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Chapter 2: NHS Bodies Roles and Functions

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This chapter has been updated in June 2014

 

Chapter 2:  A brief description of the role of the different public bodies within the NHS.

 

1.          The NHS is composed of a large number of public bodies, all of which have different functions and on occasions overlapping responsibilities.  This chapter seeks to provide a brief guide to the roles and responsibilities of the different bodies in order to understand where General Practice fits into the overall structures of the NHS.

 

2.          NHS bodies can broadly be divided into 4 types, namely:

 

a.          Overarching national NHS bodies;

 

b.          Commissioners of NHS services;

 

c.           Providers of NHS services; and

 

d.          Regulators, namely public bodies which supervise the performance of those individuals and public bodies who commission or provide NHS services and body that oversee the performance of NHS bodies.

 

3.          Some NHS bodies perform more than one function.  Hence, for example, NHS England is both a commissioner and a regulator. 

 

The Secretary of State.

4.          The Secretary of State sits at the apex of the NHS.  The Secretary of State is a cabinet minister and a member of parliament, usually an elected MP.  The present occupant of the office is Rt. Hon Jeremy Hunt MP.  The Secretary of State has overall political responsibility for the NHS and plays a key strategic role, particularly by setting the Annual Mandate for NHS England.  However his operational legal role has been substantially diminished by the Health and Social Care Act 2012.

5.          Section 1 of the NHS Act provides:

 

The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement—

 

(a)     in the physical and mental health of the people of England, and

 

(b)     in the prevention, diagnosis and treatment of physical and mental illness.

 

(2)     For that purpose, the Secretary of State must exercise the functions conferred by this Act so as to secure that services are provided in accordance with this Act.

 

(3)     The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England”

 

6.          The Secretary of State has a duty to “promote” a comprehensive health service under this section.  In order to achieve this vision of a comprehensive health service, clinical commissioning groups and the NHS Commissioning Board (known as “NHS England”) have a duty to provide a range of services to meet the reasonable requirements of patients for services as well as making arrangements to provide primary care, dental and pharmaceutical services.

 

7.          There is an important distinction in law between the duty on the Secretary of State to promote a comprehensive health service and a duty to provide a comprehensive health service.  The statutory duty to promote a comprehensive health service has limited overall legal effect because the combination of budgetary, staffing and other resource pressures on the NHS mean that a truly comprehensive health service will never, in fact, be provided.   The supply of publicly funded health services, largely free at the point of use, means that NHS doctors can do more for patients and that, in turn means that there is more demand for health services.  The NHS cannot ever provide a truly comprehensive health service (in the same way as no publicly funded health services anywhere in the world can be comprehensive).  However the statutory duty exists to remind the Secretary of State that his duty is to ensure the NHS should be as comprehensive as budgets and other resources permit.  The Court of Appeal considered the conundrum of a legal duty which can never be fulfilled in Coughlan v North and East Devon Health Authority [2001] QB 213 where the court said:

 

“24.  The first qualification placed on the duty contained in section 3 makes it clear that there is scope for the Secretary of State to exercise a degree of judgment as to the circumstances in which he will provide the services, including nursing services referred to in the section. He does not automatically have to meet all nursing requirements. In certain circumstances he can exercise his judgment and legitimately decline to provide nursing services. He need not provide nursing services if he does not consider they are reasonably required or necessary to meet a reasonable requirement.

 

25. When exercising his judgment he has to bear in mind the comprehensive service which he is under a duty to promote as set out in section 1. However, as long as he pays due regard to that duty, the fact that the service will not be comprehensive does not mean that he is necessarily contravening either section 1 or section 3. The truth is that, while he has the duty to continue to promote a comprehensive free health service and he must never, in making a decision under section 3, disregard that duty, a comprehensive health service may never, for human, financial and other resource reasons, be achievable. Recent history has demonstrated that the pace of developments as to what is possible by way of medical treatment, coupled with the ever increasing expectations of the public, mean that the resources of the NHS are and are likely to continue, at least in the foreseeable future, to be insufficient to meet demand”

 

8.          There were fierce debates about the role of the Secretary of State during the passage of the Health and Social Care Act 2012.  The then Secretary of State, Andrew Lansley, saw the role of the Secretary of State to set the strategic framework but to be detached from any duty to implement those decisions.  However that meant that no one was accountable in parliament for decisions taken within the NHS.  A compromise is reflected in section 1(3) which provides that

 

“The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England”

 

9.          Thus, as has always been the case, the minister is required to take responsibility for decisions to close hospitals, for breaches of waiting list targets and anything else which goes wrong right across the NHS.

