The Health and Care Bill

3rd August 2021

In February 2021 the Department for Health and Social Care published a White Paper on improving health and social care for all, which set out the Government’s proposals for reform of the health and care sector.

The Health and Care Bill was introduced in the House of Commons on 6 July by the Secretary of State of Health and Social Care, Sajid Javid. The purpose of the Bill is to implement “the policies that were set out in the NHS’s recommendations for legislative reform following the Long Term Plan and the White Paper.”

It aims to support the Government in:

  • Promoting local collaboration;
  • Reforming the NHS Provider Selection Regime;
  • Improving accountability and enhancing public confidence in the health and care system; and
  • Delivering a range of targeted measures to support people at all stages of life.

To achieve this the Health and Care Bill proposes various reforms including:

  • Restricting online and TV advertising on less healthy food and drink;
  • Providing the Secretary of State with more powers to transfer functions between some of the Arms Length Bodies;
  • Permitting the Care Quality Commission to assess how local authorities deliver their adult social care functions;
  • Provisions to support integration and collaboration;
  • Establishing existing Integrated Care Systems on a statutory footing; and
  • A reformed procurement regime.

Procurement reform

One of the reforms is to remove the current procurement rules which apply for NHS and public health service commissioners when arranging clinical healthcare services. The Bill proposes creating a separate procurement regime for these services, which will include removing the procurement of health care services for the purposes of the health service from the scope of the Public Contracts Regulations 2015 and will repeal the section 75 of the Health and Social Care Act 2012 and the National Health Service (Procurement, Patient Choice and Competition) Regulations 2013.

The Bill proposes to develop a new procurement regime for the NHS and public health procurement to reduce bureaucracy and the need for competitive tendering where it adds limited or no value. The reforms are stated to only apply to procurement of clinical healthcare services.

The White Paper provides that the ambition is to legislate to reduce the bureaucracy that inhibits flexibility and integration and to streamline accountability.

The Health and Social Act 2012 provides Monitor and the Competition and Markets Authority (CMA) with the role to provide regulatory oversight of competition issues within the NHS. It is proposed that these duties are removed “to allow NHS England to focus more on improvement in the quality of care and use of NHS resources, and on the development of integrated care.” Along with removing the CMAs power to investigate mergers, the proposals would instead allow NHS England to take on this role.

76% of the respondents to a consultation on the proposal to replace the current regime agreed or strongly agreed with the proposal. However, in the Research Briefing on Second Reading, the British Medical Association believed “the proposed reforms are insufficient to fully protect the NHS from unnecessary private sector involvement and could allow contracts to be awarded to private providers without proper scrutiny or transparency.”

The Public Services Committee also expressed concerns in a letter to the Government around the procurement and commissioning of public services in that competition is being prioritised to the detriment of collaboration among providers of public services and that the voluntary sector is not being given sufficient recognition.

The Health and Care Bill will continue to make its way through the House of Commons and it will be interesting to see how it progresses.

The Bill and any updates on its progress can be found here.

This article has been co-written by Jodie Grove and Joanne Thompson. Please contact Joanne if you have any queries.

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