Editorial Tuesday 20 December 2011: No taste for accounting? Lords Constitution Committee report updated

The House Of Lords Constitution Committee's updated report on the Health And Social Care Bill may at last drive some change in the legislation.

Its focus is on accountability - which was a key issue raised in the Chairman Mal confirmation hearing.

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It follows a discussion between the committee, chaired by Baroness Jay, and Earl Howe and DH officials on 14 December. The session was private (as evidence to Parliamentary committees can be), and was based on the following agreed points:
• The Bill is not intended to reduce the Secretary of State’s overall accountability in respect of the NHS in England, even though it will change the way that such accountability works.
• There is a need for the Bill to be clear, so that the House and the public alike can understand exactly the accountabilities and responsibilities of the Secretary of State.
• The Bill should support the policy intention that ministers should not be involved in day-to-day operational management.
• The Bill should reflect the reality of what ministers actually do in practice.
• The Bill is not intended to weaken the legal protection afforded to individuals in respect of health services

The committee proposes the following wording should be inserted: "The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England".

It also suggests amendments "so that it provides for a duty on the Secretary of State to have regard to the desirability of securing that other health bodies exercise their functions as they consider appropriate, rather than a requirement that he act with a view to securing their autonomy. An equivalent amendment would also need to be made to new section 13F, part of clause 20, which imposes a duty to promote autonomy on the NHS Commissioning Board".

These look as if they would be acceptable revisions.

Sticking points
There remains significant disagreement over the role of legal duty for comprehensive provision. The report states, "Clause 10 removes from the Secretary of State the duty (currently contained in section 3 of the NHS Act 2006) to provide certain health services and places that duty instead on clinical commissioning groups (CCGs). Case law makes it clear that, as the law currently stands, the section 1 duty to promote a comprehensive health service must be read alongside the section 3 duty to provide certain services. Thus, if an individual wishes to challenge a decision to withdraw, relocate or ration a certain health service, a court reviewing the legality or reasonableness of that decision would consider the matter in the light of the overarching duty in section 1 to promote a comprehensive health service".

The Government disagrees, saying in its response, "“Whilst it is true CCGs do not have a duty to promote the comprehensive health service in the Bill, this does not mean they can simply disregard it. It is clear from the Bill that a comprehensive health service must continue to be promoted in England. It is also clear that the key specific duties and powers in the 2006 Act (as amended by the Bill), including section 3, have been imposed or conferred so that such a service can be promoted. This means that CCGs must have regard to the duty of the Secretary of State to promote a comprehensive health service”.

The committee "remain unconvinced", and suggest adding the following wording: "A clinical commissioning group must exercise its functions under this section in a manner consistent with the performance by the Secretary of State of the duty under section 1(1) (promotion of comprehensive health service).".

I would expect this to be fought tooth-and-claw by Mr Lansley and colleagues, as it would formally perpetuate the Secretary Of State's role in defining the NHS package.

If the logic of the new system is to mean anything, it must mean that one CCG may commission services that another does not. This might be justified by different population needs (meeting socio-demographic circumstances) or by the preferences and value judgments of local clinicians (complementary and alternative medicine).

If the Secretary Of State becomes the de facto umpire of universality, he is very far from removed from day-to-day decision-making about the NHS. CCGs are certain to face challenges where they choose to decommission or not commission services. It may be a provider who challenges, or a patient who wants a treatment. Both think they will benefit.

It's all philosophically a bit of a bind for Mr Lansley, who cast himself as a liberator. He sincerely believes that local clinicians will make the best decisions for their populations. Often, that will be so. He thinks that structural planning is A Bad Thing (that's why he delayed the London stroke reconfiguration until a comedy consultation had been conducted).

But one of the best reasons to oppose the Bill is its extreme poverty of understanding that where clinicians' careers will be threatened by reconfiguration or decommissioning of services, their self-interest may come into play - vigorous, shroud-waving play.

It appears from the Bill that Mr Lansley has not done his market research on turkeys' voting intentions on the subject of Christmas.