Bill casts 'doubt' over Monitor's independence from health secretary

The bill gives the health secretary power to “direct Monitor in cases of serious failure by Monitor to carry out its functions,” the accompanying memorandum states.

Beachcroft partner Jeremy Roper told HSJ the new proposed power gave the health secretary far greater and wider powers than those proposed by the previous government in relation to deauthorising foundation trusts.

At the time those proposed powers sparked uproar among foundation trusts and Monitor, leading to accusations of “knee jerk” policymaking and allusions to the infamous Dangerous Dogs Act.

But Mr Roper said the power proposed in the new bill went much further as it would not only apply to deauthorisation cases but was “left open” as to the contexts it could be used in.

However he said he believed the power would only be used in “extreme” circumstances because by invoking it, the health secretary would be admitting Monitor had “failed” in its duties.

He said the real issue was the potential the existence of the power would have to undermine the authority of Monitor as it would create doubt over its willingness to go against the government.

He said: “If Monitor is having a disagreement with the health secretary and Monitor knows he [the health secretary] can just get his own way, does that affect Monitor? Monitor will always say ‘oh no, no’ but that doubt will always be there.”

The power would also allow the health secretary to go over Monitor’s head and instruct providers, the NHS Commissioning Board and commissioners. However, Mr Roper said it was important to stress that in doing so the health secretary could only issue directions which Monitor itself had power to issue.

The bill memorandum states: “If Monitor fails to comply with such a direction, the secretary of state may discharge the function that the direction relates to or make arrangements for another person to discharge the function on behalf of the secretary of state.”

Foundation Trust Network director Sue Slipman said it was imperative the health secretary use the power “rationally and justifiably” and “only when such a failure is irretrievable and proven”.

She added: “The problem at the moment is that there is no process outlined on the face of the Bill through which the secretary of state needs to demonstrate that he is acting rationally. It must not be a subjective judgement but one based on transparent criteria that make it open to challenge.”