The Health and Social Care Bill and the NHS.

September 7, 2011 3:56 PM
Originally published by Jenny Willott MP

Thank you to everyone who has contact me about the Health and Social Care Bill and the NHS.

As you probably know, this legislation only applies to England. The NHS here in Cardiff will not be affected by this Bill and the Welsh Assembly Government does not have to change its own policies because of changes in England.

When the original Bill was published I had a number of concerns, in particular about the opportunity for private sector companies to 'cherry-pick' the most profitable parts of the NHS. I was also concerned that Monitor, the health regulatory body, would promote competition above the needs of patients.

Thanks to significant pressure put on ministers by Liberal Democrats and the public, these concerns have been addressed. Monitor will now promote patients' interests instead of competition and the Bill now ensures that there will be no wholesale privatisation of the NHS.

However, I understand that people still have concerns about some other aspects of the Bill and I appreciate those people who have highlighted 38 Degrees legal advice on these areas.

On the issue of the role of the Secretary of State, people are concerned that the Bill does not require the Secretary of State for Health to 'provide' a national health service. The requirement to 'provide' was introduced in the 2006 Health Act. It wasn't in the Secretary of State's remit from the time the NHS was created in 1948 until 2006. It is therefore only a very recent provision. I hope that you will be reassured, as I am, that the wording is not vital to the future of the NHS, and the character of the NHS, being publicly accountable and free at the point of delivery, will continue..

There is also a practical problem with including the word 'provide'. The Secretary of State has not for a long time actually 'provided' the NHS because he does not directly administer services. Services are commissioned by Primary Care Trusts at the moment and the Secretary of State is responsible for monitoring provision and in so doing ensure adequate coverage of NHS services. This duty - to 'secure' - is included in the current legislation, and has been the Secretary of State's remit since 1948.

I believe that 38 Degree's legal advice places too much emphasis on the wording of the 2006 Act. The new legislation keeps the requirements which have underpinned the NHS since its creation and in fact increases the duties on the Secretary of State. For example, the Bill introduces a new duty on him to ensure the NHS tackles health inequality, and puts into practice the lessons of medical research to improve standards.

On the issue of the application of EU Competition Law, as 38 Degrees' own legal advice makes clear, the courts have ruled in a number of cases that NHS bodies are not subject to competition law. 38 Degrees' advice suggests that these rulings are not definitive and might be tested further, but the Government's legal advice states that the precedent of these cases stands.

The Government have also made it clear that they do not intend competition law to apply to the new GP consortia any more widely than it does to current NHS commissioning. This is important because the courts take into account the Government's intention in drafting legislation when interpreting a law. Competition law already applies to parts of the NHS, as it was introduced much more widely by the previous Labour Government, but by placing their intentions on the record in Parliament, the Government has made clear that GP consortia are not to be regarded as an 'undertaking' for the purposes of competition law. I therefore believe there are adequate safeguards in place to ensure EU competition law does not apply any more than it does at present.

There is consensus across all parties that in order for the NHS to continue to provide high quality healthcare into the future, reform is needed. I believe that with the changes we have already achieved this legislation will ensure the NHS has a bright future.

I hope this explains my position and reassures people about some of the issues raised by 38 Degrees'.

As usual, if anyone has any more questions on this or any other issue please don't hesitate to contact me.

Yours sincerely,

Jenny Willott MP

Cardiff Central

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