Health secretary will no longer be obliged to provide health service under new bill, says legal opinion

BMJ 2011; 343 doi: (Published 31 August 2011) Cite this as: BMJ 2011;343:d5525
  1. Nigel Hawkes
  1. 1London

The health secretary for England would no longer be obliged to provide a health service under the Health and Social Care Bill currently going through parliament, legal opinions obtained by members of a campaigning group, 38 Degrees, have confirmed.

After the “listening exercise” led by the Future Forum, the body appointed to review the bill, the government said that it would be amended to make it clear that the secretary of state would remain responsible for “promoting a comprehensive health service,” the same wording as in the existing act. But Stephen Cragg, a London barrister, says that the effect would be different in the new bill.

This is because Section 3(1) of the existing act—which enjoins the health secretary to “provide throughout England, to such extent as he considers necessary to meet all reasonable requirements” services that are then detailed, such as hospitals and medical services—will be replaced by a similar clause placing these responsibilities on clinical commissioning groups. And instead of being told to “provide” such services, these groups will be charged with “arranging for the provision” of them, a form of words meaning that they can contract the services out if they so decide.

At the same time the bill, if enacted, will limit the degree to which the health secretary can direct commissioning groups to do what he wants. Under the existing act many responsibilities are devolved to primary care trusts and strategic health authorities, with the health secretary having the right to give directions or even recall services “in house” if he is dissatisfied.

Mr Cragg summarised his argument by saying, “Effectively, the duty to provide a national health service would be lost if the bill becomes law and would be replaced by a duty on an unknown number of commissioning consortia with only a duty to make or arrange provision for that section of the population for which [each] is responsible.

“Although some people will see this as a good thing, it is effectively a fragmenting of a service that currently has the advantage of national oversight and control, politically accountable via the ballot box to the electorate.”

The legal opinions confirm the “profound ambiguities” concerning the health secretary’s responsibilities raised by the Liberal Democrat peer Shirley Williams at the annual meeting of the NHS Confederation in July (BMJ 2011;343:d4445, 13 Jul, doi:10.1136/bmj.d4445).

A second legal opinion obtained by 38 Degrees from another barrister, Rebecca Haynes, deals with competition and procurement law. She says that the procurement regime in the NHS is a complex and developing body of rules and that there is a risk that expertise to cope with the regulatory burden will be lacking.

She said, “It appears, however, that the government has simply failed to grapple with the frontline issues in procurement, has wholly underestimated the increasing rather than diminishing complexity in the area, and has had no, or perhaps little, regard to the administrative and financial burdens arising from the regime.”

The organisation that commissioned the two barristers’ opinions is an online group of people that campaigns on issues raised by individual members. Founded by (among others) Gordon Roddick, the widower of Anita Roddick, creator of the Bodyshop chain of cosmetics shops, it provides a non-political forum where issues are identified and money raised to pursue them. It says that its name is taken from the angle of slope at which an avalanche begins. The campaign against the sale of forests owned by the Forestry Commission is its most notable success so far.

David Babbs, executive director of 38 Degrees, said, “None of us voted for these fundamental changes to the NHS. They weren’t in any party’s manifestos or the coalition agreement. So 38 Degrees members have clubbed together to get legal advice to convince MPs that the changes shouldn’t be pushed ahead and that the public’s concerns need to be taken seriously.”


Cite this as: BMJ 2011;343:d5525

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