The health and care bill: what’s changed in the Commons and what’s on the Lords’ agenda?
The health and care bill is progressing through parliament having completed its passage through report stage in the House of Commons, with ministers adamant that it will receive Royal Assent by the end of March. But what’s changed in the Commons and what may still change in the crucial weeks ahead?
Regulating care quality
As is usual in the House of Commons and especially with a government with an 80-seat majority, primarily only the government’s own amendments were successful. The key (expected) change at Committee Stage is a new clause 59 conferring statutory power for the CQC to regulate ICSs, with priorities set by the Secretary of State.
Like much of the bill, this clause is non-prescriptive – details of the manner of regulation are excluded from legislation. The CQC will pilot a methodology for reviewing ICSs, expanding on its system reviews of health and care.
Healthcare leaders would welcome the continuation of recent system reviews to help them understand patients’ experiences moving between different care providers, while avoiding duplication of provider ratings and NHS England’s System Oversight Framework. Additionally, new clauses 60 and 61 give the Secretary of State a greater role to intervene where they deem local authorities fail to meet their duties under the Care Act.
Social care
This less generous cap [on social care costs] is expected to exacerbate inequalities
In the highest profile amendment, the government narrowly won a vote of all MPs on a late proposal to exclude council-funded contributions from its new £86,000 cap on social care costs, only counting individual costs. This less generous cap is expected to exacerbate inequalities, while the social care funding plans don’t add to the overall social care budget and relieve the knock-on effect on the NHS.
A planned rebellion of Conservative peers to reverse the exclusion will attract most media attention and risk a defeat if the upcoming social care and integration white papers don’t win over critics.
Local service reconfigurations
New powers conferred in Schedule 6, for ministers to intervene at any stage in changes to local services, remain in the bill for now. As our chief executive Matthew Taylor has written, reconfiguring powers would increase lengthy delays from political interventions to clinically-led changes to clinical services, a top concern for NHS leaders who fear the existing effective process managed by the Independent Reconfiguration Panel will be circumvented.
This may delay or block necessary service changes, putting the quality and safety of patient care at risk. The NHS Confederation, together with the Local Government Association and the Centre for Governance and Scrutiny, has called for checks and balances to ensure ministers consider clinical advice, consult local government, and publish public interest rationale. Amendments to this effect were tabled but not moved to a vote in the Commons, but there will be much greater pressure to revise these powers in the House of Lords where the government lacks a majority.
Workforce planning
The House of Lords will also see concerted efforts to strengthen workforce planning, covered in clause 33. A coalition of Royal Colleges, supported by Jeremy Hunt and the NHS Confederation, are calling for two-yearly assessments of workforce needs (rather than at least every five years) and for independent assessments that cover both health and social care workforces. This would provide robust assessments of current and future workforce numbers consistent with the Office for Budget Responsibility long-term fiscal projections, strengthening the Department of Health and Social Care’s hand in negotiations with the Treasury for funding. Such a workforce amendment picked up support from some Conservative MPs in the Commons, but not enough to defeat the government’s majority.
ICS governance
The NHS Confederation supports maximum flexibility to tailor governance arrangements to local circumstances
To counter political accusations of alleged ‘privatisation,’ a government amendment now bans ‘individuals with significant private interests’ from a seat on integrated care boards (ICBs). Opposition efforts to extend the rule to integrated care providers failed, as did proposals to expand on the existing minimum ICB roles, with representatives from mental health providers, public health, social care, trade unions and others.
The NHS Confederation supports maximum flexibility to tailor governance arrangements to local circumstances and, crucially, the ability for the voluntary and social enterprise sector to make valuable contributions on ICBs.
Other changes
Various other amendments were also approved: Clause 13 now empowers NHS England to transfer staff and other assets from providers to ICBs, given that many non-statutory ICS executives are currently employed by providers. As this replicates provisions to transfer assets from CCGs to ICBs, the amendment also enables NHS England to transfer property from providers to ICBs; an interesting addition, but it is unclear if this will be used in practice.
Elsewhere, learning from the COVID-19 pandemic, a new clause 62 gives the government powers to control procurement of vaccines, pandemic treatments and similar products, avoiding wholesalers playing the market.
There were also uncontroversial amendments on restrictions on unhealthy advertising and banning virginity testing, while new medical examiner roles were put on a statutory footing and a backbench proposal to put cancer outcome targets in the NHS mandate was carried.
Next steps
The second reading of the bill in the House of Lords is scheduled for Tuesday 7 December, before a select group of peers considers amendments into the New Year and the whole House has the opportunity to propose wider amendments.
Other topics may feature more prominently in the Lords; the forthcoming publication of NHS England’s Provider Selection Regime, replacing mandatory tendering, may lead to increased scrutiny in procurement rules. It’s also unclear whether proposals speculated in the anticipated integration white paper may be added to the bill in the Lords.
Despite rumoured contingency planning to delay implementation of the bill, including the creation of ICSs, up to October 2022, ministers are adamant that the bill will receive Royal Assent by the end of March and come into effect in April.
The timetable is very tight. The ability of the Lords to delay the bill and the lack of a government majority in the Upper House will strengthen the hand of opposition parties and backbenches to make amendments where they failed in the Commons.
Edward Jones is senior policy adviser at the NHS Confederation. You can follow Edward on Twitter @EJCJones93
