How health secretary’s new powers over the NHS will work

These possible interventions range from directing NHS England and other arm’s length bodies to getting involved in local reconfigurations.

What the bill says on the mandate

The NHS mandate “will remain the primary statutory mechanism for government to set objectives and requirements for the new NHS England,” the explanatory notes accompanying the bill say.

However, the bill proposes “the mandate duty should become more flexible, so that a mandate can be set at any time, ensuring there is always a mandate in place, and will remain in force until it is replaced by a new mandate”.

The government’s document argues this “will strengthen the ability of the mandate to set longer-term direction for the NHS, where appropriate, and ensure that each mandate can fully reflect the most up to date strategic priorities and associated government funding commitments for the NHS even where it is impractical for these to be determined in line with the annual financial cycle”.

Should the government replace a mandate within a year of its publication, NHS England will not be required to revise its own business plan. However, “it will need to set out in its annual report the progress it has made on any mandates in force for the relevant year,” the notes say.

On the SoS intervening in NHS England’s functions

The explanatory notes say the bill would give the health secretary new powers “to set direction and to intervene in relation to NHS England’s functions”.

In language which appears to give ministers significant scope, the notes say these new powers can be “issue[d] on specific matters or on a standing basis”. However, they should not be “used frequently”.

However, the bill does set out some areas where the health secretary cannot issue directions.

It says the minister could not use the new directions on issues “relating to the appointment or employment of a person” or on health services that benefit a “particular individual” or in relation to the provision of “any drug, treatment or the use of any diagnostic technique”.

The bill also said the secretary of state powers must only be used if deemed “to be in the public interest”.

On reconfigurations

The explanatory notes say the power to intervene in reconfigurations will only be relevant in a “minority of [reconfigurations] which are complex, a significant cause for public concern”.

Under the existing laws the health secretary can only intervene following a local authority referral, after which the Independent Reconfiguration Panel is asked for recommendations.

The government’s health white paper had proposed the scrapping of the IRP, but as reported by HSJ, the body has been retained.

The government document argues: “Whilst this [the existing system] can help with difficult cases, referrals can often come very late in the process, meaning ministers must account for service changes in Parliament without often having been meaningfully engaged on them themselves.”

It says the new provisions will: “Add a new discretionary power to the NHS Act 2006 for the Secretary of State to give a direction to NHS bodies or providers requiring a reconfiguration to be referred to him instead of being dealt with locally”.

It adds: “The Secretary of State will be able to use this call-in power at any stage of the reconfiguration process.”

On transfers of functions between arm’s length bodies

The secretary of state will have new powers to transfer functions between the health system’s different ALBs, except for some of the regulators which need to remain “independent”, the notes say.

A formal consultation would be required before any functions were transferred – as well as approval from both the House of Commons and the Lords, however.

Some non-departmental public bodies are to remain “out of scope given their particular, technical, regulatory functions and the need for them to be independent”. These include the Care Quality Commission, the National Institute for Health and Care Excellence and the Health Safety Investigation Branch.