Get in on the Act Health and Social Care Act Health, adult social care and ageing

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1 Get in on the Act Health and Social Care Act 2012 Health, adult social care and ageing

2 Contents 1. Summary of the Act 2. Overview the key provisions explained 3. Implications for local government major areas Public health and health improvement 21 Directors of public health 24 HWBs 25 Health scrutiny 26 Healthwatch 27 The regulatory regime What s not in the Act: aspects of the current health reforms that do not appear in legislation Transfer of public health staff Public health funding The public health outcomes framework The role of Public Health England and its relations with local government The development of the NHSCB and its geographical structures Integration of health, social care and other local government services The Children and Young People s Health Outcomes Strategy The role of Commissioning Support Services 5. The role of the LGA and local government in influencing the legislation 6. Abbreviations and glossary of useful terms relating to health and social care reforms and legislation This document was written by Dr Fiona Campbell, Director, Policy and Practice.

3 1. Summary of the Act Background The Health and Social Care Bill was introduced into the House of Commons on 19 January 2011, following the publication of the white paper Equity and excellence: Liberating the NHS in July The Bill was the largest piece of health legislation since the creation of the NHS. It was subject to 50 days of debate in Committee and on the floor of both Houses. Over 2,000 amendments were agreed. The LGA played an active role in responding to government consultations on the proposed provisions of the Act, which received Royal Assent in March 2012, and was heavily involved in making representations to Members of the Houses of Commons and Lords during the passage of the legislation. The LGA was successful in securing a number of amendments to the legislation on issues of particular concern to local government. This publication aims to provide readers with an introduction to the Act and to summarise the main issues and principles enshrined in the supporting regulations and guidance, including the implications for local government. At the time of writing (mid May 2012), regulations, guidance and commencement dates for the provisions in the Act are still awaited. The provisions summarised and discussed below apply to England only, unless otherwise stated. Summary The Act is in 12 parts: Part 1 sets out a framework which confers NHS functions directly on the organisations responsible for exercising those functions, while retaining a general duty on the SoS for Health (SoS) to promote a comprehensive health service. It also gives local government a new set of duties to protect and improve public health. Part 1 also establishes a new non-departmental public body, the NHS Commissioning Board (NHSCB), makes provision for the establishment of Clinical Commissioning Groups (CCGs), contains measures relating to the abolition of Strategic Health Authorities (SHAs) and Primary Care Trusts (PCTs), and amends the Mental Health Act 1983 and provisions relating to emergency preparedness and pharmaceutical services expenditure. Part 2 contains provisions relating to the public health service, including the abolition of the Health Protection Agency (HPA), functions in relation to biological substances and radiation protection, the repeal of the AIDS (Control) Act 1987, and co-operation with bodies exercising functions in relation to public health. Get in on the Act Health and Social Care Act

4 Part 3 sets out provisions for regulation of health and adult care services in England and defines the role of Monitor, the sector regulator. Part 4 amends Chapter 5 of Part 2 of the NHS Act 2006, which makes provision for NHS foundation trusts, removing various restrictions on foundation trusts and their authorisation, removing NHS trusts as a provider model (ie preventing foundation trusts from being returned to NHS trust status) and setting out Monitor s role in relation to arrangements in respect of failing trusts. It also sets out new arrangements for the governance, financing and accounting of foundation trusts. Part 5 provides for the creation of a new national body, Healthwatch England (HWE), to be established as a statutory committee within the Care Quality Commission (CQC). It also makes provision about Local Healthwatch (LH) organisations in each local authority area. Part 5 also deals with the health scrutiny functions of local authorities and makes provision for the establishment of health and wellbeing boards (HWBs) in each upper tier local authority area, setting out their role. It also provides for foundation trusts and CCGs to be designated as Care Trusts and removes certain restrictions on those to whom the Health Service Ombudsman can report. Part 6 amends the NHS Act in relation to medical, dental, ophthalmic and pharmaceutical services following the creation of the NHSCB, CCGs and the public health service. Part 7 makes changes to the regulation of health and social care workers, abolishing the General Social Care Council (GSCC) and transferring some of its functions to the Health Professions Council (HPC). It also abolishes the Office of the Health Professions Adjudicator (OHPA). Part 8 re-establishes the National Institute for Health and Care Excellence (NICE) as a non-departmental public body and sets out aspects of its role. Part 9 relates to the publication of information standards and the collection of information from providers of health and social care services. Part 10 abolishes the Alcohol Education and Research Council, the Appointments Commission, the National Information Governance Board for Health and Social Care, the National Patient Safety Agency and the NHS Institute for Innovation and Improvement. Part 11 contains miscellaneous provisions, including duties for bodies to co-operate, arrangements with devolved authorities, supervised community treatment and transfer schemes. Part 12 covers technical matters, including regulatory powers and commencement matters. Resources Health and Social Care Act 2012: 4 Get in on the Act Health and Social Care Act 2012

