Health and Social Care Bill checklist

The Health Bill's progress to date, what's next and how GP commissioners should get ready. By Ingrid Saffin

Health Bill's progress

  • The Health and Social Care Bill continues to progress slowly through Parliament. It has been through two readings in the House of Commons and completed its committee stage on 31 March 2011.
  • In April 2011 the government announced a break in proceedings for a listening exercise under the aegis of the NHS Future Forum and the Bill was sent to a Public Bill Committee for scrutiny. The Committee had 12 sittings and concluded its debate on the Bill on 14 July 2011.
  • The Bill’s next stopping point is the report stage, due on 6 September 2011. After that, the Bill will continue to progress through the Commons and Lords. There may be further delays, but the Bill is likely to become law.
  • SHAs are to keep their statutory roles for the whole of 2012/13. Subject to the Bill’s passage they will be abolished alongside PCTs on 31 March 2013.
  • The NHS Commissioning Board and the other new national  bodies will take on their full responsibilities on 1 April 2013.
  • By then (again subject to the Bill being passed), all GP practices in England will be clinical commissioning group (CCG) members. This is notwithstanding the BMA’s 20 July 2011 confirmation that it will continue to call for the Bill to be withdrawn while still ‘critically engaging with the government to achieve necessary improvements.’
  • Despite all the uncertainty, GPs and other healthcare professionals need to be ready for every eventuality and that preparation, if not already started, must start now.
  • The Bill is but one part of the picture: as and when it becomes law, many regulations will be issued which will put flesh on the bones of what is essentially an enabling Act.  At each stage there will be greater clarity so it will be interesting to see what happens in September.

Governance

  • GPs should be auditing and reviewing their practices so they are ready to move forward. This includes checking partnership deeds (and shareholder agreements if they are involved in a company), contracts of employment and ensuring premises leasing arrangements are up to date and in good order.
  • CCGs will continue as now, monitoring all developments as they arise, perhaps with particular focus on their own structure. Section 22 of the Bill sets out many principles expected of a CCG’s establishment and structure, including the functions and make-up of its governing body so is a useful checklist.
  • However there are many clauses, in section 22 alone, providing for regulations and guidance to be issued at a later date. For example, one clause states regulations may provide that there must be two lay members on the governing body of each CCG or on their remuneration and audit committees.

Staffing

  • The Bill makes provision for staff transfer schemes in connection with the merger, dissolution or variation of CCGs.
  • It does not overtly refer to a staff transfer scheme from a PCT to a consortium, so it is unclear if staff transfer scheme provisions apply in relation to this.
  • In practice, the Transfer of Undertakings (Protection of Employment) regulations TUPE would probably apply to most of transfers of functions from a PCT to a CCG, although whether individuals transfer with their job will depend on the specific facts.
  • The staff transfer schemes proposed do allow additional rights and liabilities that would not otherwise be transferred to be moved, as well as criminal liabilities.
  • A staff transfer scheme may also create or impose rights, as well as making provision regarding the continuation of any current legal proceedings.

Property

  • CCG trustees will be able to own property either for the purposes of the CCG or for any purpose relating to the health service in England.
  • CCG trustees will also be allowed to raise external funding for developing property.
  • The Bill contains provisions for property transfer schemes from PCTs and SHAs.
  • CCG members should be careful to establish who should be trustees, what their liability will be  and whether or not other persons should share their liability.

Ingrid Saffin is a partner at law firm Mundays LLP, www.mundays.co.uk

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