Secretary of State Responsibility

The Department of Health has produced a document called the Memorandum for the House of Lords Delegated Powers and Regulatory Reform Committee. At 322 pages, it is rather long, but it is worth skimming through to see how the department thinks it can persuade the Lords.

In this blog I want to address the duty of the Secretary of State for Health.There is a lot of controversy about this at the moment and it is rumoured that the Liberal Democrats will capitulate and will not take part in voting in the House of Lords if the government can come up with words that reassure them about the role of the SoS. If this is the case then it is disgusting that Lib Dems have agreed to a shady backroom deal and shirk their Parliamentary duty, but to be frank, it would not surprise me.


The memorandum starts with the following paragraph:

10. The Bill maintains the overarching duty of the Secretary of State, which dates from the original NHS Act of 1946, 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 illness.” It distinguishes for the first time between healthcare and public health, laying the way for the new Public Health England. It also sets clear constraints on the Secretary of State’s ability to intervene in the NHS.

This is bizarre, first it says that the SoS duty conferred by the 1946 Act will be maintained, but then says that the SoS's ability to intervene is constrained. So which is it, the SoS maintains his historic duty or is constrained? You cannot have both.

The next paragraph makes it clear that the SoS will lose powers:

11. The Bill sets out a framework for the NHS in which functions are conferred directly on the organisations responsible for exercising them and the Secretary of State retains only those controls necessary to discharge core functions. This contrasts with the current model, in which the majority of duties, powers and functions are conferred on the Secretary of State and then delegated to NHS bodies.

This tells us that the current situation is that the SoS has "duties, powers and functions" conferred upon him but the Bill will strip him of these and will only get "those controls necessary to discharge core functions". This is exactly what we are complaining about. The original NHS Act put a duty on the SoS and we expect the minister to be responsible. The Bill removes that responsibility. It is clear that the SoS cannot run the entire health service himself and so has to delegate that responsibility to other organisations. But the important point is that at the moment the buck stops at the SoS. We hold him to account, and this means that he has an incentive to improve the service. The Bill removes that incentive.

The document is full of contradictions, it tells you what will happen and then tells you that the result will be something other than what the policy will do. For example:

15. The Bill also places a new duty on the Secretary of State to act with a view to promoting the autonomy of arm’s length bodies, commissioners and providers to exercise their functions as they see fit, so far as is consistent with the interests of the health service. This duty would require the Secretary of State, when considering whether to place requirements on the NHS, to make a judgement as to whether these were in the interests of the health service. If challenged, the Secretary of State would have to be able to justify why these requirements were necessary. It does not undermine his duty to promote a comprehensive health service. The Secretary of State will remain ultimately accountable for the NHS.

First this says that the SoS has a "duty" to lessen his responsibility as much as possible, then it says that this does not reduce his duty. If you restrict the duty of the SoS then the SoS's duty has been restricted! (Incidentally, "providers" are hospitals, community health services and primary care like GPs. This is saying that the SoS has no control whatsoever over what they will do.)

This statement on autonomy is like handing him a cage of sparrows and saying "it is your duty to look after these sparrows, but you cannot keep them in the cage". If the SoS opens the cage the sparrows will fly free, so he cannot be responsible for what they do. How can a SoS be responsible for organisations that are autonomous? Autonomy means that the SoS no longer controls them. This statement is clearly saying that the SoS cannot be responsible for the NHS, yet the last sentence tells us that he is!

To labour the point further, the memorandum says:

16. The overall framework proposed in the Bill is designed to give the NHS greater freedoms, improve transparency and help prevent political micro-management. The powers of the Secretary of State would be constrained and made more transparent. At the same time, political accountability to Parliament would be strengthened. For example, the Bill places a new duty upon the Secretary of State to keep health service functions under review and to report annually on the performance of the comprehensive health service.

