Health and Social Care Bill 2011: a legal basis for charging and providing fewer health services to people in England

BMJ 2012; 344 doi: http://dx.doi.org/10.1136/bmj.e1729 (Published 8 March 2012)
Cite this as: BMJ 2012;344:e1729

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  1. Allyson M Pollock, professor1,
  2. David Price, senior research fellow1,
  3. Peter Roderick, public interest lawyer2
  1. 1Centre for Primary Care and Public Health, Queen Mary, University of London, London E1 4NS, UK
  2. 2London, NW1 0XG, UK
  1. Correspondence to A M Pollock a.pollock{at}qmul.ac.uk
  • Accepted 7 March 2012

Despite recent amendments to English health bill in response to opposition, Allyson Pollock, David Price, and Peter Roderick argue that it will enable charging for health services that are currently free

Entitlement to free health services in England will be curtailed by the Health and Social Care Bill currently before parliament.1 The bill sets out a new statutory framework that would abolish the duty of primary care trusts (PCTs) to secure health services for everyone living in a defined geographical area. New clinical commissioning groups (CCGs) will arrange provision of fewer government funded health services and determine the scope of these services independently of the secretary of state for health. They may delegate this decision to commercial companies. The bill also provides for health services to be arranged by local authorities, with provision for new charging powers for services currently provided free through the NHS (clauses 1, 12, 13, 17, and 49), and it will give the secretary of state an extraordinary power to exclude people from the health service. Taken together the measures would facilitate the transition from tax financed healthcare to the mixed financing model of the United States. We provide an analysis of the key legal reforms that will govern policy development and implementation if the bill is enacted.

Repeal of the health secretary’s duty to provide health services

Under current law the secretary of state has a duty to “promote” a comprehensive health service and, for that purpose, a duty to provide specific services throughout England to meet all reasonable requirements.2 Although the secretary of state will continue to have a duty to “promote” a comprehensive health service, clause 12 of the bill changes the duty to provide to a duty to arrange, which it transfers from the health secretary to CCGs. This weakens the health secretary’s overarching duty because primary legislation …

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