The independent commentary on British political affairs.
The independent commentary on British political affairs.
May 2008
Vol. 11, No. 11
A People's War: Brenda Boardman | The shadow over Brown's plan's to change the way we are governed: … More…
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The Health and Social Care Bill has been described as a ‘portmanteau’ Bill because of its breadth, and a ‘skeleton’ Bill because of its dependence on secondary legislation, including Henry VIII powers.
Part 1 of the Bill establishes the Care Quality Commission (CQC) to replace the Healthcare Commission, Commission for Social Care Inspection, and Mental Health Act Commission. A Conservative-led cross-party coalition won the important concession that the CQC must now have regard to views expressed by or ‘on behalf of’ members of the public, but we hope that peers will put Local Involvement Networks on the face of the Bill in this context.
The government has as yet failed to confirm that the regulation of Social Care and the Mental Health Act will not be squeezed out by health priorities. It has drafted the Bill so as to prevent the CQC producing ‘special reviews’ before 2011 (after the next election) and has failed to give the Commission independence from the Secretary of State.
Finally it has not outlined how (with the CQC losing the complaints handling function of the Healthcare Commission) the consequent 11-fold increase in the work of the Ombudsman will be managed or funded, nor has it established a complaints framework for private funders in social care — a commitment the minister, Ivan Lewis MP, has made.
Part 2 establishes the Office of the Health Professions Adjudicator, a new executive NDPB (independent of the Department in its decisions, but not in its finances) to oversee the adjudication of fitness-to-practice cases for the Generral Medical Council and the General Optical Council. It also establishes the use of civil standard of proof in such hearings, instead of (as is current practice) the criminal standard, and lays out the framework for ‘responsible officers’. At report stage it was revealed that this body could cost an extra £20-30 on the registration fees of relevant professionals. In response to Conservative pressure the government has added powers for legally qualified chairs to oversee fitness-to-practice panels, but only in certain circumstances, and with the definition of ‘legally-qualified’ left to regulations. This was a recommendation of Lady Justice Smith in her Shipman inquiry report. The reasoning is twofold: a legally-qualified chair will dispatch proceedings more efficiently, and understand and fairly apply the ‘sliding scale’ of the civil standard of proof.
Part 3 amends the Public Health Act. Whilst it is designed to give flexibility to the executive in the face of undiscovered health or bio-security threats, it does bestow far-reaching and draconian powers on, for example, Justices of the Peace.
Part 4 establishes a ‘Health in Pregnancy Grant’, a one-off payment of £190 to mothers in the 25th week of pregnancy, as long as they are ordinarily resident, and have sought advice from a healthcare professional. This has been a source of great embarrassment to the government. The measure was announced by Gordon Brown in his 2006 pre-budget report, and re-announced by Alan Johnson on 12 September 2007, both claiming that this grant is for maternal nutrition in the last weeks of pregnancy, alongside the unsubstantiated claim that in that period ‘nutrition is most important’.
The minister, Ben Bradshaw MP, was forced to concede that ‘the nutritional benefits [of a cash payment] are better in early pregnancy’ — and in fact the government’s own data undermines even this.
Part 5 contains miscellaneous provisions including: reform of the NHS indemnity scheme to include independent providers to the NHS, proposals for weighing and measuring of children, direct payments for people who lack capacity within the meaning of the Mental Health Act 2005, and the establishment of the National Information Governance Board which will oversee, inter alia, data (including patient records) in the NHS IT programme.
Human rights issues underpinned debate on the Bill. Ben Bradshaw told the Committee that ‘the government are committed to ensuring that independent sector care homes are covered by the Human Rights Act’, but failed to take this opportunity to deliver that. Malnutrition, another rights-based issue, was discussed at length, and we hope peers will put malnutrition to be on the face of the Bill in the same terms as healthcare acquired infections.
Whilst the substance is often left to regulations, the Bill offers an opportunity for debate on a wide variety of issues, medical and legal, and we look forward to some significant amendments returned to the Commons.
Shadow Minister for Health Stephen O’Brien MP served on the Bill Committee.
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