5 2. Overview the key provisions explained Summary In providing for new structures and means of commissioning and providing health services, the Act makes changes to a number of existing Acts, most notably the National Health Service Act 2006 (the NHS Act) and the Local Government and Public Involvement in Health Act Much of the wording of the Act is couched in terms of amendments to previous legislation. The summary and explanation below are largely based on the explanatory notes to the Act provided by the Department of Health and published at In the explanations below, all those sections which explicitly refer to local authorities or their staff or services are marked with a pink asterisk. Part 1 The health service in England Section 1*: amends section 1 of the NHS Act, which contains the Secretary of State s (SoS) duty to promote a comprehensive health service designed to secure improvement in the physical and mental health of the people of England, and in the prevention, diagnosis and treatment of mental and physical illness. Subsection (1) retains the duty on the SoS to promote a comprehensive health service. This is the core duty, dating back to the founding NHS Act of 1946, which makes the SoS accountable for the health service. The Act inserts the words physical and mental in front of illness when outlining the SoS s duty which thereby addresses mental as well as physical illness. The functions of commissioning services and the provision of services will no longer be delegated by the SoS, but will be directly conferred on the organisations responsible for performing them. The SoS s role is to ensure that these functions are being carried out effectively; he or she retains ultimate responsibility for securing the provision of services through the exercise of his or her functions, such as his or her powers to set objectives for the NHSCB (through the mandate to the NHSCB), to oversee the effective operation of the health service and to intervene in the event of significant failure. The SoS and local authorities will have powers both to commission and to provide public health services. Get in on the Act Health and Social Care Act

6 The Act maintains the principle that health services must be free of charge unless charges are specifically provided for in legislation. This includes all services commissioned by the NHSCB, CCGs, and, in relation to public health, local authorities. Section 2 creates a duty on the SoS to act with a view to securing continuous improvement in the quality of individuals healthcare. In discharging this duty, he or she must have regard to the NICE quality standards and must focus on outcomes, particularly on effectiveness, safety and patient experience. This duty is also placed on the NHSCB and CCGs. Section 3 places a duty on the SoS to have regard to the NHS Constitution when exercising his or her functions. Section 4 introduces a new duty on the SoS to have regard to the need to reduce health inequalities in relation to access and outcomes. Later sections of the Act place equivalent duties on the NHSCB and CCGs, both of which are also required to produce commissioning plans setting out proposals to reduce health inequalities. All those with this duty must assess their effectiveness in annual reports and the NHSCB must annually assess the performance of CCGs in relation to reducing health inequalities. Section 5 requires the SoS and the NHSCB to promote autonomy in the health service. This is intended to enshrine the principle outlined in Equity and Excellence: Liberating the NHS of maximising the autonomy of individual commissioners and providers and minimising the obligations placed upon them, in a way that is consistent with the effective operation of a comprehensive health service. Section 6 places a duty on the SoS to promote research (similar duties are placed on the NHSCB and CCGs in later sections). Section 7 places a duty on the SoS and a duty to co-operate on commissioners and providers to ensure an effective system for education and training for health and allied professionals. Section 8 imposes a duty on the SoS to report on and review the treatment of providers of NHS services. Section 9 establishes the NHSCB as a nondepartmental public body to hold CCGs to account and to promote a comprehensive health service, with the exception of public health functions. NHSCB s commissioning functions are conferred by provisions elsewhere in the Act. Section 10 establishes CCGs. Section 11 places a duty on the SoS to protect health and to consult the Health and Safety Executive as appropriate. Section 12* concerns the duties and powers of the SoS and of local authorities in relation to the improvement of public health. It gives upper tier and unitary local authorities a duty to take appropriate steps to improve the health of the people in their areas. Some of the steps local authorities might take are listed, including providing information and advice, providing facilities for the prevention or treatment of illness, providing financial incentives to encourage individuals to adopt healthier lifestyles and providing assistance to help individuals minimise risks to health arising from their accommodation or environment. Local authority actions could also include making grants and lending money to organisations or individuals. 6 Get in on the Act Health and Social Care Act 2012

