The health of the nation

The return of public health to a position of prominence as part of the government's NHS reforms is welcome but the financial freeze could cause difficulties with delivery, says Nicholas Dobson.

Despite much opposition (including loud “noises off”), on 31 January 2011 the Health and Social Care Bill cleared its first Parliamentary hurdle. For after a lively debate the House of Commons gave the Bill its Second Reading and sent it to a Public Bill Committee for scrutiny. The Health and Social Care Bill Committee is now accepting written evidence.

There was certainly political polarisation in Parliament. Whilst Conservative and Liberal Democrat MPs (with the exception of Liberal Democrat Andrew George who abstained) backed the Bill at second reading by 321 to 235, Labour members were not shy in voicing their opposition. Shadow Health Secretary John Healey for instance, said that the changes will “break up the NHS” and “open up all areas of the NHS to price-cutting competition from private health companies”. Predictably though, Health Secretary Andrew Lansley saw things differently. “The purpose of the Bill,” he said, “can be expressed in one sentence – to improve the health of the people of this country and the health of the poorest fastest.”

Well, you pays the money and they takes the choice. But however the national health debate turns out, local public health is making something of a return. This is after an absence of some 37 years following its 1974 move from local authorities to a reorganised NHS. Amongst the new local authority responsibilities will be the establishment of new Health and Wellbeing Boards and (in double act with the Secretary of State) the appointment of local authority Directors of Public Health. Presumably a case of come back Medical Officers of Health, most (if not all) is forgiven. This article takes a look at some of the new local authority health functions, many of which take the form of insertions into the National Health Service Act 2006 (the NHS Act). References to clauses are to those in the Bill as introduced into Parliament on 19 January 2011.

Some of the New Local Authority Health Functions

Local Health Improvement

A new section 2B is to be inserted into the NHS Act by clause 8 of the Bill. This will require every local authority to take such steps as it considers appropriate for improving the health of the people in its area. Section 2B(4) optimistically provides that these steps may include “providing grants or loans (on such terms as the local authority considers appropriate)”. Local authorities for these purposes (per a new section 2B(5)) are English counties and non-county districts, London boroughs and the Council of the Isles of Scilly and the Common Council of the City of London. These are also the authorities for the purposes of “public health functions” of local authorities (per clause 1(3) of the Bill).

Regulations re Public Health Functions

Clause 14 inserts a new section 6C into the NHS Act which enables regulations to require a local authority to exercise its own or any of the Secretary of State’s public health functions by taking “such steps as may be required” (as old war films might have had it, ‘ve have vays of making you make your people healthy). The Secretary of State may also (per a new section 7A of the NHS Act, inserted by clause 18 of the Bill) arrange for a local authority (amongst others) to exercise any of his or her public health functions.

NHS Commissioning Board

Clause 5 inserts a new section 1D into the NHS Act creating a new corporate non-departmental public body to be known as the NHS Commissioning Board, accountable to the Secretary of State. As the Explanatory Notes indicate, this “will have broad overarching duties to promote the comprehensive health service (other than in relation to public health) and to exercise its functions with a view to securing the provision of services for the purposes of that service”. A new section 13J of the NHS Act (inserted by clause 19 of the Bill and headed “Duty to encourage integrated working”) will require the Board to “exercise its functions with a view to encouraging commissioning consortia [clause 6] to work closely with local authorities in arranging for the provision of services”.

Directors of Public Health

Local Authority Directors of Public Health step into the spotlight in clause 26 of the Bill which inserts a new section 73A into the NHS Act. As noted, these officers are to be appointed jointly by the local authority and the Secretary of State and will conduct the public health functions specified in section 73A(1). Directors must also “prepare an annual report on the health of the people in the area of the local authority” which the local authority must publish (section 73B(4) & (5). The Secretary of State is given various oversight powers concerning the performance of directors, and whilst a local authority may terminate a director’s appointment, it must firstly consult the Secretary of State.

Hello Local Healthwatch Organisations, Goodbye Local Involvement Networks

Part 5 of the Bill provides for the creation of a new national body, Healthwatch England, to be established as a statutory committee within the Care Quality Commission with functions prescribed in a new section 45A (1) to (4) of the NHS Act (see clause 166). It also provides for local Healthwatch organisations (LHOs) to be established as bodies corporate in each local authority area and (bad news in the present financial climate) funded by local authorities. These will (amongst other things) replace and continue the work of Local Involvement Networks under Part 14 of the Local Government and Public Involvement in Health Act 2007 as well as having additional functions. An LHO may do anything which appears to it to be necessary or expedient for the purpose of, or in connection with, the exercise of its functions (Para 4 of Schedule 16A inserted by Schedule 13 to the Bill). Additional LHO functions include (per clause 168(3)): the provision of advice and information about access to local care services (i.e. local NHS and local authority social services) and about potential choices concerning aspects of those services. The Secretary of State may make a transfer scheme in respect of transfer from the previous local involvement network body to the LHO of relevant property, rights and liabilities (clause 174(2)).