Yet again: "the powers of the SoS will be constrained". But look at the last sentence: the new "duty" of the SoS is merely to report annually. Currently the SoS has to answer health services questions once a month and MPs can ask the Prime Minister a question about the NHS at PMQs which is held weekly. Instead of weekly or monthly accountability, we will have annual accountability. Is this really an improvement?

The SoS will no longer be able to tell NHS providers to improve. For example, in 2007 the government decided that MRSA infections had to be tackled and the government ordered a "deep clean" of NHS hospitals. In August 2010 Andrew Lansley pledged to end mixed sex accommodation by the end of the year (in fact, he has failed, as he admitted at the Tory party conference where he said that mixed sex accommodation has been "curbed by 90%", whatever that means). Under the new system the SoS will not be able to order "deep cleans" or to rid the service of mixed sex accommodation, because paragraph 12 says that the SoS "will be removed from operational management". Instead, the SoS will merely request that something should be done through something called "standing rules":

19. In line with the policy intention to give more autonomy to the NHS, the Secretary of State would not have a general power of direction over the Board or clinical commissioning groups. Instead, the Secretary of State would have a new power to make regulations ("standing rules") which set out the system rules with which the Board and clinical commissioning groups would need to comply in certain areas. These areas are specified on the face of the Bill, and the detail would be set out in regulations.

So when the SoS wants something to be done, he has to create a standing rule and pass this to the NHS Commissioning Board and/or the Clinical Commissioning Groups and ask them do to something about the issue. Of course, NCB and CCG do not provide healthcare, they commission it (the clue is in their names) and this means that if any operational changes need to be made the commissioners have to then ask the providers to make the changes. This is a labyrinthine process and is likely to paralyse the system. Further, the NCB will only be accountable once a year, (as will the SoS) so there will be no regular public accountability. Basically, nothing will be done and the SoS will tell us that it is not his fault that nothing is being done.

Can you seriously imagine someone like Lord Sugar wanting to change his business and being satisfied with writing a request for the change to be made and hoping that something will be done? Of course not. Lord Sugar will want to bang heads together, bark orders and if things don't get done, fire staff! That is what it means to be responsible. Yet the SoS, who we are told has ultimate responsibility for the NHS, will not be able to demand changes are made, and will not be able to sack those who fail to deliver.

The SoS currently has a power to create a Special Health Authority and delegate powers to that organisation to provide a service to all of England. The SoS has responsibility for the service and ultimately can intervene if the SpHA has problems. For example, the National Blood Authority is a special health authority and in fact, the National Commissioning Board itself is currently a Special Health Authority (its status will change once the Bill is passed). Currently SpHAs are created under the powers of the SoS, but the Bill restrict this power in the future:

23. The Secretary of State would continue to have a power to establish new Special Health Authorities by order, but this would be subject to limitations. In order to establish a new Special Health Authority, the establishment order would have to specify the period for which the body is to be established, which could be no more than three years. At the end of that period, the body would be automatically abolished and its staff, property and liabilities transferred in accordance with the establishment order. If deemed necessary, the lifespan of a Special Health Authority could be extended by order subject to the affirmative resolution procedure, or the functions, staff and property of the Special Health Authority could be transferred to a new body established as a non-departmental public body through primary legislation.

The "affirmative resolution procedure" mentioned here refers to a process where both Houses of Parliament have to agree to the motion.

This paragraph shows that the powers of the SoS are being seriously restricted, and even those things that the SoS is allowed to do, there is an automatic sunset clause. This is a legislative straitjacket, showing that the SoS will be largely impotent when it comes to running the health service in the future.

The government is trying very hard to convince people that the Secretary of State for Health will still be responsible for the health service. However, the House of Lords memorandum shows that this is not the case. Many of the SoS powers are being transferred to the NHS Commissioning Board, other powers (currently delegated - but not transferred - to Strategic Health Authorities and Primary Care Trusts) will be transferred to Clinical Commissioning Groups. This is very important, the SoS will transfer these powers, not delegate them, so he will not be, and never more will be, responsible for these powers.

After the Bill is passed the SoS will never again be responsible for the majority of the provision of the NHS.