Editor's blog Friday 28 January 2011: Commons Library briefing elucidates Bill's changes further

I'm grateful to a reader of Health Policy Insight for giving me sight of the House Of Commons library document on the Health And Social Care Bill.

We have previously raised the issue of the statutory status of consortia, and again here.

The Commons library document states in Section 4.6  (p. 18), "The Government’s Legislative Framework explains that the purpose of establishing GP commissioning consortia as statutory bodies ...is to ensure that they have an identity that is separate from that of their member practices, with clarity between the commissioning responsibilities of the consortium as a whole and the specific responsibilities of individual practices. Being a statutory body means that consortia can have clear powers and duties. Compared to current practice-based commissioning, statutory arrangements will afford a more transparent framework for how consortia operate, including what happens when a consortium is unable to fulfil its functions. [DoH, Equity and excellence: Liberating the NHS (Cm 7881) 12 July 2010, para 4.10-4.11, pages 30-33]".

So. They are statutory - in that statute establishes them. The desire of the reforms is, however, to ensure that legislation is not required (either primary or secondary) when consortia are to be 'flexed'. Is this the reason for the Bill referring to them as "bodies corporate"?

Elsewhere, the document points to other key lessons:
"Clause 4 seeks to establish this overarching principle (of autonomy), by stating that the Secretary of State should act with a view to promoting autonomy in the health service. It identifies two constituent elements of autonomy: freedom for health service bodies (such as commissioning consortia) to exercise their functions in a manner they consider most appropriate (by inserting section 1C(a) in the NHS Act 2006), and not imposing unnecessary burdens on those bodies (section 1C(b)). Clause 19(section 13(E)) imposes a similar duty on the NHS Commissioning Board". (p. 14)

"4.3 Exceptional powers to direct the NHS Commissioning Board and GP consortia
"Regulations relating to EU obligations
"Under the current system, the Secretary of State has the power to delegate certain aspects of his functions relating to EU obligations to PCTs and SHAs, and to direct them in the exercise of these and other functions to ensure compliance with EU law. In view of the abolition of PCTs and Strategic Health Authorities, clause 15 gives the Secretary of State similar powers with regard to the Board and consortia. For example, the Secretary of State might delegate to consortia the function of authorising patients in England to go to another EU state for their treatment.

"Standing rules
"Clause 16 makes provision for the Secretary of State to establish ‘standing rules’ which would impose requirements on the NHS Commissioning Board and commissioning consortia in the exercise of their functions. The requirements in the standing rules would be imposed by means of regulations, as outlined in subsection (1). These will, for example, provide the basis for the legal rights in the NHS Constitution that currently depend on directions to PCTs, and will also give power for ministers to ensure compliance with EU obligations (and is complementary to the powers in clause 15). Other subsections of this clause confer powers to direct the Board or consortia with regard to the drafting of commissioning contracts, and to require information to be provided to patients and the public. Subsection(7)(c) also allows for a general power for the Secretary of State to require the Board or consortia ‘to do such other things as the Secretary of State considers necessary for the purposes of the health service’. Given the broad scope of this power regulations brought forward under subsection(7)(c) would be subject to the affirmative procedure in Parliament.

"The expectation is that the Secretary of State would make changes to the standing rules only at the same time as the mandate is set, on 1 April each year; where that is not the case, the Bill requires the Secretary of State to lay a statement before Parliament explaining why.
Standing rules created by this clause must apply generically and cannot apply only to individual consortia.

"Power to confer additional functions on the Board
"Clause 19(section 13U) gives the Secretary of State the power to confer additional functions relating to the health service on the NHS Commissioning Board through regulations. These regulations would be subject to the affirmative procedure, and could only be conferred on the Board if it connected to another function of the Board.

"Power to intervene: failure by Board to discharge functions
"Clause 19(section 13V) confers powers on Secretary of State to intervene in cases of serious failure of the NHS Commissioning Board to carry out any of its functions.

"Emergency powers
"Clauses 38 and 39 would amend the NHS Act 2006 to make provision in relation to emergencies affecting the health service.

"Clause 38 sets out the role and responsibilities of the NHS Commissioning Board and commissioning consortia in relation to assuring NHS emergency preparedness, resilience and response.

"Clause 39 would extend the Secretary of State’s emergency powers. Currently section 253 of the NHS Act 2006 confers on the Secretary of State the power to give directions to any body or person exercising functions under the Act, other than NHS foundation trusts, where he considers it necessary by reason of an emergency to do so. The clause also amends section 253 so that the Secretary of State can give a direction where he considers it is ‘appropriate’, not just necessary, to do so by reason of an emergency. In addition, the effect of the amendment is that the power is not limited to giving directions to ensure that a service is provided, rather it provides that the Secretary of State’s power to direct applies to all NHS bodies except Local Health Boards (which are Welsh NHS bodies) – i.e. it covers the NHS Commissioning Board, commissioning consortia, Special Health Authorities, NHS trusts and NHS foundation trusts. The power would also apply to the National Institute for Health and Care Excellence (NICE), the Health and Social Care Information Centre and any provider of NHS services." (pages 15-16)

"Applications for the establishment of commissioning consortia
"New section 14B makes provision for applications to be established as a consortium to be made to the Board (subsection(1)). Under subsection(2), an application may be made by two or more persons, provided that each of them is either a provider of primary medical services (i.e. a GP contract holder)." (p. 18)

"Additional powers for consortia to raise additional income and to make grants are set out in sections 14S and 14T.

