38 degrees legal briefing

8/3/2019 38 Degrees Legal Briefing

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Legal Analysis of the Clause 1 Amendments

Clause 1 amendments

This Briefng comments on:

(1) the Williams, Thornton and Mackay duty amendments to Clause 1 (secon

1(2)) relang to the duty to provide Page 2, lines 2-4

(2) the Thornton defnion amendment to Clause 1 relang to a defnion o

the health service in England Page 2, line 7

(3) the absence o any tabled amendment to Clause 1 (secon 1(3)) relang to

services being ree o charge

(1) the Williams, Thornton and Mackay amendments to Clause 1 (secon 1(2)) relang

to the duty to provide Page 2, lines 2-4

The Williams duty amendment tabled by Baroness Williams o Crosby, Lord Patel and

Baroness Finlay o Llanda is as ollows:

Page 2, line 2, leave out subsecon (2) and insert

( ) The Secretary o State must or that purpose provide or secure the provision

o services according to this Act.

O the three amendments currently tabled in relaon to Clause 1: secon 1(2) (as at 21October 2011), the Williams amendment might appear the strongest, as it declares

clearly the Secretary o States duty to provide or secure provision o services in

accordance with the Act. It achieves this by almost exactly reproducing the current

secon 1(2) o the Naonal Health Service Act 2006 though it changes in accordance

with to according to, and whether there is any dierence in meaning between these

two phrases is unclear.

However, the amendment on its own is not enough, because just like the current

secon 1(2), it is not a stand-alone duty: it would depend or its meaning on other

provisions o the Act. And because no other provision o the Bill currently requires theSecretary o State to provide or secure provision o health services, then without other

changes, namely to Clause 10, it would be essenally without any real eect.

The Thornton duty amendment tabled by Baroness Thornton, Lord Hunt o Kings

Heath and Baroness Finlay o Llanda is as ollows:

Page 2, line 3, aer to insert provide or

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This amendment is weaker than the Williams amendment, because it would accept the

replacement o the current secon 1(2) with the proposed secon 1(2) in Clause 1, and

add in provision, as well as securing provision, so that i the amendment was accepted

the new secon 1(2) would read: For that purpose, the Secretary o State must exercise

the uncons conerred by this Act so as to provide or secure that services are providedin accordance with this Act.

Essenally though, this is the wording (with the excepon o provide or) that the

Constuon Commiee considered, and really adds nothing o substance. Again, the

addion o the words or provide aach to nothing i the Secretary o State has no

other uncons which require him/her to provide services.

The Mackay duty amendment tabled by Lord Mackay o Clashern is as ollows:

Page 2, leave out lines 2 to 4 and insert

(2) For that purpose, the Secretary o State

(a) retains ulmate responsibility to parliament or the provision o the health

service in England, and

(b) must exercise the intervenon and other uncons o the Secretary o State

in relaon to that health service so as to secure that services are provided in

accordance with this Act.

Page 2, line 7, at end insert

(4) For the purposes o this secon, the intervenon uncons o the Secretary

o State in relaon to the health service in England are the uncons o the

Secretary o State under(a) secon 13Z1 (ailure by the Board to discharge any o its uncons),

(b) secon 253 (emergency powers),

(c) secon 82 o the Health and Social Care Act 2008 (ailure by Care Quality

Commission to discharge uncons),

(d) secon 67 o the Health and Social Care Act 2011 (Monitor: ailure to perorm

uncons),

(e) secon 242 o that Act (ailure by NICE to discharge any o its uncons),

() secon 266 o that Act (ailure by the Inormaon Centre to discharge any o

its uncons), and

(g) secon 285 o that Act (breaches o dues to co-operate).

The Mackay amendment is both dangerous and enlightening. It introduces a polical,

rather than a legal, statement as subsecon (a), which is unlikely to get past the

Parliamentary draughtspersons. More importantly in (b) it makes clear that the ocus o

the new secon 1(2) is intervenon by the giving o direcons in the event o seven

listed circumstances o ailures, emergencies and breaches o duty to cooperate. This is

a ar cry rom the current secon 1(2), and demonstrates the governments intenon o

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removing the Secretary o States duty to provide or secure provision o health services

in England.

Although the Mackay amendment also reers to other uncons, in this regard it is just

like the governments proposed secon 1(2) in Clause 1, and oers nothing.

What should be done about secon 1(2)?

The scheme o the Bill is to get rid o the governments duty to provide or secure

provision o health services in England. This current duty is based on secon 1(2) and, in

parcular, secon 3(1) o the 2006 Act. By removing the Secretary o States duty to

provide in secon 3(1), the reerence to that duty in secon 1(2) becomes virtually

meaningless. These two subsecons thereore need to be considered together.

The Williams amendment would appear to be equal to the job o maintaining the

current posion, ifthe Secretary o States duty to provide was retained in secon 3(1).

The Thornton and Mackay amendments would not be equal to the job in that event,

because they do not depend on secon 3(1) or their meaning and eect (but equally, i

the Secretary o States duty to provide was retained in secon 3(1), there would be no

sense in the governments proposed secon 1(2)).

