Health Bill analysis: Lords likely to win policy shifts

The government’s Health Bill will return to parliament tomorrow where the government is hoping it will be approved and move a step close to becoming law.

Assuming it clears the latest hurdle – which is likely despite concerted opposition by the Labour party and some crossbench peers – the bill will next move to a committee stage.

Peers will call for specific changes and the DH - known to be increasingly worried about delay - is widely expected to accept some of them. The outcome will depend on the scale of opposition, and whether compromise can be agreed.

Failure to reach agreement on policy changes would risk, for the government, continued delay to the bill and ultimately the risk of it falling to be passed altogether.

Here HSJ looks at the most likely changes.

Secretary of state and accountability

The government has said it is open to changing the bill to make clear the duties and role of the health secretary. The government could potentially accept the proposal for a preamble to the bill which would reaffirm his or her accountability to parliament, and responsibility for a comprehensive service. However, that is a very uncommon approach, and a government source said it was more likely to change the text of the bill itself.

Aside from the health secretary’s role, the Lords may wish to see more accountability and reporting requirements for new quangos, for example the NHS Commissioning Board, Monitor, and Public Health England. These among other issues are likely to be probed by the Lords delegated powers and regulatory reform committee, which will report in coming weeks.

Peers are likely to ask for clarity about how clinical commissioning groups will be authorised and held to account from above. The DH has already begun outlining these plans - and they are unlikely to be put in the bill itself - but the Lords may succeed in drawing out more detail.

Conversely, some will raise concerns about over-centralisation of power, particularly with the NHS Commissioning Board. They may secure assurances that local commissioning groups will be free to act, with limits to the role of clinical senates, networks and health and wellbeing boards confirmed.

Some concession is likely on public and patient involvement. This could be in the form of strengthening HealthWatch, or adding detail to organisations’ duty to involve the public. Another possibility is introducing a public “right to challenge” NHS provision if they are not happy, something proposed by the NHS Future Forum but not yet addressed by the government.

Clinical commissioning groups and governance

One likely further change is to the government’s proposed quality premium - the pay for commissioning performance bonus. In the summer the DH changed the bill to stress payments would be for “quality” performance rather than finance. But many still have concerns about the potential incentive to trade care standards for cash. The government could conform the cash can be spent only in services, rather than going into practice income, or scrap the idea altogether.

The government will be reluctant to put further CCG governance requirements in the bill, despite broader concerns about conflict of interest, but may bring forward detail which is due to be published in guidance next month. It could touch on the proposed requirement for CCGs to publish their contracts, and how independent members of their boards will be appointed.

Monitor and provider reform

The government has already hinted it will further change the bill in relation to the foundation trust private patient income cap. This is likely to require foundation trusts to “explain” how they will use this income for NHS patients’ benefit; and potentially allow Monitor to impose further private income limits - a solution proposed by Baroness Shirley Williams.

There are many calls for trust mergers to be overseen by Monitor, rather than the Office of Fair Trading, as proposed in the bill.

The foundation trust failure regime, which was introduced late in the Commons, will be scrutinised in detail. In light of the Mid Staffordshire Foundation Trust inquiry, the government may be pressed for a general rethink on policy for dealing with services which are badly performing on quality, finance or both.

Competition and integration

The government will be pressed to explain in more detail what regulation of competition and integration by Monitor will look like, and how Monitor, the NHS Commissioning Board and clinical commissioning groups will work together. It could further restrict Monitor’s potential for proactively stimulating competition.

A common call from those opposed to independent sector expansion is for commissioners to be required to publish an impact assessment of the affect on existing provision, each time they apply “any qualified provider” contracting to a service.

Public health

Peers - reflecting huge concern across the NHS about the issue - will call for government guarantees that public health capacity will be protected in cash-strapped and politically motivated local authorities. One plausible solution would be to make directors if public health report to Public Health England as well as to councils, and to strengthen PHE by making it an independent strategic health authority.

Education and training

The government may be forced to give assurances that national education planning will remain, and that regional deaneries will be given a medium or long-term future.