Independent Advocacy Services

Clause 170 inserts a new section 223A (Independent advocacy services) into the Local Government and Public Involvement in Health Act 2007. The effect of this is to transfer this duty in relation to complaints concerning the provision of health services from the Secretary of State to local authorities. Authorities will be able to commission either an LHO or other provider to deliver these services. In making these arrangements a local authority must have regard to the principle that service provision should so far as practicable be independent of any person who is either the subject of a relevant complaint or involved in investigating or adjudicating on such a complaint. In other words authorities must act consistently with the public law duty of fairness.

Health Scrutiny

Clause 175 of the Bill deals with health scrutiny functions of local authorities by amending section 244 of the NHS Act. As the Explanatory Notes indicate: “Local authorities will no longer be required to have health overview and scrutiny committees, but will continue to have oversight and scrutiny powers, which they may discharge how they see fit. For example, local authorities may choose to continue to operate their existing overview and scrutiny committees, or may choose to put in place other arrangements such as appointing committees involving members of the public.”

Joint Strategic Needs Assessments and Strategies

According to the Department of Health Joint Strategic Needs Guidance issued in 2007, such an assessment is “a process to identify the current and future health and wellbeing needs of a population in a local authority area”. Clause 176 amends section 116 of the Local Government and Public Involvement in Health Act 2007, so that a local authority and commissioning consortia having a boundary within, overlapping or coinciding with that local authority’s, have a duty to prepare a joint strategic needs assessment.

Section 177 inserts new sections 116A (Health and social care: joint health and wellbeing strategies) and section 116B (Duty to have regard to assessments and strategies) into the 2007 Act. New section 116A will require local authorities and their partner commissioning consortia to produce a joint health and well-being strategy to meet the needs identified in the joint strategic needs assessment. New section 116B will impose a duty on consortia, the local authority and the NHS Commissioning Board to have regard to the joint strategic needs assessment and joint health and wellbeing strategy when carrying out their commissioning functions. Section 116B(1) therefore will require a local authority, and each partner commissioning consortium to have regard to the most recent needs assessment and strategy when exercising relevant functions. A function is relevant for these purposes if it could be exercised in a way that meets, or affects, to a significant extent a need included in the most recent joint strategic needs assessment conducted under section 116 of the 2007 Act.

Health and Wellbeing Boards

Clause 178 requires local authorities (defined in effect as above by clause 178(14)) to establish Health and Wellbeing Boards for their areas. A Board will be a committee of the local authority and treated as if it were appointed under section 102 of the Local Government Act 1972 (clause 178(11)). The Board must consist of at least one councillor (although the executive leader may be a member instead or in addition to such councillor); the Directors of Adult Social Services, Children's Services and Public Health; a representative of the LHO, a representative of each relevant commissioning consortium and such other persons or their representatives as the local authority thinks appropriate. The Health and Wellbeing Board may also appoint such additional persons to be members of the Board as it considers appropriate.

Clauses 179 and 180 of the Bill deal with the functions of Health and Wellbeing Boards. Amongst these, a Board must, for the purpose of advancing the health and wellbeing of the people in its area, encourage persons who arrange for the provision of any health or social care services in that area to work in an integrated manner (clause 179(1)). A Board must also in particular provide such advice, assistance or other support as it thinks appropriate for the purpose of encouraging the making of arrangements under section 75 of the NHS Act (arrangements between NHS bodies and local authorities) in connection with the provision of such services (clause 179(2)). By clause 180(2) a local authority may arrange for its Health and Wellbeing Board to exercise any other functions of the authority. Clause 181 deals with the participation of the NHS Commissioning Board in the Health and Wellbeing Board and clause 182 enables joint discharge of functions by two or more Boards.

Care Trusts

As to Care Trusts, clause 184 amends Section 77 of the NHS Act to enable NHS foundation trusts or commissioning consortia and local authorities to form Care Trusts, if they decide locally that this is the best way to meet the needs of their local populations. The clause also makes amendments abolishing the direct role of the Secretary of State in the process of forming or disbanding a Care Trust.

Comment

Whilst the return of health functions to local government after a long absence is clearly welcome, two handholding spectres haunt the feast. One is financial famine and the other is consequently diminishing staffing resources. For whilst many authorities are shedding more expensive senior staff to help cut costs, the downside is that many such staff carry away with them substantial assets of knowledge, instinct and experience. And these are invaluable foundations for effective change. For there will be much new organisational infrastructure to assemble and wire up into sound corporate governance arrangements. And this will place obvious strain where there is a lower spec officer corps.

But on the plus side the return of public health responsibilities will clearly help with more holistic and effective local governance. For health and wellbeing issues affect us all and integrating these with strategic local government functions should help align the expectations of local people with what their councils are able to deliver. For it tends to be the local authority that is the ‘They’ in the “They should be doing something about this”. It’s just a shame that these health functions will be returning as local government copes with the throes of a financial ice-age.

© Nicholas Dobson

Dr. Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law. He is also Communications Officer for the Association of Council Secretaries and Solicitors.