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The legal basis for NHS reforms

29 May 2012 

Selina Norris

Selina Norris, GDL student, The College of Law Birmingham

The government hopes to ‘tackle the problems of today and avoid a crisis tomorrow’, but what does it mean for you?

Now law, the public await the implementation of the Health and Social Care Act 2012 with bated breath…

The Health and Social Care Bill was introduced in January 2011 and has faced much opposition. In the government’s effort to ensure that the bill is fully comprehensible, the Bill has received what has been described as an almost unprecedented level of scrutiny – to date the Bill has received in excess of 200 hours of parliamentary debate. Despite this, the public still feel uncertain about the proposals, have dubbed it the ‘health lottery’, and feel they have been kept in the dark about the true implications of the Bill.

Why is there so much opposition?

A general lack of clarity and understanding about the Act and the true impact it will have on the public and on the NHS has left the public uneasy, and has fostered animosity towards politicians and amongst themselves.

The NHS is undoubtedly an unrivalled and prized gemstone on which the majority rely. A service often taken for granted. A key concern is that this Act is a step towards privatisation of healthcare in the UK. It is feared that the government is applying pressure on the NHS to move towards a profit-making system, and many British people would oppose a healthcare system like that of the USA. Although the Act does not propose such a system, a major concern is that a system that aims to introduce competition creates a system of winners and losers – in the view of many in the UK, you cannot afford losers when it comes to healthcare.

Rationale for the Bill

The government believes that modernisation is essential to safeguard the NHS, and has outlined three main reasons for reform:

  1. The current state of public finances requires the financial structure of the NHS to be reformed
  2. The demand for treatment is rising whilst medical costs continue to escalate
  3. The NHS needs improvement in order to keep up with medical advances, to rectify unjust differences in the quality of care across the UK, and to maintain standards of care in line or above those in Europe

Main aims of the Bill

The government hopes that implementation of the bill will:

- allow clinicians greater involvement in the commissioning of NHS care

- improve the accountability of NHS management, providing clearly defined roles, responsibilities and regulations

- improve the accountability of the Secretary of State and clarify their responsibilities

- give patients a voice and choice in their health care

- integrate and improve the quality of both the UK’s health and social care

- create regulators to promote efficiency in the NHS

- establish Public Healthwatch England, a new body which will have ultimate oversight over the ‘new NHS’, will advise the Clinical Commissioning Groups (CCGs), and reform other health related public bodies (s181)

Timing of implementation

The Bill gained Royal Assent in March 2012 and is now in force, yet its implementation will take place over the next two years. The full effects will not be evident until 2015.

Costs

The government expects that the bill will eventually cost over £1.4 billion to implement, but estimates £5 billion in savings by 2015. However, this £5 billion will come from 20,000 planned redundancies over the next two years, as management, administration and Primary Care Trust teams are phased out. The government has not revealed to the public the impact that cutting this NHS bureaucracy will have on the UK’s already escalating unemployment rates – a fact which is understandable, given that the full effect is not predictable.

Impact on the NHS and the public

The Act will include structural change to the NHS by amending sections 13 and 18 of the National Health Service Act 2006, and adds new sections 14B, C, P and Z1.

Primary Care Trusts and Strategic Health Authorities will be removed (s33 and 34). Whilst this will entail numerous job losses, it will also mean new opportunities for health professionals to have a voice and to manage their own community NHS programmes in their replacement, the CCGs. These will consist of a number of healthcare clinicians, including GPs and nurses, and will be subject to scrutiny by the NHS Commissioning Board (s25). From a negative point of view, this will result in more pressure on them to manage their own business with potentially very few benefits.

The CCGs will decide on patients’ care requirements, will provide advice about their options over treatment and facilities, and will pay the related health bills. This will result in more information and choice for patients and more focused facilities that integrate both medical and social care in the community. Section 26 has added specific duties for the CCG’s. The main new duties are:

- Duty to promote innovation, research, education and training, integration and the NHS Constitution

- Duty to improve the quality of services, reduce inequalities and to be effective, efficient and economical

- Duty to promote involvement of each patient and allow them choice in their care and treatment

- The CCG must obtain appropriate advice from professional experts

All NHS trusts will be abolished and will either be dissolved or become foundation trusts (s179) which will compete for contracts to provide treatment to the CCGs (s25, adding a new s14A to the 2006 Act). This leads to greater competition between local health providers, the NHS and private medical care. On one hand, the government hopes this will lead to better quality and more accessible care, but it is likely that this will result in the end of some local services and the closure of a number of hospitals that cannot compete.

However, before the CCG can contract healthcare services, the healthcare provider must hold a licence from the independent regulator of NHS Foundation Trusts (Monitor) (sections 81 – 86).

In addition, Monitor will establish a national tariff for the prices payable for NHS services by the CCGs, although this pricing will be variable in some locations and services (Sections 115 – 118).

Currently only 3.5% of NHS surgery is transferred to private hospitals, however the Act should see this increase. Also, the income cap on the amount that trusts can bring in from non-NHS sources will rise from 1.5% to 49%, fuelling fears that this will lead to healthcare privatisation.

Comment

While the NHS requires reform, in my opinion it is doubtful whether the Bill will bring the right answers. The cost of medical care is mounting and the demand for healthcare is increasing. I agree with the government view that, to date, too much money has been spent on unnecessary bureaucracy that was neither justifiable nor affordable. However, redundancies will be regrettably be unavoidable when reducing this bureaucracy, and I cannot help but question the need for reform to such an extent. Surely, such a large number of redundancies risk:

- reducing morale of NHS staff who fear job loss

- seeing unemployment rocket

- causing deterioration in the social dynamic of local communities

- increasing the cost of providing social welfare benefits (potentially off-setting any savings and irritating tax payers)

Furthermore, although it may seem a good idea to give GPs control of the budget to utilise in the way they believe best suits their community and patients, are GPs really going to embrace increases to responsibility, working hours and pressure for what may ultimately be very little or no benefit?

Interestingly, prior to election, David Cameron pledged to focus on the NHS, but to do so without any further reorganisations, which he deemed unnecessary at the time. However, following a coalition decision, the nation is now looking at full-blown NHS reform. In my opinion, it’s questionable whether the majority of the UK public are in favour of NHS reform, and many will have been alarmed by the extent of the reform proposed. My concern is that the reforms risk bringing havoc – rather than efficiency – to the everyday running of the NHS…

Background

Basic information about the Health and Social Care Act 2012 is set out in The Health and Social Bill Government Factsheets.

The full Act is available on www.legislation.gov.uk

The main provisions outlined in this article are:

- Sections 25 – 27: provisions relating to CCG’s

- Sections 33 – 34 and 179: abolition of existing bodies

- Sections 81 – 86: licensing of healthcare providers

- Section 115: the national tariff

- Section 181: the creation of Healthwatch England

 

Selina Norris - biography

Undergraduate degree
BSc Sports and Exercise Sciences (First Class Honours), The University of Birmingham

Work experience
Currently employed within the property industry, I have 10 years’ work experience in a variety of roles, including a number of law firms, vast experience in the sports sector and numerous customer service roles

Why law?
I thrive under pressure, so desire a demanding career. As I’m business orientated with an interest in law, this rewarding, exciting and challenging career seemed the perfect fit for me. I am currently studying the part-time GDL at The College of Law Birmingham. I attribute success to hard work, determination and passion – elements which I will relish as I embark upon my legal career

Extra-curricular activities
International Action Team for Human Rights, Christian Crossroads volunteer to Help the Homeless, swimming teacher and figure skater



 

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