7 Section 13 confers a duty on CCGs to commission health services (except those commissioned by the NHSCB) for all those for whom they have responsibility ie those who are provided with primary medical care by the CCG and those who are resident in the area. Section 14 confers powers on CCGs to commission physical and mental health services of prevention, diagnosis and treatment of the people for whom they have responsibility. Section 15 gives the SoS a regulationmaking power to require the NHSCB to commission certain services, including primary medical, dental, ophthalmic and pharmaceutical services, health services for the armed services and for people in prison and some specialised services which are currently commissioned by Strategic Health Authorities (because of issues such as low volume or high cost). Section 16 removes the duty from the SoS to provide high security psychiatric services and transfers it to the NHSCB. Section 18* gives the SoS powers to make regulations requiring local authorities to carry out public health functions and makes the local authority liable for acts or omissions of the authority when exercising such functions. Section 19 gives the SoS powers to direct the NHSCB and CCGs in respect of EU obligations connected to the health service. Section 20 gives the SoS powers to regulate the NHSCB and CCGs in relation to how they carry out their functions, including the drafting of commissioning contracts. Section 21 relates to the powers of the SoS to direct Special Health Authorities to exercise certain functions. Section 22: gives the SoS powers to delegate by arrangement public health functions and any liabilities incurred to the NHSCB, CCGs or local government. The section also allows for the SoS to provide funding to the NHSCB and CCGs (but does not refer to funding for local government) in related to the delegated function. Section 17*: transfers responsibility for certain public health activities to local authorities, including medical inspection, treatment, weighing and measuring of school children, and the transfer of the school nursing service. It also confers a duty on the SoS to arrange for screening and supply of blood and human tissues. It also transfers the wheelchair service to CCGs. This section also provides for the NHSCB, CCGs and local authorities the latter with respect only to public health to conduct, commission or fund health-related research. Get in on the Act Health and Social Care Act

8 Section 23 requires the SoS to publish and lay before Parliament an annual Mandate or set of objectives to the NHSCB. It also introduces duties on the NHSCB in relation to: effectiveness and efficiency; quality of services; promoting autonomy; reducing inequalities; promoting patient involvement and choice; promoting innovation; research; education and training; having regard to the impact of services in relation to borders with Scotland and Wales; patient safety; and information. It prohibits the NHSCB from pursuing policies designed to increase or decrease the market share of any particular type of healthcare provider (for example private sector or third sector providers). Section 24 sets out how the SoS will fund the NHSCB and its general financial duties. Section 25 gives details of the duties of the NHSCB in relation to CCGs, including its duties in relation to authorising, merging or dissolving CCGs and for the publication of constitutions, governance arrangements and accountability. Section 26* sets out the general duties and powers of CCGs, which reflect those of the NHSCB set out in section 23. These include duties to address health inequalities and to promote integration. It also makes provisions with regard to CCGs commissioning plans, including public consultation and consultation with HWBs which must be consulted on whether CCGS have adequately taken account of the latest joint health and wellbeing strategy. It provides for HWBs to report to the NHSCB their views on the latter. Section 27 sets out the financial arrangements for CCGs, including their duty to break even on their commissioning budget and the power of the NHSCB to reward quality of performance of CCGs. Section 28 requires all GP practices to be members of CCGs. Section 29* enables the transfer to local authorities of PCTs existing functions around dental public health, and extends to local authorities a duty to help secure and maintain (NHS Act 2006) the health of the prison population. An amendment to the earlier legislation also enables the SoS to make regulations enabling a local authority and the prison service to delegate their prison health functions to each other. Section 30*: requires local authorities and the SoS, acting jointly, to appoint directors of public health (DsPH). The section also defines the responsibilities of DsPH as including: a) the new health improvement duties that this Act places on local authorities b) the exercise of any public health functions of the SoS which he or she requires the local authority to exercise by regulations under section 6C of the NHS Act 2006 (this relates to functions outside England) c) any public health activity undertaken by the local authority under arrangements with the SoS d) local authority functions in relation to planning for, and responding to, emergencies that present a risk to public health 8 Get in on the Act Health and Social Care Act 2012

9 e) the local authority role in co-operating with police, probation and prison services in relation to assessing risks of violent or sexual offenders f) other public health functions that the SoS may specify in regulations (eg functions in relation to making representations about the grant of a licence to use premises for the supply of alcohol). The section stipulates that DsPH will be local authority employees who may be dismissed by local authorities after consultation with the SoS. Where the SoS considers a DPH has failed or might have failed to carry out certain aspects of his or her health responsibilities then the SoS may require the local authority to take certain actions. Section 31* requires local authorities to have regard to documents that the SoS publishes when exercising their public health functions, for example, the public health outcomes framework. The section also permits the SoS to issue guidance to local authorities about the staff they employ to exercise their public health functions. The section also requires DsPH to produce, and local authorities to publish, annual reports. Section 32* gives the SoS powers to set up complaints procedures and mechanisms for dealing with them. Section 33 abolishes SHAs. It is intended that they should be abolished on 1 April Section 34* abolishes PCTs (intended to take place on 1st April 2013) and transfers their responsibilities for local health improvement to local authorities. Sections 35-37* amends Part 3 of the Water Industry Act 1991 (fluoridation), as amended by the Water Act 2003 to provide for the SoS to make arrangements with a water undertaker to fluoridate a water supply, only following a proposal from, and consultation and decision by, the relevant upper tier or unitary local authority. There are also provisions for cross-border co-operation between England and Wales on fluoridation and on monitoring the effect of fluoridation schemes on the health of the population. Previous legislation is amended to enable a local authority or group of local authorities to make a fluoridation proposal to the SoS. Procedures are set out in relation to consultation and decision making and the variation and termination of fluoridation schemes. Transition arrangements are set out for existing fluoridation schemes and provision is made that payments by local authorities towards fluoridation costs are to be determined by agreement between the affected local authorities. Sections make a number of changes to the Mental Health Act 1983 in light of the abolition of SHAs and PCTs and other proposals in Equity and Excellence: Liberating the NHS. The changes relate to: the approval of specialist clinicians who may exercise such approvals; the discharge and after-care of patients with mental health problems who are subject to compulsory measures; the provision of pocket money for in-patients; transfers to and from special hospitals; and other related matters. Section 43* transfers from the SoS to local authorities the duty to arrange independent mental health advocate (IMHA) services. Get in on the Act Health and Social Care Act