 

10.       The Secretary of State has a range of further duties set out in sections 1Aff of the NHS Act including the duty to exercise his functions with regard to the need to reduce inequalities.  However it is beyond the scope of this website to describe these duties in detail.

 

Commissioners of NHS services.

11.       The NHS has been (largely) divided into commissioners (originally called purchasers) and providers since 1993.  There is an open debate as to whether the vast resources spent over the years in maintaining the commissioner/provider divide have delivered value for money for the NHS.  The evidence base to support the commissioner/provider divide appears weak but maintaining this arrangement has continued to be the policy of successive governments. 

 

12.       The term “commissioning” is not defined in the NHS Act but (before it was closed down in the latest reorganisation of government websites) the NHS Improvements website explained the meaning of “commissioning” as follows:

 

“Commissioning is a cycle of activities that includes assessing the needs of a population; analysing 'gaps'; setting priorities and developing commissioning strategies; influencing the market to best secure services and monitoring and evaluating outcomes. In other words, it involves buying in services from a range of health service providers (including GPs, dentists, community pharmacists, NHS and private hospitals, and voluntary sector organisations) to meet the health needs of local people, and monitoring how well they are being delivered. Commissioning is an on-going process that applies to all services, whether they are provided by the local authority, NHS, other public agencies, or by the independent sector” (emphasis added)”

 

13.       This suggests that “commissioning” NHS services is a continuing activity for NHS commissioners.  Within the overall commissioning process, specific decisions may have to be made such as closing down or reconfiguring a particular NHS service.  When that happens, an NHS commissioner will enter into a particularly intense period of decision making regarding the defined service.  However, as the above definition explains, the overall commissioning duties of NHS commissioners are continuous and work on commissioning matters continue at all times and exist outside of any specific processes set up for service areas.

 

14.       The commissioning cycle for every clinical commissioning group works on an annual cycle which is, at least in part, is defined by the NHS commissioners’ annual plan which ought to set out its commissioning intentions. 

 

15.       The main commissioners in the NHS are:

 

         a)               NHS England:  NHS England is the “trading name” of the National Health Service Commissioning Board.  This body was created by the Health and Social Care Act 2012.  It licences and, to limited extent, performance manages, clinical commissioning groups.  However NHS England is also a commissioner of a wide range of specialist NHS services, including prison health services, medical services for the armed forces and a wide range of specialised and tertiary acute services.  NHS England commissions services for patients with rare conditions and also commissions primary care medical and dental services.  This means that all GP practice contracts are between NHS England and the local GP provider.  Detailed arrangements for NHS England are set out in Schedule 1 to the Health and Social Care Act 2012;

 

         b)               Clinical Commissioning Groups:  These are local corporate public bodies created by the Health and Social Care Act 2012.  The members of a CCG are the local general practices in the CCG area who hold NHS commissioning contracts with NHS England.  CCGs substantially replaced primary care trusts by taking on the commissioning of a range of acute and community NHS services (other than primary care, dental care and specialist services) for the patients for which the CCG has responsibility.  The CCG has a constitution and a Board, which is partly elected by the local GPs, and partly consists of other stakeholders in the local NHS.  Detailed arrangements for CCGs are set out in Schedule 2 to the Health and Social Care Act 2012; and

 

          c)               Local Social Services Authorities:  The Health and Social Care Act 2012 transferred responsibility for public health commissioning from primary care trusts to the local authorities.  In practice this means that commissioning public health services is the responsibility of unitary local authorities or, in a case where there are 2 tiers of local authority, the county council.

