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The Health and Care Bill – a Q&A update

The Health and Social Care Bill completed its House of Commons stages and was introduced into the House of Lords on 24 November 2021.

Q. What does the Bill do?A. It has three main purposes:
  • to integrate NHS healthcare and local government social services
  • to introduce a cap on how much people spend on their personal social care
  • to give greater powers to the Health Secretary
Q. What is the relevance to the life sciences industry?A. The following elements are relevant:
  • Clinical Commissioning Groups (CCGs), with which the industry is very familiar, will be abolished and replaced by 42 new Integrated Care Boards (ICBs). These will be responsible for health and social care matters but will be NHS bodies and answerable to the Health Secretary. The financial arrangements will be crucial, and the Government has promised (23 November 2021, Report Stage of the Bill) to bring forward a White Paper on this issue, although no date was given
  • The Bill has retained unaltered a new clause which would empower the Health Secretary to commission certain specialised services that he deems appropriate and to disregard the financial implications for ICBs. This means that he can effectively override the National Institute for Health and Care Excellence (NICE) and NHS England. The Explanatory Notes to the Bill anticipate that this power will be used for patients with rare cancers, genetic disorders and complex medical or surgical conditions
  • NHS Digital will be able to amass more information about the use of medicines and medical devices and their effects on patient safety. The Medicines and Healthcare products Regulatory Agency (MHRA) will be able to use this information to establish and maintain comprehensive and centrally-held UK-wide medicines and medical device registries (where the MHRA’s independent advisory body recommends) to improve market surveillance on the use of medicines and medical devices
  • A new Clause 19 was agreed at Report Stage requiring the Secretary of State to set objectives for the NHS on cancer treatment which are defined by outcomes (such as one-year or five-year survival rates) and would give these objectives priority over other objectives relating to cancer treatment such as waiting times
  • These integration reforms will involve a fundamental and time-consuming re-organisation of the NHS. They will divert ministerial and departmental attention from other major health issues across all sectors
Q. Will the Bill be approved by the House of Lords? A. There will be difficulties, but subject to the social care cap (see below), the Bill is likely to go through subject to some changes.

The Lords is different from the Commons in containing a large number of former health and other ministers and top health professionals in their own fields, so any Minister in the Upper House has to tread very carefully. Furthermore, the Government does not have a majority in the House of Lords. However there has been widespread support for the integration of health and social care across parties, professional organisations and from within the NHS and local government, so no serious challenge has emerged. It should be noted that in recent weeks, there have been suggestions in the media that there may be difficulties as the Bill is debated in the Lords which may set schedules back by a few months. Moreover, Lord Kamall, the Health Minister in the Lords responsible for Technology, Innovation and Life Sciences, who will steer the Bill through the House, is well-placed to do so successfully. He has had a distinguished academic career, was Leader of the Conservatives in the European Parliament and is both liked and respected. The Government is confident that the Bill will be on the Statute Book in time to be implemented in April 2022.

Q. What are the main issues other than the social care cap? A. The three main ones are:
  • A call to place a duty on the Secretary of State to publish independently verified assessments of the workforce numbers needed now and in the future. This is supported by the Chair of the Health Select Committee, Jeremy Hunt MP, a former Health Secretary, as well as by other Parliamentarians and health organisations like the doctors’ trade union, the BMA and will certainly feature in the debates
  • Although the Bill repeals enforced competition, the new regime is seen by the Labour Party and others as enabling contracts to be awarded to private sector companies without scrutiny and transparency. There is also concern that private providers could obtain seats on Integrated Care BoardsHowever, the King’s Fund has concluded that there is no evidence that the Health and Social Care Act of 2012 produced widespread privatisation of services and that it is unlikely that the Bill will result in a substantial change in the private sector’s involvement in the NHS. The Government has also argued that Board members are obliged to act in the best interests of patients, taxpayers and their local populations, and any such private providers would be in a small minority
  • Concern has been expressed about the powers given in Schedule 6 in the Bill requiring any NHS body to notify the Secretary of State of any reconfiguration of NHS services or measures likely to result in reconfiguration. This could mean any service change, large or small, would come before him and risk an administrative log-jam and delaying decisions that clinicians had concluded would benefit patients
Q. What about the social care cap? A. This will be the most contentious part of the Bill in the Lords and the Government may have to consider some changes to the cap if it wants to avoid unacceptable changes and delays in the Parliamentary process.

The Government suddenly and at a late stage (22 November) introduced an amendment to the Bill to cap the amount that anyone will be forced to spend on personal care costs in their lifetime at £86,000. This figure excludes any income support received from local authorities. The existing means test will be altered, so that the upper capital limit will rise from £23,250 to £100,000, so that more people will be eligible for some state support towards the cost of care, and the lower capital limit will rise from £14,500 to £20,000 so that savings/assets below £20,000 will be protected. The issue was well set out by Jonathan Ashworth, the then Shadow Labour Health Secretary: “Somebody with a £1million house will have 90% of that asset protected, but someone with an £80,000 house in Barrow, Mansfield or Hartlepool will lose nearly everything. That cannot be fair. ”This argument produced the biggest revolt within the Conservative Party since the 2019 General Election, with the amendment passing by just 26 votes. The House of Lords will prove much more difficult to convince and there are indications that this is recognised by the Government.

Q. What are the next stages in the House of Lords?A. As follows:

The Bill has received its First Reading (a formality) and will have its Second Reading on 7 December, when its main principles and policies will be debated. The Bill then moves into Committee, where the Government will face its most serious challenge, and where amendments will be put down. The final Stages are Report and Third Reading, which are usually straightforward. Any amendments made in the Lords will then have to go to the House of Commons for its consideration. MAP will follow the Bill’s progress and update the website as appropriate.

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