10 Sections 46 and 47 amend the NHS Act to make provision in relation to emergencies affecting the health services, setting out the powers of the SoS and the role of the NHSCB and of CCGs and requiring all relevant service providers to appoint an accountable emergency officer. Section 48 relates to the establishment of time-limited special health authorities for specific purposes. Section 49 permits the SoS and the NHSCB to give directions as to the exercise of primary care services. Section 50* permits the SoS to make regulations specifying the health improvement and health protection measures for which local authorities could charge. The SoS is currently permitted to charge for health protection measures for populations, but not to charge for health protection services or facilities to individuals such as vaccination or screening. Section 51 provides for remuneration for pharmaceutical services. Schedule 3, introduced in this section, gives further details. Section 52 gives the SoS a duty to review health service functions and to intervene in the case of failure. This makes clear that the SoS is ultimately accountable for ensuring that the national level arm s length bodies, such as the NHSCB, Monitor and the CQC, including the HWE Committee of CQC, are performing their functions effectively. Section 53* requires the SoS to make an annual report to Parliament covering those aspects of the health service commissioned by the NHSCB and CCGs and the public health services for which the SoS and local authorities are responsible. Section 54*: makes amendments to the Coroners and Justice Act 2009, placing responsibility for the appointment of medical examiners and related activities on local authorities (in England) instead of on PCTs. Section 55*: introduces to Schedules 4, 5 and 6, which relate to amendments to previous legislation to bring it into line with the provisions outlined here. Issues specifically relating to local authorities include: permitting the NHSCB, CCGs and local authorities rather than the SoS to make monetary payments ie direct payments or personal health budgets to patients in lieu of providing them with health care services (Part 1 of Schedule 4) enabling the NHSCB and CCGs powers to supply goods and services to local authorities and to make certain services available to local authorities to enable them to discharge their functions relating to social services, education and public health (Part 3 of Schedule 4) enabling regulations to provide for the making and recovery of charges by the NHSNCB, CCGs and local authorities in respect of certain services and supplies (Part 8 of Schedule 4) 10 Get in on the Act Health and Social Care Act 2012

11 *conferring additional powers for the SoS to specify minimum sums that the NHSCB must pay to local authorities towards expenditure on local authority social care or other community services. This would not affect the powers of the NHSCB to make payments to local authorities under these powers in addition to those sums (Part 12 of Schedule 4) *amending the Local Government and Housing Act 1989 to add the director of public health to the list of statutory chief officers of local authorities (Part 1 of Schedule 5) *amending the Licensing Act 2003 to enable local authorities to make representations in relation to licence applications and early morning alcohol restriction orders affecting their area (Part 1 of Schedule 5) *amending the Mental Capacity Act 2005 to make local authorities, instead of the SoS, responsible for making arrangements to enable independent mental capacity advocates to represent and support specified persons (Part 1 of Schedule 5). Part 2 Further provision about public health Section 56 abolishes the Health Protection Agency (HPA) and repeals the Health Protection Agency Act The section introduces Schedule 7, which makes a number of amendments to other Acts consequent on the HPA s abolition. Section 57 confers on the SoS new UK-wide functions previously carried out by the HPA in relation to biological substances such as controlling vaccines or blood products. Section 58 confers on the SoS functions previously carried out by the HPA in relation to protecting the public from radiation. Section 59 repeals the AIDS (Control) Act 1987 which concerns the collection of information about numbers of HIV cases and deaths. The Department of Health regards the Act as redundant as laboratories and clinics now voluntarily report more accurate and relevant data than the Act calls for. Section 60* amends the NHS Act 2006 to introduce a duty of co-operation between the SoS and all individuals and organisations who carry out health protection functions similar to those of the SoS. Get in on the Act Health and Social Care Act