 

16.       The division of commissioning responsibility between NHS England, CCGs and local authorities are largely set out in the NHS Act and the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (“the 2012 Regulations”).  The services that are commissioned by NHS England are set out Part 3 of these Regulations and broadly cover the following:

 

a.          High secure mental health services (see section 4 of the NHS Act);

 

b.          Primary care medical services (see Part 4 of NHS Act);

 

c.           Primary care dental services (see Part 5 of the NHS Act);

 

d.          Ophthalmic services (see Part 6 of the NHS Act);

 

e.          Community pharmaceutical services (see Part 7 of the NHS Act);

 

f.           Community dental services (see Regulation 6 of the 2012 Regulations);

 

g.          Community and secondary care services for members of the armed forces and their families (see Regulation 7 of the 2012 Regulations);

 

h.          Infertility treatment for former members of the armed forces (see Regulation 8 of the 2012 Regulations);

 

i.           Community and secondary care services for prisoners and other persons detained by the government (see Regulation 10 of the 2012 Regulations);

 

j.            Specialised services for those suffering from conditions set out in Schedule 4 to the 2012 Regulations (see Regulation 11 of the 2012 Regulations);

 

k.          Services that were arranged under the Independent Treatment Centre Programme (see Regulation 12 of the 2012 Regulations); and

 

l.           Specialised clinical risk assessment and management services for people with mental health problems who may present a risk to prominent people or locations, known as “fixated threat assessment services” (see Regulation 13 of the 2102 Regulations).

 

17.       The budget for specialised services is in the region of £12.2Bn and so constitutes about 10% of the overall NHS budget.  The list of 142 specialist areas has been amended on various occasions since the list was published in 2012, and looks set for further amendment.  The list (at June 2012) is available as an attachment here. However some descriptions of services which are commissioned by NHS England are fairly generic such as “Specialist surgery for children and young people”.  However further details are set out in the Manual for Specialised Commissioning published by NHS England.

 

18.       Local authorities only had a limited role in the NHS until the Health and social Care Act 2012.  However that Act transferred public health functions from primary care trusts to the local authority which had social services functions.  This is a county council in areas where there are 2 tiers of local authorities or unitary authorities in those areas just having a single local authority.  Local authorities are required to work jointly with the Secretary of State to appoint a “Director of Public Health” (see section 73A of the NHS Act). 

 

19.       The primary duties of local authorities are expressed widely in section 2B of the NHS Act as follows:

 

“Each local authority must take such steps as it considers appropriate for improving the health of the people in its area”

 

20.       These are, of course, open ended obligations which are severely restricted by the budgets available to local authorities.  They include health prevention services, sexual health services and a host of other areas where timely intervention can reduce the need for later acute services.   A useful guide to discharging public health functions has been prepared by the Kings Fund.

 

21.       The main commissioning duties of CCGs are set out in section 3 of the NHS Act which provides as follows:

 

“A clinical commissioning group must arrange for the provision of the following to such extent as it considers necessary to meet the reasonable requirements of the persons for whom it has responsibility—

 

(a)     hospital accommodation,

 

(b)     other accommodation for the purpose of any service provided under this Act,

 

(c)     medical, dental, ophthalmic, nursing and ambulance services,

 

(d)     such other services or facilities for the care of pregnant women, women who are breastfeeding and young children as the group considers are appropriate as part of the health service,

 

(e)     such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as the group considers are appropriate as part of the health service,

 

(f)     such other services or facilities as are required for the diagnosis and treatment of illness

 

22.       However section 3(1E) provides that the duty in subsection (1) does not apply in relation to a service or facility if the Board has a duty to arrange for its provision.  There can therefore be no “overlap” between services.  CCGs only have commissioning responsibility for the above services to the extent that these are not the commissioning responsibility of NHS England.

 

Providers of NHS services.

23.       The main providers of NHS services are:

 

a.          GP practices:  Almost all GP practices are private sector businesses which are owned by GPs which contract with NHS England to provide primary care services to NHS patients across one or more practice areas.  A GP practice can be owned by a single GP, a partnership of GPs, a partnership consisting of GPs and other approved persons or by a medical company.  More details of the types of organisations that can hold GP contracts can be found here;

 

b.          Dental practices:  Almost all NHS Dental practices are private sector businesses which are owned by dentists which contract with NHS England to provide primary care services to NHS patients across one or more practice areas.  Largely same restrictions on ownership apply to dentists as apply to GP practices;

