Legislative proposals for a Health and Care Bill

On 11 February 2021 the Department of Health & Social Care published its legislative proposals for a Health and Care Bill: Integration and Innovation: working together to improve health and social care for all.  The proposals build on the NHS’s recommendations in the 2019 Long Term Plan, shaped by the recommendations of NHS England, reflecting the travel towards Integrated Care Systems (ICSs) and informed by experience since Covid-19. Over the next few weeks we will be publishing a series of alerts – summarising the main proposed changes. In this introduction, we focus on the key points in the white paper which seeks to deliver joined up care for everyone in England.

Proposals in the White Paper

1. For every part of England to be covered by an integrated care system (“ICS”)

The proposal is to establish a statutory ICS in each every part of England, made up of an ICS NHS Body and a separate ICS Health and Care Partnership, bringing together the NHS, local government and partners. The aim is to bring the allocative functions of the local CCG into the ICS NHS body. Responsibility for day to day running will fall to the ICS NHS body, with the Partnership bringing together local systems to support integration and develop a local plan across health and social care.  Other proposals include:

• legislation to ensure more effective data sharing across the system,
• a duty to collaborate on NHS organisations and local authorities,
• changes to the legal functioning of the Better Care Fund, and
• capital spending limits on Foundation Trusts where they are not working effectively to prioritise capital expenditure within their ICS, and risk breaching either system or national capital expenditure limits.

2. To reduce bureaucracy (in relation to the arrangement and commissioning of healthcare services)

The proposal is to give the NHS more flexibility about how it arranges the delivery of services, including in the fields of mergers and procurement.  Proposals include greater flexibility in the ability to engage in joint commissioning and pooling of funds, and power for NHS England to jointly commission with more than one ICS. The CMA will no longer have oversight over intra-NHS mergers; instead this will be overseen by NHS England. In relation to procurement, the proposal is to introduce flexibility, and to strip out some of the obligations regarding procurement of healthcare services: The set of Regulations introduced under the Health and Social Care Act 2012 (the NHS (Procurement, Patient Choice and Competition) Regulations (No. 2) 2013) will be repealed, and the commissioning of health care services will be removed from the Public Contracts Regulations 2015. 

3. A streamlined framework for national oversight

The proposal is to formally merge NHS England and NHS Improvement into a single legal organisation. In addition, the proposal is to ensure the Secretary of State for Health and Social Care has appropriate intervention powers with respect for relevant functions of NHS England, and powers to intervene in local service reconfiguration changes where required. 

4. Social Care and public health functions

The proposal is to ensure appropriate levels of oversight on provision and commissioning of social care, including the ability for the Secretary of State for Health and Social Care to make emergency payments directly to all social care providers, creating a standalone power for the Better Care Fund to separate it from the NHS mandate setting process. NHS England may be directed to take on specific public health functions, including tackling obesity and the fluoridation of water. 

5. Regulation

In keeping with the aim that any reforms must have safety and quality at their core, and building on the work of the Healthcare Safety Investigations Branch, the Health Service Safety Investigations Body (HSSIB) will be established as the new independent body to investigate incidents with wider implications for patient safety with an emphasis on supporting system learning and encouraging the spread of a culture of learning within the NHS. Additionally, every death is to be scrutinised by a coroner or a medical examiner appointed by an NHS body and the Medicines and Healthcare products Regulatory Agency should be permitted to develop and maintain publicly funded and operated medicine registries.   Proposals also cover the ability to set requirements regarding hospital food, and also powers to implement comprehensive reciprocal healthcare agreements with countries outside the EEA and Switzerland.

Next steps

The ambition is that the legislative proposals for health and care reform outlined in the White Paper will begin to be implemented in 2022.  There will be ongoing engagement with stakeholders across the health and care systems, Arm’s Length Bodies and Devolved Administrations on the details of proposals as they progress. The ambition is to implement legislation in a way which is enabling and flexible, and accompanied by wider reforms in areas such as data and finance. The Department of Health & Social Care states that the NHS has committed to consulting on the new provider selection regime regarding commissioning and procurement. At its heart the aim of the white paper is stated to be greater integration, reduced bureaucracy, and the facilitation of health and social care working in partnership.

Our next alert will consider the competition and procurements aspects of the white paper as we begin to unpick the detail and review how the reforms will deliver to this agenda.

To find out more about the White Paper and how it could affect your organisation, please visit our ICS webpage.