12 Part 3 Regulation of health and adult social care services Sections (Chapter 1 of Part 3) cover the duties of Monitor which will become the regulator for health care services. Monitor s overarching duty will be to protect and promote the interests of people who use those services, by promoting provision of health care services which is economic, efficient and effective and which maintains or improves the quality of services. It must enable integration where this would improve quality and reduce inequalities in access to health services or in health outcomes. Monitor has a duty to address anticompetitive or potentially anti-competitive behaviour in the provision of healthcare services, set or regulate prices and support commissioners in ensuring the continuity of services. To enable it to deliver these functions, Monitor will have the power to license providers of NHS-funded care. Section 65* allows for Monitor s functions to be extended so that they are exercisable in relation to the provision of adult social care services. Schedule 8 provides for the structure and governance of Monitor, which will remain as a non-departmental public body. Sections (Chapter 2 of Part 3) provide Monitor with powers to carry out its duty to prevent anti-competitive behaviour by providers that would harm patients interests. These sections also give Monitor concurrent powers with the Office of Fair Trading. The sections also make provision about mergers involving NHS foundation trusts and co-operation between Monitor and the Office of Fair Trading. Sections * (Chapter 3 of Part 3) establish a licensing regime for providers of health care services for the purposes of the NHS and provide Monitor with the necessary powers to run the regime. The regime gives Monitor the means to perform its main duty and carry out its functions; for example, it will provide a means for Monitor to collect information needed to set prices. Schedule 11 introduced by section 107 gives further details about Monitor s enforcement powers. Sections (Chapter 4 of Part 3), including Schedule 12 set out the framework for Monitor to set prices for NHS healthcare services, including the national tariff, which would apply to specific services. Details are given of how and whom Monitor should consult in setting prices and how providers and CCGs may refer to the Competition Commission the methodology used for specific prices. Sections (Chapter 5 of Part 3) provide for a health special administration regime, based on insolvency legislation, for the purposes of securing the continued provision of NHS services provided by a company licensed by Monitor that becomes insolvent (Part 4 makes separate provision for trust special administration for unsustainable foundation trusts). Sections (Chapter 6 of Part 3) require Monitor to set up effective mechanisms for providing financial assistance to providers in health special administration. The intention is that providers and commissioners of services will fund this financial assistance through financial contributions, or other financial mechanisms, determined by Monitor, for example, on the basis of risk. 12 Get in on the Act Health and Social Care Act 2012

13 Sections (Chapter 7 of Part 3), including schedule 13 make a number of miscellaneous provisions relating largely to communication and amendment of previous legislation. These provisions include the requirement on the SoS not to seek to increase or decrease the proportion of NHS healthcare services that are delivered by a particular description of providers (eg the public, private or voluntary sector). Part 4 NHS foundation trusts and NHS trusts Sections deal with governance and accounting arrangements for NHS foundation trusts. They make changes to the powers of foundation trust governors giving them a right to training and development and an additional power to hold directors of the trust to account. They also require foundation trusts to ensure that their membership is representative of those eligible to be members. Foundation trusts are required to hold an annual meeting open to the public. Sections deal with the process of authorising foundation trust status, their constitutions and a new power for Monitor to set up a panel to advise governors. Section 163 amends powers relating to the financial transactions of foundation trusts, external financing, transparency and powers relating to property and fees. Sections 164*-167 deal with foundation trusts ability to raise non-nhs income (for example, from private patients), providing that the majority of their income is derived from NHS services, including publiclyfunded health services commissioned by local authorities. They also deal with financial information and decision-making requirements. Sections restrict the role of Monitor and increase the role of governors in relation to mergers of foundation trusts; make provision for foundation trusts to acquire each other and to acquire NHS trusts; make provision for foundation trusts to split into two or more separate trusts; and for trusts to dissolve. Sections develop a failure regime for foundation trusts. This includes a new role for Monitor in appointing and overseeing the work of a trust special administrator for failing trusts, to secure continuity of NHS services in line with the requirements determined by commissioners. The special administrator must also consider whether ceasing to provide a particular service would either have a significant adverse impact on health service users or on health inequalities, or would cause a failure to prevent or ameliorate a significant adverse impact on the health of such persons, or on health inequalities. There is also a role for the CQC in assessing the safety and quality of existing services. Sections repeal the legal framework establishing NHS trusts in England. This is because all NHS trusts are required to become foundation trusts as soon as is clinically feasible. Get in on the Act Health and Social Care Act

14 Part 5 Public involvement and local government Public involvement Section 181* establishes Healthwatch England (HWE) as a statutory committee of the CQC, representing the views of users of health and social care services, other members of the public and Local Healthwatch (LH)organisations. HWE is empowered to provide LH organisations with advice and assistance on patient and public involvement and to make recommendations to local authorities on this subject. HWE may also give written notice to a local authority where HWE is of the view that patient and public involvement activities (ie those activities mentioned in section 221(2) of the Local Government and Public Involvement in Health Act 2007) are not being properly carried on in its area. Meetings of HWE must be held in public. Section 182* imposes a duty on upper tier and unitary local authorities to make contractual arrangements with a LH organisation for the involvement of local people in the commissioning, provision and scrutiny of health and social services. These arrangements should include reporting arrangements to HWE. Section 183*: makes provision for contractual arrangements between local authorities and LH, which must be a social enterprise. It also enables local authorities to authorise LH organisations to contract with other organisations or individuals (LH contractors) to assist them to carry out their activities. Local authorities are given a number of duties in relation to monitoring and reporting on the work of LH. Section 184* permits the SoS to make regulations about the contracts between local authorities and LH organisations and LH contractors. Section 185* transfers from the SoS to local authorities the duty to make arrangements for the provision of independent advocacy services for complaints relating to health services. Local authorities may contract with LH for the provision of independent advocacy services, but need not do so. The SoS may make directions to local authorities about such services. Section 186* enables the SoS to make regulations to require commissioners and providers of health or social care to respond to requests for information or reports or recommendations of LH organisations and to allow members of LH entry to premises. Section 187* requires LH organisations to produce an annual report on their activities and finance and have regard to guidance from the SoS in preparing such reports. Copies of such annual reports must be sent to the NHSCB, relevant CCGs and HWE among others specified in previous legislation. 14 Get in on the Act Health and Social Care Act 2012

