The Health and Social Care Reform White Paper…

This is a brief commentary on the proposed powers of the Secretary of State for Health and Social Care, set out in the recent White Paper, which purport to “improve accountability and enhance public confidence”. To this effect, new powers have been proposed, including: 1) enhanced powers to direct NHS England including reforms to the Mandate process; 2) enhanced powers to intervene in service reconfigurations; 3) a power to amend or abolish Arms Length Bodies (ALBs) and 4) a power to require data from all registered adult social care providers.

Paragraphs 5.61- 5.94 of the White Paper set out a range of legislative proposals aimed at “improving accountability and enhancing public confidence” in the health and social care system. The proposed formalisation of the merger of NHS England and NHS Improvement will be coupled with the new power to set the overarching direction of the NHS outside of the current annual Mandate and, in particular, to give directions to NHS England [§5.68 on all “relevant matters”] but not to local NHS bodies. This is a significant change as when NHS England was created, the Secretary of State was not given direction making power over it. The new powers mean the significance of the Mandate is substantially reduced as it will no longer be renewed as part of an annual process, and the Secretary of State will be able to direct NHS England at any time to “respond to changing needs”. This effectively removes NHS England’s operational independence; it will instead be subject to the direction of the Secretary of State. It thus makes sense why the DHSC has included these powers under the “accountability” heading – it is right that in theory with this power will come a greater level of political accountability for the day-to-day operation of the NHS. However, these proposed reforms have not failed to attract criticism. There is little specificity as to the nature of these powers and it remains to be seen the circumstances in which they might be used.

Proposals under this heading also include enhancing the Secretary of State’s powers to intervene in service reconfigurations. At present, the Secretary of State can only intervene after a local authority requests she/he makes a referral to the Independent Reconfiguration Panel (IRP). Abolition of the IRP [§1.16] has been proposed allowing the Secretary of State to intervene earlier and proactively. These powers suggest that the Secretary of State is reasserting political control over this decision making process, thus changing the present balance and restoring the position to pre-IRP days. Allowing the Secretary of State to intervene at any stage of a service reconfiguration process clearly increases ministerial involvement in operational matters, risking the politicisation of contested decisions.

New powers are proposed to enable the Secretary of State to amend or abolish Arm’s Length Bodies (ALBs), including the power to transfer functions between them. According to the White Paper, these powers are intended to allow ALBs, with their differing functions and operations to “work more closely in collaborative ways in order to support and improve people’s health and care” [§5.86]. What the White Paper appears to suggest is that there will be “Henry VIII clauses” in the bill - enabling ministers to amend or repeal provisions in primary legislation concerning ALBs via secondary legislation, a process which is subject to varying degrees of parliamentary scrutiny. Naturally, therefore, this could be a very significant change. It is not clear at the moment if any ALBs – NICE, the CQC, and so on – would be exempt, or if there would be any kind of consultation procedure.

In addition, the proposals will give the Secretary of State the power to require data from all registered adult social care providers about all services they provide, whether funded by local authorities or privately by individuals; and require data from private providers of health care [§1.19]. This is potentially an extremely controversial power. There is no clarity on whether the required data will be fully or partly anonymised, which could lead to potential article 8 ECHR issues.

Hannah Gibbs an expert across public law, including health and social care law. She is also a longstanding teacher in medical law at the London School of Economics.

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