"Sections 14U, 14V, 14W and 14X make provision for the Board to have functions in relation to assisting consortia. For example 14U states that the Board may publish a document specifying the circumstances in which a consortium is liable to make payments to a provider to pay for services provided under arrangements commissioned by another consortium. This provision would, for instance, enable the Board to specify that, where a person uses an urgent care service commissioned by a consortium other than the consortium that is ordinarily responsible for that person’s healthcare, the cost of that service is charged to the latter consortium.

"Section 14V provides that the Board must publish guidance for consortia on the discharge of their commissioning functions. Section 14W provides that the Board may, at the request of a consortium, exercise commissioning functions on behalf of the consortium. Section 14X states that the Board may provide assistance or support.

"Commissioning plans
"Section 14Y provides that consortium must prepare a plan setting out how it proposes to exercise its functions, particularly with regard to discharging its duties to ensure continuous improvement in health outcomes (under section 14L) and its financial duties (under sections 223I and 223K). The consortium must send its plan to the Board and to any local authority health and wellbeing boards (HWBs) that cover its area. GP consortia will also be under an obligation to include a statement as to whether the relevant HWB agrees that their plans have due regard to their joint health and wellbeing strategy (JHWS)." (p. 21)

"The evidence for GP commissioning
"The question of the evidence base for giving responsibility for commissioning to GP consortia has come up in a number of Parliamentary Questions and was also addressed during the Health Select Committee’s inquiry into Commissioning. The Health Committee questioned a number of witnesses on the evidence for the Government’s commissioning reforms, on 19 October 201075 and 16 November 2010.

"In the evidence session on 16 November 2010 Julian Le Grand, professor of social policy at LSE, emphasised evidence from GP fundholding to Practice Based Commissioning that supported the Government’s approach. However, Lancaster University professor of sociology and public health, Jennie Popay, and Manchester University professor of social policy, Steve Harrison, said that past evidence was anecdotal, small-scale and difficult to transfer to the Government’s large scale commissioning proposals." (ps. 26-7)

"The Secretary of State’s powers to direct local authorities
"Clause 14 enables the Secretary of State to make regulations (subject to affirmative procedure) requiring a local authority to exercise any of the public health protection and improvement functions under section 2A and 2B (inserted by clauses 7 and 8 of the Bill). Clause 18 would also allow the Secretary of State to delegate any of his functions under section 2A and 2B to the NHS Commissioning Board, GP consortia or local authority." (p. 28)

"6.1 The role of Monitor
"Monitor, the body that currently regulates NHS foundation trusts, would become the economic regulator for the whole of the health and adult social care sectors. In this expanded role, Monitor would have three core functions: to promote competition where appropriate, to regulate prices for NHS funded services, and support the continuity of services.

"To support its functions, Monitor would have the power to license providers of NHS-funded care. The Legislative Framework compared Monitor’s new role in regulating healthcare, to that of Ofcom or Ofgem in regulating the communication and energy markets.80 The Explanatory Notes to the Bill state that the legislation ‘draws upon lessons from the utilities, rail and telecoms industries, borrowing provisions where applicable, but tailoring others to the particular circumstances of the health sector.’

"The Department of Health and the Department for Communities and Local Government are in discussion about whether to extend the system of economic regulation to the social care sector. The Bill contains provisions to extend the remit of Monitor to social care if this is considered to be appropriate in the future." (p. 29)

"Requirements as to good procurement practice
"Following consultation on its competition proposals the Government decided to ensure NHS commissioners were subject to comparable prohibitions of anti-competitive conduct as those for providers.88 Clauses 63 and 64 are intended to ensure good procurement practice by the NHS Commissioning Board and by GP consortia.

"Clause 63 would enable the Secretary of State to make regulations setting rules for the Board and GP consortia to ensure good procurement practice and protect choice and competition with regard to healthcare services.

"Clause 64 sets out Monitor’s powers to investigate and remedy breaches of the regulations. Monitor would have the power to investigate following a complaint by an interested party. The Explanatory Notes to the Bill suggest that regulations might confer on Monitor powers to declare, in specified circumstances, that an arrangement for the provision of services was ineffective and to direct the Board, or a consortium, to put the provision of services out to tender." (p. 32)