Section 46 and Schedule 6 to the Health and Care Act 2022 introduce a new Schedule 10A to the National Health Service Act 2006 (“the NHS Act”) which gives the Secretary of State power to “call in” proposed changes to local services. If a decision is called in, the Secretary of State will become the primary decision maker in place of the local commissioning body, namely an Integrated Care Board (“ICB”) or NHS England.
Local reconfiguration of NHS services can be hugely politically contentious. Traditionally, Secretaries of State have been wary if not downright hostile to adopting the role of decision maker when a local A & E falls to be closed or a maternity service is proposed to be downgraded. Ministers have usually been grateful to leave these decisions to be taken by local NHS bodies; that means the Secretary of State is not seen as being politically responsible for sensible or even essential but unpopular local decisions.
The present law is set out in a paper on the Landmark website. In summary, Regulation 23 of the Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013 (“the 2013 Regulations”) creates a power on a local authority to scrutinise the functioning of local NHS services. Where local government operates “two tiers” of local authorities, the Health Overview and Scrutiny Committee (“HOSC”) is a committee of the local authority that discharges social functions, which will usually be the county council as opposed to a district council. That Regulation also allows the HOSC to refer an NHS reconfiguration decision to the Secretary of State for review. A referral can be made to the Secretary of State if “the authority considers that the proposal would not be in the interests of the health service in its area”. However, this is a power to refer after a local NHS decision has been made.
This all changes under the new procedure. Regulations are required to be made which will define a “notifiable” reconfiguration proposal. This is likely to be one with significant effects for local people. Where a local NHS commissioning body proposes to consult on a notifiable reconfiguration, it must first notify the Secretary of State. The making of a notification gives the Secretary of State has the power to call in the decision (but the Secretary of State is under no legal duty to do so). If the Secretary of State does call in the decision, the Secretary of State either becomes the primary decision maker in place of the NHS commissioning body or can direct the NHS commissioning body about how the decision should be made
Once a matter has been called in, Schedule 10A provides that the Secretary of State has a period of 6 months to either take the decision himself or herself or to require the local NHS commissioning body to take certain steps (such as undertaking a further consultation exercise or commissioning a specialist report) before any decision is taken. In the meantime, the local NHS commissioning body cannot press ahead with the reconfiguration plans.
Once implemented, these will become powerful provisions. They have the potential to remove local decision-making and, as a result, may pull the Secretary of State directly into areas of intense local political controversy, whether the powers are used or not. Experience of planning shows that a decision not to exercise call in powers can be just as controversial as a decision to do so. Paradoxically, where a call in decision is made, there is no legal duty on the Secretary of State to consult the public about the proposed reconfiguration. Local campaigners might therefore call the Secretary of State to call in a controversial proposal only to find that a consequence of this is that they lose the right to have their say in a consultation.
However, the Secretary of State also has to publish guidance around the exercise of these powers.
It is recently unclear whether these new call in powers are intended to exist alongside the HOSC powers in the 2013 Regulations or whether they will operate as a replacement for those provisions, but that will become clear when the new Regulations are published.
David Lock QC is a barrister, has co-authored NHS Law and Practice with Hannah Gibbs and is a visiting professor in practice at the London School of Economics.