HEALTH AND SOCIAL CARE (COMMUNITY HEALTH AND STANDARDS)
Memorandum by the Department of Health
1. The Health and Social Care (Community Health
and Standards) Bill received its first reading in the House of
Lords on 9 July 2003. This memorandum summarises the main provisions
of the Bill and gives an overview of the delegated powers. It
then identifies each power, describes its purpose; explains why
the matter has been left to delegated legislation; and explains
the degree of Parliamentary control provided for.
Main Provisions of the Bill
2. The Bill contains 198 clauses and 14 schedules
and is in 6 parts.
1 establishes NHS foundation trusts - a new form of NHS organisation.
2 sets up a new health care inspectorate and a new social care
3 provides for the NHS to recover hospital treatment and/or ambulance
costs where people receive compensation for injuries.
4 makes various changes relating to NHS primary medical and dental
5 provides for the replacement of the Welfare Food Schemes and
makes a number of small amendments to other legislation.
6 deals with various financial, supplementary and consequential
Part 1: NHS Foundation Trusts
3. Clauses 1 to 39 establish NHS foundation trusts
- a new form of NHS organisation which will have greater financial
and management freedoms. NHS foundation trusts will have the freedom
to retain surpluses and to invest in delivery of new services,
to flexibly manage and reward their staff and to access a wider
range of options for capital funding. The Bill provides that each
NHS foundation trust will have a Board of Governors responsible
for representing the interests of the local community, staff and
local partner organisations. The Bill also provides for the appointment
of an Independent Regulator of NHS foundation trusts to oversee
the conduct of all NHS foundation trusts, with statutory powers
to intervene to ensure compliance with the licence conditions.
Part 2: Quality and Standards
4. Clauses 40 to 145 make provision about quality
and standards in health care and establish two new regulatory
bodies - the Commission for Healthcare Audit and Inspection ('the
CHAI') and the Commission for Social Care Inspection ('the CSCI')
- to regulate health care services and social services respectively.
Clauses 40 to 43 establish the new bodies and abolish the Commission
for Health Improvement ('CHI') and the National Care Standards
Commission ('NCSC') whose functions will transfer to them.
5. Clauses 47 to 58 set out the functions of
CHAI. The CHAI will have the functions of inspecting and reviewing
NHS health care, publishing inspection reports and will have powers
to charge fees. The CHAI will also have functions in relation
to NHS foundation trusts. The Bill provides for the Assembly to
have the same health care regulation functions in respect of health
care provided for in Wales.
6. Clauses 74 to 82 set out the functions of
the CSCI including its powers to charge fees and its duties to
publish inspection reports. Clauses 90 to 99 broadly confer the
same general functions relating to the provision and review of
social services functions on the Assembly in relation to Wales
as are conferred on the CSCI in relation to England.
7. Clauses 111 to 117 make provision for the
handling of health care and social care complaints.
Part 3: Recovery of NHS Charges
8. Clauses 146 to 165 extend the current arrangements
for recovery of NHS costs following road traffic accidents to
all cases where compensation is paid in consequence of injuries.
The effect of these provisions is that where a person is injured
and is paid compensation in respect of the injury, the costs to
the NHS of providing treatment or ambulance services as a result
of the injury can be recovered from the person paying compensation.
Part 4: Dental and Medical Services
9. Clauses 166 to 180 provide for various changes
to NHS primary medical and dental services. Primary Care Trusts
and Local Health Boards will have a duty to provide, or secure
the provision of, primary medical services and primary dental
services and dental public health functions to be conferred by
regulations. Clause 168 provides for the new general dental services
contracts and clause 171 provides for the new general medical
services contract by inserting new sections into the 1977 Act.
Clauses 173 and 174 deal with making permanent the personal medical
services and personal dental services pilots. Clauses 177 and
178 concern the abolition of the Dental Practice Board and the
transfer of rights and liabilities to a Special Health Authority.
Clause 179 makes provision for the making and recovery of charges
for dental services provided to patients.