15 Section 188* permits the SoS to transfer property, rights, liabilities and staff from Local Involvement Networks (LINks) to LH, to assist local authorities to transfer arrangements from LINks to LH, a scheme may require a local authority to pay compensation to a transferring organisation or LINk. Section 189 amends previous legislation consequent on the provisions relating to LH. Local government Health scrutiny Sections *: amend previous legislation so that regulations may provide for local authorities, as a whole, rather than health overview and scrutiny committees, to carry out health scrutiny functions. Further amendments permit regulations for requirements to consult the local authority, to attend before it and to provide information to it to apply to relevant NHS bodies or relevant health service providers. This will potentially include CCGs, the NHSCB and providers of health services including independent sector providers. Regulations will continue to enable local authorities to make joint or other scrutiny arrangements. Joint strategic needs assessments and joint health and wellbeing strategies Section 192* amends previous legislation so that a local authority, and CCGs that have a boundary within or overlapping or coinciding with that local authority, have a duty to prepare a joint strategic needs assessment (JSNA). The amendments widen the scope of relevant need so that it covers both the current and future needs of the local population. CCGs and local authorities must involve the LH, relevant district councils and the people who live or work in the local authority s area when preparing their JSNA. Section 193* imposes a duty on local authorities and CCGs to produce, and on local authorities to publish, a joint health and wellbeing strategy for meeting the needs identified in the JSNA. CCGs, the local authority and the NHSCB must have regard to the JSNA and joint health and wellbeing strategy when carrying out their functions. A further duty requires the local authority and its partner CCGs to consider how the needs in the JSNA could more effectively be met through the use of flexibilities available under section 75 of the NHS Act 2006, such as pooled budgets, when preparing the joint health and wellbeing strategy. The local authority and partner CCGs may also include in the strategy their views on how arrangements for the provision of health-related services could be more closely integrated with arrangements for the provision of health services and social care services in the area. Get in on the Act Health and Social Care Act

16 CCGs and local authorities must involve LH and the people who live or work in the local authority s area when preparing the joint health and wellbeing strategy. This is similar to the duty in relation to the JSNA (except that district councils are not mentioned in relation to the joint health and wellbeing strategy). Local authorities and CCGs must also have regard to SoS guidance and to his or her mandate to the NHSCB when preparing the joint health and wellbeing strategy. Previous legislation imposes similar duties in relation to JSNAs. Health and wellbeing boards Section 194* requires each upper tier local authority to establish a health and wellbeing board (HWB) for the area, as a committee of the local authority under section 102 of the Local Government Act The section also permits regulations to be made to disapply or modify the provisions of the latter in relation to HWBs. Membership of HWBs must include: the director of children s services the director of adult social services the director of public health representatives of LH and each relevant CCG (a CCG may, with the consent of the HWB be represented by the representative of another CCG which has a boundary within or coinciding with the local authority area) additional members may also be appointed by the HWB and by the local authority following consultation with the HWB. CCGs must co-operate with the HWB in the exercise of the board s functions. Health and wellbeing boards: functions Section 195* imposes a duty on HWBs to encourage integrated working between commissioners of NHS, public health and social care services for the advancement of the health and wellbeing of the local population. A HWB must provide advice, assistance or other support in order to encourage partnership arrangements under section 75 of the NHS Act The section also enables the HWB to encourage those who arrange for the provision of services related to wider determinants of health, such as housing, to work closely with the HWB; and to encourage such persons to work closely with commissioners of health and social care services. at least one elected representative, which may be the elected mayor or leader of the local authority and/or a councillor or councillors nominated by them 16 Get in on the Act Health and Social Care Act 2012

