The Health Bill: what changes when NHS England is abolished?
The long anticipated Health Bill has been published, proposing the formal changes in law to implement the proposed reforms of the NHS as announced by the (former) Secretary of State (SoS), Wes Streeting.
The very first clause of the new Bill abolishes NHS England. Much of the remainder of the Bill is concerned with the consequential and technical amendments to existing legislation to remove references to NHS England and make relevant transfers of powers and liabilities.
We highlight some of the key proposals of the Bill as introduced to Parliament below. More detailed insights into the impacts of these proposals will follow. This is just a summary, there are a large number of technical changes being introduced which are not covered in this briefing.
Centralisation of powers
With the abolition of NHS England, responsibility for the health service more clearly sits with the SoS.
As such, much wider powers of direction are included in the Bill permitting the SoS to give directions to ICBs and Foundation Trusts about how they exercise their functions. These proposed powers do not require these bodies to be failing for such directions to be issued (as is often the case currently). These powers of direction are in addition to the existing powers to give directions to other NHS bodies which have always been in place.
Similarly, a power to provide assistance and support (including the provision of financial assistance, staff services or other resources) is being granted in flexible manner to the SoS.
Functions on the move
Commissioning
The Bill sets the intended destinations for many of NHS England’s functions. NHS England’s staff, property and liabilities (incl. contracts) are to be transferred using transfer scheme(s), which have not yet been published.
As anticipated, the Bill proposes transferring the commissioning of primary care (medical, dental, ophthalmic and pharmacy), prisons/detained estate and some specialised services to ICBs.
Commissioning functions relating to the armed forces and high secure psychiatric services will transfer to the SoS. The Bill anticipates some highlight specialised services will transfer to the SoS, but these will be set out in later regulations.
The power of enforcement of patient choice requirements will now move to the Secretary of State.
Service reconfiguration
The Bill will remove the duty for NHS commissioning bodies to notify the Secretary of State of a proposed notifiable reconfiguration of NHS services once NHSE is abolished and DHSC has taken over the regions.
Performers lists
NHS England currently manages the lists of individual GPs, Dentists and Opticians who provide services in primary care settings in England. The Bill is moving this function to the Secretary of State, although as with other functions this could be delegated to other bodies to perform. This point is expressly highlighted in the Bill’s explanatory notes.
Health education
With the abolition of NHS England, this function will return to the Secretary of State, although this could (as with other functions) be delegated to another body.
Changes to providers
Trusts and Foundation Trusts
The Bill provides for the oversight of NHS foundation trusts, NHS trusts and independent sector providers to be conferred on the Secretary of State.
Foundation Trusts will no longer be required to have a Council of Governors, although any particular process for removing existing Councils is not detailed in the Bill. The power to approve changes to the Trust’s Constitution will sit with the SoS, rather than the Council of Governors.
A new power to convert failing foundation trusts into NHS Trusts is included in the Bill. This sits alongside the announced greater freedoms for foundation trusts and the creation of Advanced Foundation Trusts. There is no specific legislative process for the creation of Advanced Foundation Trusts. There are also new provisions into the NHS Act 2006 enabling the Secretary of State to convert an NHS foundation trust into an NHS trust by order in certain prescribed circumstances, rather than through the previous application process (which is being retained).
The bill will confer new functions on the SoS in relation to the appointment, removal and suspension of NHS foundation trust directors. These are the same as the powers which the SoS has in relation to NHS Trusts’ directors.
A new power will enable the SoS to make orders imposing limits on the annual capital or revenue expenditure by an NHS foundation trust. This replaces an existing power exercisable by NHS England which applied only to capital expenditure.
As noted above, foundation trusts will become subject to a power of direction by the SoS.
Data sharing/ Single Patient Record
It is intended that a Single Patient Record will unify patient information across health and social care. The ambition is that relevant professionals will be able to access a single reliable source of data on each patient.
The Bill allows for new regulations to create and operate this system, allowing patient information to be shared with patients and relevant professionals. This will provide a secure legal underpinning for this proposed data processing.
The explanatory notes confirm that it is not intended to provide a new gateway for patient data to be used for secondary purposes i.e. for purposes other than the direct provision of care. Aspects of the single patient record have been commented on with some concerns as to the access to, and use of, patient data outside of care services. The Bill does not, as introduced, expand on the secondary uses to which data can be put.
Abolition of other bodies
Following the recommendations of the Dash review, the Health Services Safety Investigation Body (HSSIB) will be abolished, and its functions merged with the Care Quality Commission (CQC).
Similarly, the Bill abolishes Healthwatch England. Healthwatch England’s functions to gather the views of patient and service users about their experiences of health and care services will be transferred to the Secretary of State, who will have responsibility for overseeing the collection of more informed feedback from patients and carers.
The Bill abolishes Local Healthwatch. Local Healthwatch arrangements are currently the responsibility of local authorities. The statutory functions of Local Healthwatch are to be transferred to ICBs for health services, and to local authorities for social care services and their public health services.
How Hempsons can help
The health system has undergone significant recent changes brought about through the Health and Care Act 2022. Many of the proposed changes under the Health Bill have been previously announced in broad terms, although the detail has awaited the publication of this bill. Although much will await further directions, regulations and guidance, the bill has clarified the direction of travel for the NHS.
The reforms to the structures and organisations within the NHS over the last 10 years have been dramatic. Our teams across primary care, corporate governance, employment and regulation have advised clients across the system through multiple reconfigurations and changes. We look forward to advising our clients on navigating the next steps for the NHS.