Policy paper

Health and Care Bill: improving accountability and ensuring public confidence – NHS accountability measures

Updated 10 March 2022

This was published under the 2019 to 2022 Johnson Conservative government

Background

The Secretary of State is responsible to Parliament for the NHS.

The Health and Social Care Act 2012 established NHS England, Monitor and the NHS Trust Development Authority. Each is a separate legal body and has their own statutory functions. However, since 2018, they have been working under a single operating model effectively as one organisation. This operating model reflects the wider changes in how the NHS has evolved since 2012, with a greater focus on collaboration and integration. However, there are limits to how closely these bodies can work together while they remain separate legal organisations.

The Secretary of State is responsible for holding each of these organisations to account and each has their own accountability arrangements, reflecting the particular functions of that body.

What the Bill will do

1. Merge NHS England, Monitor and the NHS Trust Development Authority
2. Make changes to the Mandate and financial directions to NHS England
3. Provide a Secretary of State power to direct NHS England
4. Provide a Secretary of State power of direction in respect of Public Health functions
5. Provide a Secretary of State reconfigurations intervention power

Merging NHS England, Monitor and the NHS Trust Development Authority

The Bill formally brings together NHS England and NHS Improvement (Monitor and the NHS Trust Development Authority) into a single legal organisation. Having a single organisation removes the remaining bureaucratic and legislative barriers, enabling the organisation to provide unified national leadership, and bringing commissioner and provider oversight closer together to support strategic decision making.

Mandate and financial directions to NHS England

The mandate will remain the main way through which government will set the strategic priorities for the NHS. The Secretary of State will continue to have a duty to lay in Parliament and publish a mandate to NHS England. However, the Bill proposes that the mandate duty should become more flexible, so that a mandate can last longer than a current single year. This will help longer term planning for the NHS while also meaning that the Mandate can respond to changing need, for example during a pandemic.

It’s vital the government listens to the NHS in setting strategic priorities. There will still be a legal duty for the Secretary of State to consult NHS England, Healthwatch England (representing patients) and others before setting objectives. Every mandate, and any associated regulations, will continue to be laid in Parliament.

It will still be important that the NHS knows how much money it has each year. In order to continue the annual capital and revenue resource spending limits on NHS England, we will require the Secretary of State to lay and publish annual financial directions in Parliament.

Secretary of State power to direct NHS England

NHS England will remain accountable to the Secretary of State and Parliament. However, because NHS England will now have expanded powers and responsibilities it is important to ensure the accountability arrangements reflect those new powers. To ensure appropriate democratic oversight, we are creating powers for the Secretary of State to give directions to NHS England. Directions must be made in the public interest, in writing, and be published.

We expect NHS England to continue to make the vast majority of its decisions without direction, consulting government and others as it needs to. We do not expect to issue directions frequently, and there are explicit exemptions to prevent the Secretary of State from using the power to direct NHS England in relation to individual appointments in NHS England, NHS Trusts and Foundation Trusts; individual clinical decisions; or in relation to drugs or treatments that the National Institute for Health and Care Excellence (NICE) have not recommended or issued guidance on as to its clinical and cost effectiveness.

The powers apply only to functions of NHS England, not other Arm’s Length Bodies or other NHS bodies (like hospitals or Integrated Care Boards) and will sit alongside the existing accountability mechanisms and processes. NHS England will remain an Arm’s Length Body and will continue to exercise the majority of its functions as it does now, guided by the Mandate and the Framework Agreement between DHSC and NHS England.

Power of Direction – Secretary of State Public Health functions

This Bill also introduces a power for the Secretary of State to direct NHS England or an Integrated Care Board to discharge public health functions delegated by the Secretary of State. This is intended to enable greater speed, agility, certainty and clarity across the system, to keep in step with challenges presented to public health, and to strengthen the Secretary of State’s ability to play the role in the system that Parliament expects of them. As with the other power of direction, any direction must be made in writing and be published.

Secretary of State reconfigurations intervention power

Finally, the Bill will also create a new power that will allow the Secretary of State to make decisions about local reconfigurations. Reconfigurations involve changing the way NHS services are delivered to patients such as the closure of several stroke units being replaced with a single centralised hyper acute unit.

Currently the Secretary of State only has a role when reconfigurations are referred to him by the local authority, through their Health Oversight and Scrutiny Committee (HOSC) which can scrutinise any local health services provided and commissioned through the NHS as well as those provided by local authorities. This means that the Secretary of State only has a very limited say in those decisions, which means that Parliament cannot hold the Secretary of State to account for those decisions, even when they affect MPs or their constituents.

This new power will allow the Secretary of State to call-in any reconfiguration at any stage of the process. To support this, the current local authority referral power will be amended. This does not remove the local HOSC role in scrutinising service changes or the requirement to involve them. The role of the Independent Reconfiguration Panel (IRP) to provide expert advice on reconfigurations to the Secretary of State also remains.

The Secretary of State will always need to seek appropriate advice, whether that’s from clinicians, local leaders or other experts to inform their decisions, and will be transparent about the rationale for his decision.

How these provisions will help to improve accountability

Both the public and Parliament rightly expect to be able to hold decision makers who oversee the health and care system to account. These measures focus on ensuring that the framework for national oversight of the NHS is fit for purpose now and into the future, whilst also enabling systems to get on with doing their job and enabling transformation and innovation.

The public largely see the NHS as a single organisation and as local health systems work more closely together, the same needs to happen at a national level. By formally bringing NHS England and NHS Improvement together, we will remove these remaining bureaucratic and legislative barriers, enabling the organisation to come together to provide unified national leadership.

These measures will support the Secretary of State to use directions and the new, more flexible, Mandate to make structured interventions to set clear direction, support system accountability and agility, and also enable the government to support NHS England to align its work effectively with wider priorities for health and social care. This will serve, in turn, to reinforce the accountability to Parliament of the Secretary of State and government for the NHS and the wider health and care system.

Finally, when it comes to significant service change, some Parliamentarians have criticised the current system for a lack of accountability and timely access to decision-making for them and the people they represent. These measures will ensure a clear line of accountability for service reconfigurations with a power for ministers to determine service reconfigurations earlier in the process than is presently possible.

Further information

The NHS Long Term Plan, January 2019

The NHS’s recommendations to government and Parliament for an NHS Bill, September 2019

NHS England and NHS Improvement, Implementing the Long Term Plan: proposals for possible changes to legislation, February 2019

Department of Health and Social Care, Integration and innovation: working together to improve health and social care for all, February 2021

NHS public health functions agreements (known as Section 7A agreement)

The government’s mandate to NHS England 2021 to 2022, and 2021 to 2022 Financial Directions – see NHS mandate 2021 to 2022