17 Section 196* requires the functions of CCGs and local authorities of preparing JSNAs and joint health and wellbeing strategies to be discharged by a HWB. It enables the local authority to delegate any of its functions except its scrutiny function to the HWB. This could extend to functions relating to the wider determinants of health. A HWB may inform the local authority of its views on whether the authority is discharging its duty to have regard to the JSNA and joint health and wellbeing strategy in discharging functions. Sections * cover the participation of the NHSCB in HWBs, joint activity between HWBs and information for HWBs. The NHSCB will be required to appoint a representative to participate in the preparation of the JSNA and joint health and wellbeing strategy. It will also be required, upon request of the HWB, to appoint a representative for the purpose of considering a matter in relation to its local commissioning responsibilities, for example primary medical services commissioning. This could also involve taking part in discussions to improve joint working. There is provision for HWBs to work across local authority boundaries by discharging their functions jointly, with advice, if they choose, from a joint sub-committee. HWBs may request information from the local authority and any person who is represented on or is a member of the board. Care Trusts Section 200* enables NHS foundation trusts or CCGs to form Care Trusts with local authorities, integrating health and social care activity. The decision to form or remove the designation of a Care Trust would be for local bodies and they would make the designation themselves. Section 201 enables the Health Service Commissioner for England (the Health Service Ombudsman) to share complaints investigation reports with appropriate persons. Part 6 Primary care services Section relate to provisions for who may provide General Medical Services and General Dental Services. Section 206* transfers responsibility for developing, updating and publishing local pharmaceutical needs assessments from PCTs to HWBs in local authorities. Sections deal with the administration and operation of the list of those permitted to provide pharmaceutical services. Get in on the Act Health and Social Care Act

18 Part 7 Regulation of health and social care workers Sections * cover technical matters relating to the training and regulation of social care and mental health workers. Provisions and issues covered include: enabling primary legislation to be amended to regulate social workers and social care workers training and standards of professional conduct of approved mental health professionals. abolition of the General Social Care Council (GSCC) and transferring its role, from the date of Royal Assent of this Act, in regulating social workers to the newlynamed Health and Care Professions Council (formerly the Health Professions Council) with which social workers must now be registered, rather than with the abolished GSCC. dealing with the manner in which appeals in cases involving social workers are to be heard. empowering the Health and Care Professions Council to approve training courses for approved mental health professionals and the process for such approvals. changes to the Council for Healthcare Regulatory Excellence which will become the Professional Standards Authority for Health and Social Care (PSAHSC). Section 231 abolishes the Office of the Health Professions Adjudicator. Part 8 The National Institute for Health and Care Excellence Sections * establish the National Institute for Health and Care Excellence (NICE) as a body corporate (it was previously a Special Health Authority) and give effect to Schedule 16 which deals with the constitution of NICE, including its membership, accounting and general duties. Sections * set out the role of NICE in developing quality standards for NHS, public health and social care; supplying such standards to the devolved administrations; training and advice and the force of such advice; the parameters within which the SoS and the NHSCB may give directions to NICE; and arrangements for appeals against NICE recommendations. Section 237* states that the requirement on specified public bodies to make funding available within three months for treatments recommended by NICE s technology appraisal guidance applies to local authorities only in relation to their public health functions. Section 241 provides for the NHSCB to direct NICE to prepare commissioning guidance to CCGs. Other technical amendments in these sections follow on from the changes described in previous sections and relate to the powers, funding, accountability and governance of the PSAHSC. 18 Get in on the Act Health and Social Care Act 2012

19 Part 9 Health and adult social care services: information Sections * enable the SoS and the NHSCB to set information standards for health services or adult social care. They also establish the Health and Social Care Information Centre and set out its powers, duties, details of its constitution (Schedule 18) and the conditions under which it is required to collect and disseminate information. Part 10 Abolition of certain public bodies etc Section 278 abolishes the Alcohol Education and Research Council. Section 279 abolishes the Appointments Commission. Section 280* abolishes the National Information Governance Board for Health and Social Care and confers its functions on the CQC. Section 281 abolishes the National Patient Safety Agency (NPSA). Provision is made in Part 1 of the Act for the NHSCB to have responsibility for the functions currently carried out by the NPSA in respect of reporting and learning from patient safety incidents. Section 282 abolishes the NHS Institute for Innovation and Improvement, part of whose functions are transferred in Part 1 of this Act to the NHSCB. Section 283 repeals legislation permitting the establishment of standing advisory bodies. Part 11 Miscellaneous Section 284* provides for a new regulationmaking power, which allows the SoS to specify in regulations that local authorities must notify births and deaths to the NHSCB, CCGs and other local authorities. Section 285* extends the list of persons who can receive information from the Registrar General of births and deaths. The list will now include local authorities, among others. Section 286 makes similar arrangements for Wales. Section 287* extends the list of persons to whom the Statistics Board may give information on births and deaths, to include local authorities, among others. Sections contain provisions to require Monitor and the CQC to co-operate with each other and with other relevant bodies. Sections deal with relations between the SoS and the CQC in respect of: remunerations to CQC staff; requiring the CQC to seek approval of the SoS before carrying out special reviews or investigations, except where there is a risk to health, safety or welfare of service users; and permitting the SoS to intervene where he or she believes the CQC is failing significantly (although the SoS is not permitted to intervene in individual cases). Sections (including Schedule 21) deal with arrangements between the NHS, the NHSCB and Northern Ireland, Scotland, Wales, the Isle of Man and the Channel Islands. Get in on the Act Health and Social Care Act

