROVIDE A FULLER EXPLANATION OF THE INTENDED USE OF THESE POWERS.

Recovery of NHS Charges (Part 3)

8.  The Road Traffic (NHS Charges) Act 1999 enables the NHS to recoup from a person making a compensation payment in respect of an injury to a patient the cost of treating that patient. That Act applies only to injury caused by motor accidents and is replaced in this bill by arrangements applying to any injury, however caused. The memorandum explains that many of the powers in the bill replicate the existing powers in the 1999 Act.

9.  Clause 149(2) enables regulations subject to negative procedure to specify the amounts, or the method of determining the amounts, which a person is liable to pay and to make other provision mentioned in subsection (5). This follows the precedent set by the 1999 Act. However, the scheme under the bill is considerably wider in scope than that under the 1999 Act and the power is commensurately wider. Significant issues as to the level of payments may be involved in its exercise. THE COMMITTEE THEREFORE CONSIDERS THAT REGULATIONS UNDER CLAUSE 149(2) SHOULD BE SUBJECT TO THE AFFIRMATIVE, RATHER THAN THE NEGATIVE, PROCEDURE.

10.  We note that clause 146(12) contains a Henry VIII power to amend Schedule 10 by omitting or modifying any payment listed in Schedule 10. Schedule 10 lists the payments which do not count as compensation payments - only those who have made compensation payments are liable to pay NHS charges. So the effect of an order omitting an entry from Schedule 10 is to widen the scope of liability to pay NHS charges, compared with that set out in the bill. (Regulations prescribing trusts and payments under paragraphs 3 and 8 of Schedule 10 will have the opposite effect.) IN THESE CIRCUMSTANCES WE TAKE THE VIEW THAT THE AFFIRMATIVE, RATHER THAN THE NEGATIVE, PROCEDURE IS MORE APPROPRIATE AND RECOMMEND THAT THE BILL SHOULD BE AMENDED ACCORDINGLY.

Dental and Medical Services (Part 4)

Drugs - "black list" or "white list"

11.  Clause 171, at new section 28U(6), enables directions by the Secretary of State/NAW to state which drugs are, or are not, prescribable under the NHS. New section 28U(7) applies existing section 18(1) of the 1977 Act, under which directions may be either by an instrument in writing or by regulations subject to negative or NAW procedure. The current position is that lists of non-prescribable drugs must be in regulations. Paragraph 267 of the memorandum does not indicate how, in practice, the Government intends to operate the choice between an instrument in writing and regulations. Only the regulations will be subject to the negative procedure or the NAW procedures. WE TAKE THE VIEW, GIVEN THE POTENTIAL IMPORTANCE OF THIS ISSUE, THAT EITHER THE GOVERNMENT SHOULD MAKE EXPLICIT ON THE FACE OF THE BILL THE CRITERIA TO BE APPLIED IN DETERMINING WHETHER TO MAKE DIRECTIONS BY AN INSTRUMENT IN WRITING OR BY REGULATION SUBJECT TO NEGATIVE OR NAW PROCEDURE, OR DIRECTIONS SHOULD IN ALL CASES BE MADE BY REGULATIONS.

Acceptance of patients by doctors

12.  New sections 28U(3) and 28E(3)(ca) of the 1977 Act (inserted by clauses 171 and 173(7) respectively) enable regulations to provide for circumstances in which a person providing medical services must or may accept a patient. This is explained in paragraphs 265 and 275 of the Department's memorandum.

13.  The provisions being replaced are sections 28F and 28G of the 1977 Act, which are in more explicit terms. For example, section 28F says that provision "shall be made in regulations for conferring a right on any person to choose the medical practitioner from whom he is to receive…services, subject to [the doctor's consent and list size]". It is also mandatory for regulations under section 28F to include provision for allocating patients who have been refused by the doctor of their choice. ALTHOUGH WE DO NOT, IN THIS CASE, CONSIDER THE DELEGATION INAPPROPRIATE IN THE CONTEXT OF THE DUTIES IMPOSED ON PRIMARY CARE TRUSTS AND LOCAL HEALTH BOARDS BY CLAUSES 166 AND 170, WE DRAW TO THE ATTENTION OF THE HOUSE THE PURELY DISCRETIONARY NATURE OF THE NEW POWERS.

Supplementary Provision

14.  Clause 196 enables the Secretary of State, the NAW, or the Scottish Ministers, as the case may be, to make such supplementary, incidental or consequential provision as is thought appropriate for the purposes of, in consequence of or for giving full effect to any provision of the bill. This includes power to modify enactments, which in this context includes amendments and repeals (paragraphs 328 and 329 of the memorandum).

15.  PARAGRAPH 329 OF THE DEPARTMENT'S MEMORANDUM GIVES THE REASON FOR THE CHOICE OF NEGATIVE, RATHER THAN AFFIRMATIVE, PROCEDURE IN THE WESTMINSTER AND SCOTTISH PARLIAMENTS. WE ARE NOT PERSUADED BY THE EXPLANATION. THIS IS AN IMPORTANT BILL COVERING A WIDE RANGE OF SUBJECTS, AND WE TAKE THE VIEW THAT THE COMMITTEE'S PRESUMPTION THAT SUCH POWERS SHOULD NORMALLY BE SUBJECT TO AFFIRMATIVE RESOLUTION WHEN THEY AMEND ACTS HAS NOT BEEN REBUTTED. WE RECOMMEND THAT THE AFFIRMATIVE PROCEDURE SHOULD APPLY IN THIS INSTANCE FOR THOSE ORDERS THAT AMEND ACTS.

Conclusion

16.  WE DRAW TO THE ATTENTION OF THE HOUSE THE RECOMMENDATIONS IN PARAGRAPHS 9, 10, 11 AND 15 ABOVE, AND THE POINTS RAISED IN PARAGRAPHS 7 AND 13. THERE ARE NO FURTHER MATTERS IN RELATION TO THE DELEGATED POWERS IN THIS BILL ON WHICH WE WISH TO REPORT TO THE HOUSE.


 
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