The amendments to the Health and Social Care Bill will be debated in Parliament today and tomorrow following the Bill’s re-committal.
The Department of Health has published responses to legal opinions recently published by 38 Degrees on certain aspects of the Bill regarding the ‘duty to provide’ and the application of procurement and competition law.
Duty to provide
Stephen Cragg’s legal opinion on the ‘duty to provide’ in the Bill was published by 38 Degrees in August 2011. The Department does not agree with some important aspects of the legal analysis of the effect of the provisions of the Bill, nor the description of what the advice means that is given on the 38 Degrees website.
- the Secretary of State’s accountability for the NHS and his powers in relation to the NHS are not reduced as extensively as suggested – the Government is not ‘washing its hands’ of the NHS
- the duty on the Secretary of State in relation to the promotion of autonomy (‘the hands off clause’) does not restrict the Secretary of State as severely as the analysis suggests
- we do not agree that the Bill would mean there would be fragmentation, an increase in the ‘postcode lottery’ and no national health service. The Bill confers various duties and powers on the Secretary of State, the Board and clinical commissioning which will ensure a national health service.
Procurement and competition law
A legal analysis of the application of procurement and competition law was published by 38 Degrees in August 2011. The Department does not agree with all the conclusions reached within that the legal analysis.
- about the future capacity and capability of commissioners to comply with procurement law and the steps being taken to address this
- the conclusions drawn from the BetterCare case about the likely applicability of domestic and European competition to NHS commissioners
- the allegations that the Bill would lead to a system geared heavily in favour of private companies; and, would do nothing to prevent so-called ‘cherry picking’
- the ability of the provision in the Bill to, for example, preclude ‘cherry-picking’.
These responses follow the note published by the Department last month in response to a number of stakeholder questions on the future role and functions of the Secretary of State for Health.