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Editor’s blog Thursday 16 December 2010: The powers of the Secretary Of State over the NHS - to direct it wholly in emergencies

There is some fascinating stuff in the various documents - for now, just have a think about this, from the consultation response and legislation proposal.

It means that in undefined "emergencies", the Secretary Of State For Health will gain power of direction over every commissioner and every provider - all NHS foundation trusts and all GPs.

So this is what is meant by liberation - nationalisation whenever the Health Secretary feels like it. With no defined end to "emergency", or apparent need to apply to Parliament to assume remove this power.

POWERS OF THE HEALTH SECRETARY OVER THE NHS (4.103-4.110) – “The Government will therefore bring forward wholesale reform to the legal powers of the Secretary of State – setting for the first time in the history of the NHS clear constraints on the ability of the Department to intervene in the NHS.

“Unlike SHAs and PCTs, the functions of the NHS Commissioning Board will be defined in primary legislation rather than being at the discretion of the Secretary of State through a process of legal delegation. Nor will the Secretary of State have a general power of direction over the NHS Commissioning Board. Instead, direction for the NHS will be restricted to a more formal and transparent once-a-year process, which will provide for greater stability and planning certainty.

“The Secretary of State will set a mandate for the NHS Commissioning Board, which will include the totality of the Government’s requirements and expectations for the NHS over what is likely to be a three-year period, updated annually. For the first time the Secretary of State will be under specific duties to promote improvement in quality and outcomes, and reduce inequality in healthcare provision, and will set out objectives for the NHS Commissioning Board in these areas including specific levels of improvement.

“The mandate will also include financial allocations to the NHS Commissioning Board. The Board will be under a duty to seek to achieve the objectives set for it in the mandate, and will have a duty to comply with any requirements imposed on it for that purpose.

“The Bill will specify that the Secretary of State will only be able to alter the mandate in-year, or change the financial allocation to the Board, if he thinks that there are exceptional circumstances, which he must explain transparently by laying a report before Parliament, or if the Board agrees to the change. This means that, exceptional circumstances aside, ministers will be prevented in law from imposing new requirements on the NHS in-year. A new government following a general election would have the ability to change the mandate in-year and lay a report in Parliament setting out its reasons.

“The Government has also made the important decision that each year the Secretary of State will be obliged to undertake a formal public consultation on the priorities contained within the mandate before issuing the final version. This constitutes a significant enhancement of public engagement in setting NHS priorities, compared with the current process for setting the NHS Operating Framework 2011/12.

“Alongside the mandate, the Bill will provide for the Secretary of State to make “standing rules” through regulations, setting legal requirements for commissioners. 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. The Government’s intention is for the Bill to include a limited list of areas where standing rules can be made. Balancing the need for future flexibility with proper Parliamentary scrutiny, the Secretary of State would be able to make new standing rules in additional areas only through regulations made by the affirmative procedure, with the approval of both Houses of Parliament. Furthermore, the expectation is that the Secretary of State would make such changes to the standing rules only at the same time as the mandate is set; where that is not the case, the Secretary of State will be obliged to lay a report in Parliament explaining why. Such changes may well be proposed by the NHS Commissioning Board, and the Secretary of State will consult the Board on any changes.

“The Bill will go further in removing the ability of the Secretary of State to intervene in relation to any individual commissioner. The Bill will make clear that any requirements or objectives set by the Secretary of State must apply generically. There will be no power to direct an individual commissioner – except in the sole instance of where the Secretary of State rules on an appeal by a local authority against a proposed change to services subject to additional regulation, as described in Chapter 5, or to ensure compliance with EU requirements. Where there is failure of an individual consortium, this will be a matter for the Board; ministers will in turn hold the Board to account for how well it discharges its oversight functions.

“In the event of emergencies, however, it is vital for the Government to be able to act decisively. As the head of emergency planning at Hampshire PCT wrote: “Clear arrangements need to be in place with all parts of the health system having emergency planning responsibilities”. To address this, the Board will be under a duty to ensure NHS preparedness and resilience by assuring that clear arrangements are in place, services are co-ordinated and there are designated lead individuals. In the event of an emergency, the NHS Commissioning Board would also have responsibility for mobilising the NHS. A gap within the current framework is that, in relation to emergencies, the Secretary of State does not have powers over NHS foundation trusts. The Bill will remedy this omission, and strengthen current intervention powers so that the emergency power of direction applies over all commissioners and providers of NHS-funded care(my underlining). This will form part of the stronger, more integrated system of health protection set out in the public health White Paper Healthy Lives, Healthy People.

“Finally, the Bill will enshrine the principle of autonomy at the heart of the NHS. We intend that the Secretary of State, in carrying out any NHS-related function, must have regard to the principle of maximising the autonomy of individual commissioners and providers and minimising the obligations placed upon them, in a way that is consistent with the effective operation of a comprehensive health service. As described earlier, we are exploring how to enshrine this principle as a duty for the NHS Commissioning Board. These legislative changes to the powers of the Secretary of State are a critical part of the Government’s vision to liberate the NHS and they will also serve to strengthen the NHS Constitution.”