In an era of health service reform that has been punctuated with queries of “what next?” it’s worth considering how the health service landscape would look if, as some are speculating, the Health and Social Care Bill is actually scrapped, says Beachcroft public law partner Stephen Hocking.
In short, the answer to the question of what will happen if the bill is jettisoned is “nothing” - the status quo would remain from a purely legal point of view. In light of the substantial work already in train to implement an infrastructure that would never make it onto the statute books, the question that arises is really a practical one.
One of the areas in which the evolution towards the position set out in the draft legislation is most advanced relates to primary care trust functions. PCT clusters have formed in advance of abolition and commissioning obligations are being increasingly shared with fledgling commissioning consortia.
In line with Dame Barbara Hakin’s letter of 26 October last year and the Department of Health’s PCT Cluster Implementation Guidance, changes have thus far been implemented within the current statutory framework (albeit with the help of a good deal of imagination and innovation). There is no legal reason why the new management structures and their cost-saving synergies cannot remain, and they continue to make good sense from a governance perspective.
The same applies to systems put in place in respect of GP buy-in to the commissioning process. These could conceivably continue under current primary and secondary legislation. Similarly, there is nothing to prevent unhelpful changes from being undone, subject to any specific Department of Health guidance.
Many have asked whether, if the bill is scrapped, reform might continue by way of secondary legislation. Whether there would be a will to make new regulations and directions under current legislation is a matter of policy. They could only be made, however, within the parameters of the NHS Act 2006 as it stands. This leaves considerably less scope for “radical” change than would be introduced by the bill.
Furthermore, many NHS bodies who have been marked for abolition are creatures of statute, specifically the NHS Act 2006. As such, nothing short of a new statute can abolish or substantially overhaul the functions of bodies such as NHS trusts, PCTs and/or strategic health authorities. New bodies might still be created, but they would generally be limited to special health authorities. Legislation would be required for the creation of NICE and the Health and Social Care Information Centre as statutory non-departmental public bodies rather than special health authorities as now.
There are, of course, other bodies whose fate is in the hands of those drafting the Health and Social Care Bill such as Monitor and the National Commissioning Board. Taking Monitor first, its role would remain as set out on today’s statute books – that of the independent regulator for foundation trusts. It will consider and approve applications from aspirant foundation trusts, for mergers and for changes to constitutions. The status quo will remain and competition would continue to fall largely outside of its remit.
As a result, the role of foundation trusts’ boards of governors will not change and the proposed licensing regime will not be imposed. The government will have to find new ways and means of dealing with providers.
As for the embryonic National Commissioning Board, it is still a twinkle in the Department of Health’s eye as it has not yet been established, even in its temporary form as a special health authority. It therefore has no current legal status, and it remains to be seen whether the government would move forward with its creation in any post-bill landscape. As mentioned above, in the absence of the introduction of another bill, NICE and the Health and Social Care Information Centre will stay as they are, although the Government may, of course, take the opportunity to tweak their respective roles under the secondary legislation under which they currently exist.
So, then, the NHS will continue to function as it does currently, for now at least. Calls for NHS reform have not necessarily quietened, but the nature of that reform and how it will be implemented is far from clear.