Part 5: Miscellaneous
10. Clause 181 provides for the replacement of
the Welfare Food Schemes and clause 182 allows for the same provision
to be made, by way of an Order in Council, for the Welfare Food
Scheme in Northern Ireland. Clause 183 and 184 provide for the
Secretary of State to delegate his function of making appointments
to certain health and care bodies to a Special Health Authority.
Clause 185 amends the list of provisions in both the Protection
of Children Act 1999 and the Care Standards Act 2000 (for the
Protection of Vulnerable Adults list) so that the requirement
to obtain a yearly list check is removed for certain groups. Clause
186 abolishes the Public Health Laboratory Service Board and clauses
187 and 188 amend previous legislation.
Part 6: Final Provisions
11. Clauses 189 to 198 contain a number of financial,
supplementary and consequential provisions.
12. The Bill's Explanatory Notes provide detailed
information about the background to each of these provisions,
their purpose and effect.
Overview of the Delegated Powers
13. By the Department's reckoning, the Health
and Social Care (Community Health and Standards) Bill provides
for 92 Secretary of State powers to make orders, regulations and
directions. The National Assembly for Wales is given 45 such powers.
Scottish Ministers are given, in Part 3, equivalent powers in
respect of Scotland as are given to the Secretary of State in
respect of England and Wales. In Part 5 of the Bill, Northern
Ireland Assembly is given the power to make an Order in Council
to replicate the Welfare Food Scheme provisions in this Bill for
Northern Ireland. Paragraphs 14 to 21 of this memorandum set out
the broad rationale for the conferral of delegated powers. The
type of Parliamentary scrutiny provided for is considered in paragraphs
22 to 25. Each of the delegated powers (a summary list of which
is set out in the Annex to this memorandum) is given in detail
in paragraphs 30 to 330.
The Rationale for Delegated Powers
14. In considering whether matters should be
specified on the face of the Bill or left to delegated legislation,
the Department has weighed the importance of the matter against
the need to:
(i) avoid too much technical detail;
(ii) ensure flexibility in responding to changing
circumstances, and a measure of ability to make changes in the
light of experience without the need for primary legislation;
(iii) allow detailed administrative arrangements
to be set up and kept up to date within the basic structures and
principles set out in primary legislation, subject to Parliament's
right to challenge the inappropriate use of powers;
(iv) allow flexible timing to get legislation
right, to consult, and change it when circumstances change.
15. A further important consideration specific
to this Bill has been the existing legislative structure for the
National Health Service. Parts 1 and 4 consist of modifications
or additions to that structure. The delegated powers conferred
by the Bill should be seen in this light. The Committee may find
the following outline of the structure helpful (a more detailed
outline may be found at Annex A to the Bill's Explanatory Notes).
16. The legislative framework is set out in the
National Health Service Act 1977 ('the 1977 Act') as respects
England and Wales. This has been supplemented, in particular,
by the National Health Service and Community Care Act 1990 ('the
1990 Act'), the National Health Service (Primary Care) Act ('the
Primary Care Act'), the Health Act 1999 ('the Health Act') and
the Health and Social Care Act ('the HSC Act'). Since 1st July
1999, many of the functions of the Secretary of State in relation
to the NHS in Wales have been exercised by the National Assembly
for Wales (see the National Assembly for Wales (Transfer of Functions)
Order 1999 (SI 1999/6720)).
17. Under the 1977 Act, the NHS is essentially
split into two systems. The first is set out in Part I, and concerns
the provision of health care in hospitals. It also covers services
which are described as 'community health services', for example
the services provided by district nurses, midwives or health visitors
in clinics or in individuals' homes. Part I of the Act confers
on the Secretary of State the responsibility for providing or
securing the provision of these services. It then provides a structure
whereby he delegates these responsibilities to Primary Care Trusts.
The actual provision of services is carried out by NHS trusts,
under arrangements made by Primary Care Trusts, although some
services are provided directly by Primary Care Trusts. In Wales,
Local Health Boards ('LHBs') make arrangements with NHS trusts
for the provision of services.