If the Secretary o States duty to provide was not retained in secon 3(1) as is

currently proposed in Clause 10 then it is dicult to see how the current posion

could be maintained, without giving dues to provide or secure provision to the NHS

Commissioning Board and clinical commissioning groups.

For example, secon 1(2) could read:

The Secretary o State must or that purpose provide or secure provision o

services throughout England [according to][in accordance with] this Act, and the

exercise of the funcons of the NHS Commissioning Board and clinical

commissioning groups shall be regarded as exercised by the Secretary of

State.

This wording would mirror the current secon 3(2):

services provided under

(a)secon 83(2) (primary medical services), secon 99(2) (primary dentalservices) or secon 115(4) (primary ophthalmic services), or

(b)a general medical services contract, a general dental services contract

or a general ophthalmic services contract,

must be regarded as provided by the Secretary o State.

But it is weaker than presently because the Board and CCGs do not provide or secure

provision.

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Another possible ormulaon o secon 1(2) might thereore be:

The Secretary o State must or that purpose provide or secure provision o

services throughout England [according to][in accordance with] this Act, and the

exercise of the funcons of the NHS Commissioning Board and clinical

commissioning groups shall be regarded as exercised in furtherance of thatduty.

But this is sll not enough because under the current system, PCTs have the duty to

provide or secure provision (through delegaon, but also in some specifc circumstances

directly) and when they commission, there is always the backdrop o that duty. I the

exercise o Board and CCG uncons was to be regarded as being in urtherance o the

Secretary o States duty, there would sll be a gap in the statutory scheme, because

CCGs and the Board do not have a duty to provide or secure provision.

The conclusion that must be reached is that it is dicult to see how, i the Secretary o

States duty to provide under secon 3(1) is repealed, an amendment to secon 1(2)

along the above lines would be sucient to maintain the current posion.

Whatever amendment is made to s1(2) it must be recognised that it cannot be amended

to give it the strength it now has in the 2006 Act, simply because the major uncon o

the Secretary o State to which s1(2) applies, namely the duty to provide in s3, is being

repealed.

(2) the Thornton denion amendment to Clause 1 relang to a denion of the

health service in England Page 2, line 7

The Thornton defnion amendment tabled by Baroness Thornton and Lord Hunt o

Kings Heath is as ollows:

Page 2, line 7, at end insert

( ) For the purposes o this Act the health service in England is defned as

those services provided under secon 3 o this Act.

This would be a disastrous defnion o the health service in England because the

services listed under the proposed new secon 3 do not provide a comprehensivedefnion o the NHS: health services would also be provided under several other

secons, including secons 2A, 2B and 3A, and under Schedule 1. But we suspect that it

is a probing amendment, and that it helpully raises the queson o what the health

service in England would consist o i the Bill was enacted.

Currently there is no defnion, and it would seem to make sense to include one not

least because the proposed changes to secon 1(3) would mean that the qualifed

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guarantee o ree access to health services would apply in uture to services provided as

part o the health service in England. At present, secon 1(3) guarantees ree access to

services so provided by the Secretary o State pursuant to his duty to provide or

secure provision in accordance with the Act under secon 1(2).

It is also necessary to be clear that services provided under public health uncons(Clause 8: secon 2A, and Clause 9: secon 2B) are also part o the health service. But at

the moment, or the purposes o Part 3 o the Bill (relang to Monitor, Compeon,

Licensing, Pricing etc. Clauses 58 147), it is provided in Clause 60(4) as ollows:

the NHS means the comprehensive health service connued under secon 1(1) o the

Naonal Health Service Act 2006, except that part o it that is provided in pursuance o

the public health uncons (within the meaning o that Act) o the Secretary o State or

local authories.

This seems to imply that public health services are part o the health service but

obviously they would not be covered by the Thornton defnion amendment.

However, it remains unclear why there should be a defnion o the NHS or the

purposes o Part 3 which is dierent to the rest o the Bill. Put another way: why does

the NHS mean something dierent rom the health service in England, at least or the

purposes o compeon, pricing and the like in Part 3?

Clause 11: new secon 3A would coner a power on CCGs to arrange services or the

purposes o the health service. These would also be excluded by the Thornton

amendment.

It would thereore be wise to clariy these issues beore adopng a defnion o thehealth service in England.

(3) the absence of any tabled amendment to Clause 1 (secon 1(3)) relang to services

being free of charge

It is o concern that no amendment has been tabled (as at 21 October 2011) in relaon

to Clause 1: secon 1(3).

At present, secon 1(3) o the 2006 Act reads:

(3) The services so provided must be ree o charge except in so ar as themaking and recovery o charges is expressly provided or by or under any

enactment, whenever passed.

Under Clause 1, this would read:

(3) The services provided as part of the health service in England must be ree

o charge except in so ar as the making and recovery o charges is expressly

provided or by or under any enactment, whenever passed.

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The dierences between the two are highlighted.

I the current posion is to be maintained, secon 1(3) should not be changed. I the Act

is amended, this makes a comprehensive defnion o the health service in England,

even more crucial.

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