Health Bill: changes risk ‘paper duties’ and central pressure

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Changes to the health bill risk propagating procedural requirements and increasing pressure on the health secretary to intervene, a lawyer has warned.

Government amendments tabled yesterday included new requirements for clinical commissioning groups to “promote innovation”, and give clinical commissioning groups, the NHS Commissioning Board and Monitor new roles in promoting integration.

Bevan Brittan LLP partner David Owens also highlighted an “over prescriptive” process for CCGs to consult with health and wellbeing boards on their plans.

He said: “It is terribly prescriptive and the danger is it will tend towards making [CCGs] more bureaucratic – rather than the fleet of foot organisations some of them would like to be.”

Mr Owens pointed to requirements for CCGs to report on how they are fulfilling other roles.

He said: “There is a danger it becomes a bit like world class commissioning [assurance] –you have to submit reports to the [commissioning] board about how you have fulfilled all these duties but it is an exercise on paper rather than actually doing stuff.”

Mr Owens said there appeared to be a shift towards “more levers” for the health secretary and Department of Health in the amendments. He said it is a response to concern the government was giving up responsibility for the service.

He said: “The risk is the more you emphasise the secretary of state’s responsibility the more you are going to increase pressure on the holder of the office to intervene.”

However, some measures appear to increase autonomy.

One change says the health secretary may only give directions to the board if there is a “significant failure”, and must publish reasons, whereas previously the bar for intervention was only “failure”.

In addition, the amendments allow the health secretary to give his or her mandate to the NHS Commissioning Board – setting out what it must deliver – for more than one year at a time. However, Mr Owens said: “In practice they will try to provide a degree of consistency but [legislation still] gives them wriggle room [to include new requirements each year] if something is urgent, or politically urgent.”