18. It is a feature of Part I that while the
overall framework is set out in the provisions of the Act, there
is very little prescription in primary legislation as to what
the Secretary of State or NHS bodies must do or indeed how they
must do it. The matter is left largely to the Secretary of State
direction, which may either be given by regulations or by an instrument
in writing (the latter not being subject to Parliamentary scrutiny).
This system was designed to enable maximum flexibility in the
way Part I services are organised, to avoid unnecessary constraints
on the NHS, and to limit the technical and administrative detail
which appears on the face of the 1977 Act.
19. The second system, in Part II of the 1977
Act, concerns the provision of 'family health services'. These
services are provided 'in the high street' by general medical
practitioners (the family GP), ophthalmic opticians (also known
as optometrists) and ophthalmic medical practitioners and pharmacists,
under arrangements made by Health Authorities. The arrangements
are administered by Primary Care Trusts in England and Local Health
Boards in Wales in accordance with regulations made under Part
II of the 1977 Act. Again, the Act sets the broad framework while
the detail is left to secondary legislation. The difference from
Part I is that the legislation takes the form of regulations,
subject to Parliamentary scrutiny. The Part II system is therefore
more regulated and less flexible than the Part I system.
20. The National Health Service is a large and
complex organisation, which provides services and performs other
functions in a variety of different ways. The existing legislation
governing the health service is sufficiently flexible to cope
with a variety of different circumstances and the Government does
not wish to restrict this flexibility unnecessarily. It would
not be possible to deal with every aspect of how the NHS operates,
and provide for every eventuality in primary legislation, without
producing legislation of great length, complexity and detail.
In addition, such detailed provisions may require frequent changes
to deal with changing circumstances.
21. It is with these considerations in mind that
the Department has approached the issue of delegated legislation
in the Bill.
Type of Parliamentary Scrutiny
22. In considering what type of Parliamentary
procedure would be appropriate for each power, the Department
has sought to follow established practice. In the context of the
NHS, affirmative resolution procedures are thought to be appropriate
only in exceptional circumstances. The orders and regulations
made under the powers in the Bill are therefore subject to the
negative procedure as regulations relate to matters of details
for which the negative resolution is considered more appropriate.
Some of the provisions in the Bill insert new powers to make orders
or regulations into the 1977 Act. Under section 126 of the 1977
Act, these powers are, unless provided otherwise, exercisable
by statutory instrument subject to the negative procedure.
23. Powers to be exercisable by the National
Assembly for Wales will, in accordance with usual practice, not
be subject to any Parliamentary procedure. Instead, the powers
will be subject to the Assembly's own scrutiny procedures.
24. Powers to be exercisable by Scottish Ministers
under Part 3 will be subject to the negative resolution procedure
in the Scottish Parliament.
25. The power to make an Order in Council given
to Northern Ireland in Part 5 will be subject to the negative
resolution procedure and the reasons for this are discussed in
paragraphs 310 to 313.
26. Clause 191 of the Bill provides for regulations
made by the Secretary of State or Scottish Ministers under the
provisions of the Bill to be exercisable by statutory instrument
subject to the negative resolution procedure.
27. Clause 191 also provides for Orders made
by the Secretary of State or Scottish Ministers under the Bill
to be exercisable by statutory instrument subject to the negative
28. As is usual, the power to make a Commencement
Order (clause 194) is not subject to Parliamentary scrutiny.
29. Directions frequently contain matters of
operational detail which relate specifically to the bodies directed
and they may sometimes be used to give immediate instructions
about various matters that may arise from time to time. Much of
the detailed provision in relation to the NHS, under Part I of
the 1977 Act in particular, is set out in directions made under
that Act. It is generally not thought appropriate to submit directions
to Parliamentary scrutiny. Accordingly, directions given in pursuance
of any provision of this Bill are to be given by an instrument
Clause by Clause Summary