20 Section 299* amends the Mental Health Act 1983 in relation to treatment of patients on supervised community treatment. It changes the circumstances in which their treatment has to be approved by a second opinion appointed doctor (SOAD), appointed by the CQC. The effect of the changes is that approval by a SOAD will not generally be necessary if the patient is consenting to the treatment in question. Sections * deal with transfers of staff, property, rights and liabilities between certain bodies such as PCTs and others such as CCGs and local authorities. Bodies from and to which staff can be transferred are listed and arrangements are set out for the establishment of holding companies, for example to hold PCT property before it is transferred to local authorities. Part 12 Final provisions Sections deal with mechanisms for changing legislation consequent on the changes in this Act; provision for regulations, orders and directions and for commencement of the different provisions of the Act. Resources Final version of the Health and Social Care Act 2012, as enacted: Equity and excellence: Liberating the NHS, July 2010, white paper setting out the Government s vision for the health reforms: 20 Get in on the Act Health and Social Care Act 2012

21 3. Implications for local government Summary This section draws together aspects of the legislation that relate to the major changes for local government; and gives further details, where they are known, of how the legislation will be developed through regulation, guidance and policy. For ease of understanding, the cumulative effect of the different provisions in the Act, the headings below do not follow the structure of the Act, although they do refer to the relevant sections of the Act. Public health and health improvement The transfer of responsibility for public health from the NHS to local government is accompanied by new powers for local authorities both to commission and to provide public health services (Section 1). Public health and health improvement will, therefore, be one of local government s major functions. It will require: a new body of expert staff and a workforce strategy to supplement, in the future, the public health specialists currently being transferred from PCTs; integration with existing environmental health activities; a holistic approach to health across the full range of local government functions; new national and local partnerships; a different relationship with the Department of Health (DH), a new relationship with NHSCB and the new national public health service, Public Health England (PHE); and a leadership role for elected Members in public health and reducing health inequalities. Upper tier and unitary local authorities are given a duty to improve the health of the people who live in their areas (Section 12). The steps that local authorities may take are, broadly, the current responsibilities of Directors of Public Health (DsPH) and their teams. Government policy documents, the public health profession and local government have all emphasised, however, that the transfer is an opportunity to transform public health, addressing the wider social determinants of health through the full range of local government functions and partnerships. An important aspect of improving health will be to pursue closer working and integration of health and social care, so that people s needs are recognised and responded to in a holistic way. All of this means that the system as a whole needs to change along with this powerful new role and that it should not just be business as usual in local government. Get in on the Act Health and Social Care Act

22 Health improvement and public health functions transferred under the Act PCTs public health duties to improve the health of their local population will transfer to local authorities on their abolition (Section 34). In exercising their public health functions, local authorities must have regard to SoS policy documents such as the public health outcomes framework. The SoS may also issue guidance about the employment of local authority public health staff (Section 31). Mandatory functions The Act directly (ie on commencement, rather than through regulation) transfers certain specific public health activities to local authorities (Section 17) relating to the schools medical programme (eg duties to weigh and measure schoolchildren). It also transfers the whole of the school nursing service, ie those nurses working in a public health role with school-aged children and their families. Note that, at present, these duties do not include children from 0-5 years. The NHSCB will be responsible for public health in relation to 0-5 year olds until 2015 when the SoS has indicated that responsibility for this group will transfer to local authorities. Section 29 creates a duty on local authorities to support public health in prisons. It creates the possibility for local authorities and the prison service to delegate public health functions to each other this inter-delegation would still require regulation to come into effect, as would the transfer to local authorities of PCTs existing functions around dental public health. Sections give powers to upper tier local authorities or groups of local authorities to make proposals to the SoS for the fluoridation of local water supplies. These powers resided with SHAs, which are to be abolished under the Act. Section 18 gives the SoS powers to make regulations requiring local authorities to carry out public health functions and Section 22 enables him/her to delegate further public health functions. In DH policy documents, it has been made clear that the SoS intends to make the provision of certain additional public health services mandatory for local government from April These include: providing appropriate access to sexual health services ensuring there are plans in place to protect the health of the population, including immunisation and screening plans ensuring NHS commissioners receive public health advice on matters such as health needs assessments for particular conditions or disease groups, evaluating evidence to support the process of clinical prioritisation for populations and individuals and new drugs and technologies in development this advice has become known as the core offer from public health to CCGs. the NHS Health Check programme for people between 40 and 74. Under Sections 43 and 55 respectively, local authorities have an additional duty to arrange independent mental health advocate (IMHA) and independent mental capacity advocate (IMCA) services. IMHAs provide help and support for people subject to the 1983 Mental Health Act and IMCAs provide a similar service under the Mental Capacity Act 2005 (see resources). 22 Get in on the Act Health and Social Care Act 2012