Birmingham city centre - chinese quarter

Blogpost by Dr Mary Guy (Lancaster) and Professor Jean McHale (Birmingham).

Once-in-a-generation NHS reforms are not new, but what is put into – and left out of – new legislation can be revealing. The Health and Social Care Act 2012 (HSCA 2012) marked the last such wide-ranging reform, diluting ministerial oversight of the English NHS with the evolution of quasi-independent agencies (notably Public Health England, NHS England and NHS Improvement) and seemingly promoting a localism focus with greater competence accruing to Local Authorities and the creation of Clinical Commissioning Groups. This might be read as reflecting the experiment in coalition government between the Conservatives and Liberal Democrats, as might the tortuous passage of the legislation, characterised by an unprecedented three-month pause in spring 2011 to address controversies.

We are currently awaiting the final Lords stages of the Health and Care Bill, apparently consistent with wishes for new legislation to be in place by April 2022. The introduction of the Health and Care Bill in the Commons in July 2021 indicates the limited nature of amendments thus far, and perhaps also limited scrutiny. Insofar as the Health and Care Bill builds on the 2019 NHS Long Term Plan drawn up by NHS England, this may suggest a move away from the “top-down reorganisation” which ultimately characterised the HSCA 2012 reforms. However, the Health and Care Bill goes beyond the NHS Long Term Plan, with a re-expansion of ministerial oversight, and the incorporation of social care reforms among the aspects highlighted in the media.

In September 2021, the Centre for Health Law, Science and Policy (Birmingham) hosted a webinar to consider the Health and Care Bill (as introduced) prior to the Commons debates which took place during the autumn. This discussion highlighted diverse aspects which reflect not only ongoing criticisms of the HSCA 2012 (relating to public health oversight and competition), but also proposals in need of further development (regarding hospital food standards) and set to be enshrined in legislation for the first time (relating to medical examiners and patient safety).

In “Hospital food standards in the Health and Care Bill: the devil is in the unknown details”, Dr Ruth Stirton (Sussex) assessed whether the hospital food standards measures proposed will provide sufficient safeguards. The motivation for engaging with hospital food standards at this point in time might be explained by reference to recent media attention and the 2020 Independent Review of NHS Hospital Food. However, Stirton suggested that the proposals merely amount to “an enabling provision which says nothing about the detail of the regulations that could be written”, and outlined two models – minimal and maximal – based on the independent review to speculate what the regulations could look like. Ultimately, Stirton concluded that a major resourcing commitment would be needed to ensure that the proposals as they stood improve standards and enhance patient health, rather than make the current situation worse.

Professor Jean McHale (Birmingham) considered the creation of a new statutory body to investigate adverse effects impacting on patient safety with “The Health Services Safety Investigations Body and the Health and Care Bill 2021: Safe Spaces or a worrying lack of candour?”. The current proposals invited a “back to the future” analysis to draw out the parallels and distinctions with earlier developments, such as the move towards a statutory duty of candour, the creation and demise (with the HSCA 2012) of the National Patient Safety Agency and the recent Health Service Safety Investigations Bill 2019, in response to generations of investigations spanning the Public Inquiry into Children’s Heart Surgery at Bristol Royal Infirmary, the Shipman Inquiry and the Mid Staffordshire NHS Foundation Trust Public Inquiry. McHale outlined various questions arising from the proposals, arguing that these clash with the “duty of candour” in healthcare, suggesting a retrograde step which will undermine trust.

The Health and Care Bill further proposes a statutory medical examiner system within the NHS to scrutinise deaths which do not involve a coroner. In “Medical Examiners in the Health and Care Bill: reactive and non-specific, but reassuring?”, Dr Murray Earle (Edinburgh) considered the major recommendation of the Shipman Inquiry to appoint Medical Examiners and set this in the context of wider concerns about death and dying and similar reforms in Scotland, as well as the framework afforded by the Coroners and Justice Act 2009 and the HSCA 2012. Earle argued that the provisions as introduced represent a missed opportunity to institute a credible regulatory system, leaving unresolved many important issues.

Professor Keith Syrett (Bristol) examined the Health and Care Bill proposals to transfer the HSCA 2012 power of local authorities regarding water fluoridation schemes to the Secretary of State for Health and Social Care in “Fluoridation: removing a barrier or opening the policy window to population health?”. Using Kingdon’s multiple streams framework, Syrett also considered the scope for a policy window to open to a more interventionist and centralised approach to public health more generally in view of both the Health and Care Bill and the pandemic.

One long-standing change to be given effect by the Health and Care Bill is repeal of the controversial competition provisions of the HSCA 2012. In “Removing competition from the English NHS - more questions than answers?”, Dr Mary Guy (Lancaster) outlined the removal of the Competition and Markets Authority functions regarding NHS mergers and competition law. While this may appear a straightforward “dejuridification” to contrast with Davies’ concerns about “juridification” of public policy matters, Guy noted that other attempts to repeal the HSCA 2012 competition provisions have taken different approaches to the Health and Care Bill.

Looking back, it might seem that overarching questions raised by the webinar included why the Health and Care Bill included the range of themes it does, and why these proposals are being progressed at speed through the UK parliament at this point in time. After all, the policy backdrop of the COVID-19 pandemic and Brexit (with all its implications, including for the NHS workforce, thus implementation of reforms) is demonstrably more complicated than that which accompanied the HSCA 2012 reforms.

As the Health and Care Bill reaches its final stages in early 2022, work from the webinar is being developed for a special issue of the Northern Ireland Legal Quarterly (forthcoming 2022) to provide a first legal analysis of the new legislation.