 

c.           NHS Trusts:  These are NHS bodies created under Chapter 3 of Part 2 of the NHS Act 2006.  NHS Trusts enter into acute services contracts with CCGs to provide a wide range of community, mental health and hospital services to patients.  The present plan of the government is that all NHS Trusts should become NHS Foundation Trusts or be taken over by an NHS Foundation Trust by 2016.  The Secretary of State has the power to issue Directions to an NHS Trust under section 8 of the NHS Act which, if lawfully made, imposes specific legal obligations on NHS Trusts to do things or provide services, or to cease to do something or cease to provide a service as specified in the Direction;

 

         d)               NHS Foundation Trusts:  These are public benefit corporations under Chapter 5 of Part 2 of the NHS Act 2006.  NHS Foundation Trusts have Members and Governors, as well as a Board of Directors.  NHS Foundation Trusts are accountable to a regulator, known as Monitor and are accountable to their members.  The Secretary of State has no power to issue Directions to an NHS Foundation Trust;

 

         e)               Special Health Authorities: These are NHS bodies that perform particular specialist functions within the NHS such as NHS Blood and Transplant which co-ordinates the supply of blood and organ transplantation services for the NHS.

 

Regulators of NHS services.

24.       The main bodies that regulate the performance of services by NHS bodies and have an interest in the way that NHS bodies are managed are as follows:

 

         a)               The Care Quality Commission:  The CQC is the statutory body with responsibility for ensuring that hospitals, care homes, dental and GP surgeries, and all other care services in England provide people with safe, effective, compassionate and high-quality care, and to encourage them to make improvements.  The CQC inspects and reports on all providers of social and health care in England, covering both the state and private sectors;

 

         b)               Monitor:  Monitor was previously known as the Independent Regulator for NHS Foundation Trusts.  However its role was changed by Part 3 of the Health and Social Care Act 2012. Its new role to “protect and promote the interests of patients” by attempting to ensure that the whole health sector works for their benefit.  It is, in effect, the competition regulator for the health market and so now has interests which extend far beyond NHS Foundation Trusts.  It exercises a range of powers granted by Parliament which include setting and enforcing a framework of rules for providers and commissioners, implemented in part through licences issued to NHS-funded providers;

 

          c)               NHS England:  NHS England has a regulatory function in respect of CCGs.  It licences CCGs and can step in if a CCG is not performing properly;

 

         d)               Healthwatch: Healthwatch is the latest in a long line of public bodies which are designed to feed the voice of the patient into the NHS.  Previous bodies include Community Health Councils and PALS.  Healthwatch England is a new public body set up by the 2012 Act to act as a national champion of patients’ interests.  There are now 152 local healthwatch groups who are supposed to champion the interests of patients in their local NHS.  It is too early to tell whether local healthwatch groups are likely to have any real impact on local service delivery.

 

         e)               Health Overview and Scrutiny Committees:  These are committees made up of members of the local social services authority.  Their role is to “review and scrutinise any matter relating to the planning, provision and operation of the health service(5) in its area:  see Part 4 of the Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013.  The committee must be consulted about any “substantial development of the health service in the area of a local authority” and, if they consider that the development is not “in the interests of the health service in its area”, it can refer the decision to the Secretary of State who then becomes the final decision maker;

 

          f)               Health and Wellbeing BoardsThe Health and Social Care Act 2012 establishes health and wellbeing boards as committee of the local authority.  It should be a forum where key leaders from the health and care system work together to improve the health and wellbeing of their local population and reduce health inequalities, in particular by facilitating better working between health and social care services.  Health and wellbeing board members ought to collaborate to understand their local community's needs, agree priorities and encourage commissioners to work in a more joined-up way. As a result, patients and the public should experience more joined-up services from the NHS and local councils in the future.

 

25.       It is difficult if not impossible to argue that the NHS is set up in a coherent or entirely logical way.  The arrangements have as much to do with politics as with good governance.  However the above system is designed to ensure a system of checks and balances with the patient supposedly at the centre of all decision making.  Whether that happens in practice is, of course, a matter of considerable debate.

David Lock QC

David Lock QC is a barrister at the Landmark Chambers.

180 Fleet Street
London, EC4A 2HG
DX 1042 (London)

He was called to the Bar in 1985 and was appointed Queens Counsel in 2011.

David Lock QC is Head of the Administrative & Public Law Group and the Judicial Review & high Court Challenges Group at No5 Chambers. - See more at: http://www.no5.com/barristers/barrister-details/137-david-lock-qc/#sthash.PcnGl1Eh.dpuf

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