Health secretary gains powers over NHS Commissioning Board in amended bill

The alteration was announced as the Department of Health admitted it would be making further changes to the bill, in addition to the 181 amendments tabled last week.

A well-placed source said a further round of changes would be tabled at the report stage of the bill, covering the failure regime for trusts, and patient confidentiality and information.

A briefing paper published on the first round of amendments says the health secretary will be able to intervene in “particular cases”, in the event of a “significant failure” by the board.

The document states: “It may be appropriate… for the secretary of state to intervene in a particular case if he is to discharge his own duty to promote a comprehensive health service.”

It says that such a power could be exercised if the board failed to allocate funds to a particular commissioning group, or if it did not commission a particular service that it had a statutory duty to commission.

NHS Confederation chief executive Mike Farrar told HSJ that the change represented a philosophical shift from the original proposals for the NHS Commissioning Board, which was planned to be “free from political interference”.

He said the measure would ensure that the secretary of state was ultimately accountable for the NHS.

He said although the power was intended to be “benign”, “there is a danger that if it is used inappropriately that you could be over-centralising, and not having the benefits of an effectively independent commissioning board”.

A senior DH source told HSJ that the change was a “backstop power” intended to cover extremely unlikely events such as the commissioning board “going AWOL” and failing to allocate funding to a commissioning group.

The source added that it was not the intent of the bill to allow the health secretary to intervene in any case which became politically contentious. “We’re not talking about provider failure at all,” the source said.

Other amendments to the bill cover the “quality premiums” designed to influence commissioning behaviour. It had already been announced that these premiums must be used to reward commissioning that “improves the quality of patient care.” The briefing adds that CCGs must “publish details of how the payments have been used” and that they cannot be paid in advance.

Such payments have been opposed by the British Medical Association, which said they could be used to incentivise GPs to withdraw treatment.

Capsticks partner Gerard Hanratty said despite the amendments the payment could still be used to cut down GPs’ referrals. “Any such reduction could form part of improving the quality of services which a patient receives in the community,” he said.

There will also be new requirements for CCGs to “promote innovation”.

Bevan Brittan LLP partner David Owens highlighted amendments which he said resulted in an “over prescriptive” process for CCGs to consult 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.”

CCGs will also have to “include provision for meetings of governing bodies to be open to the public, except where the consortium considers that it would not be in the public interest to permit members of the public to attend”.

However, it is unclear whether the amendments required openness in the same way as it is applied to NHS trusts and primary care trusts, through the Public Bodies (Admission to Meetings) Act 1960, Mr Owens said.

He also raised doubts as to whether the amendments regarding the role of Monitor were “substantive”.

Mr Owens said: “They have changed the emphasis – but Monitor is still going to have concurrent powers under the Competition Act with the Office of Fair Trading. That implies the expectation is competition law is going to apply to providers.”