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Close to an Act: how did the Health and Social Care Bill get passed?

AADD-UK has received permission from Mike Birtwistle, Head of MHP Health, to reproduce his analysis as to how the Health and Social Care Bill is now set to become an Act, barring any last-minute dramatic revelations. We asked for Mike’s permission because his analysis helps us to understand how these reforms might impact our access to assessments, diagnosis, and treatment for ADHD, and also helps us to figure out how we can address impacts resulting from these reforms.

Close to an Act: how did the Health and Social Care Bill get passed?

Submitted by Mike Birtwistle on 20-03-2012

It’s all over, bar some (more) shouting. The Health and Social Care Bill is nearly law but, after hundreds of hours of debate, thousands of amendments and countless controversies, what will it actually mean? And how on earth did it ever get passed?

Theoretically the Queen could decline to give Royal Assent to the Bill, as Unite suggested last week. However, barring any constitutional outrages or last minute shocks in the Commons, it will become an Act. And the Health and Social Care Act will represent one of the longest and most complex items of health legislation ever known. That it passed through a hung Parliament, in the teeth of such controversy is no small feat.

For better or worse, the Act will represent one of the most profound pieces of reforming legislation ever (alongside the Attlee reforms of the 1940s and some of the market reforms of the last Conservative Government). I believe all three sets of reforms have problems, but the scope of their impact and ambition is undeniable.

Reworking the NHS

As you flick through the new Act, chapter after chapter introduces whole new approaches to how the NHS works. Short of the original NHS Act, there is no other piece of legislation I can recall which changes so comprehensively how the NHS works:

• Section 1 of the original NHS Act has been changed. The Secretary of State no longer has a duty to provide – that means he no longer has any legal mechanism through which he can exercise his own will directly on the NHS. That is a change which has historically been necessary to enshrine the purchaser-provider split from 1990 – the failure of legislation to do so then meant that the divide has been permanently muddied for 25 years

• Section 8 of the Health and Social Care Act establishes an independent NHS Commissioning Board. It goes further than even the creation of the NHS Executive did to shift control away from ministers – again, by legislation which guarantees the Commissioning Board’s independence

• Section 9 establishes Clinical Commissioning Groups as independent statutory bodies in their own right – with functions conferred directly on them. Unlike Primary Care Trusts and Strategic Health Authorities these functions cannot simply be taken away

• Section 71 – and I write this advisedly – imposes competition law on the NHS

• Section 127 sets out the legal framework for putting an NHS hospital into administration

• Section 162 removes borrowing restrictions on NHS Foundation Trusts

• Section 164 lifts the private patient income cap

And there are others as well:

• Section 17 strips out most public health responsibilities from the NHS, and gives them instead to local councils

• Section 34 gives powers to determine whether to fluoridate water supplies to local councils (Andy Burnham should be happy about this, having campaigned long and hard for it as a new MP)

• Section 55 abolishes the Health Protection Agency

• Section 116 removes ministers from having any role in setting the tariff from NHS services

• Section 147 prevents ministers from encouraging an increase (or decrease) in the proportion of services provided by any particular sector, be it NHS, voluntary or independent

• Section 189 permits local councils to scrutinise the providers of all NHS-funded services – including in the private sector

• Section 231 establishes NICE as an independent body

Has the legislation received enough scrutiny?

Each one of these provisions could easily have seen fierce debate. Notwithstanding the row over whether or not these reforms were ‘top down’ (they were), in truth only sections 1, 71 and 164 – the purchaser-provider split, competition law and the private income cap – have represented the flashpoints.

I find this quite extraordinary.

• Take clinical commissioning. In the 1990s, GP fundholding – the forerunner of clinical commissioning groups – was so abhorred by some parts of the NHS that fundholders were labelled ‘quislings’. But something similar in legislation has now been put in place. There has been no repeat of the denunciation of those GPs who have signed up to clinical commissioning groups – they all have – which is no mean achievement.

• A hospital administration regime was considered by the last Labour Government but baulked at, for fear of the political consequences. In this legislation, it has been set out with no particular scrutiny amongst the public (even if Lord Warner has done an admirable job in the Lords).

• And the prudential borrowing code was – alongside the private income cap – the major concession awarded to Labour rebels over foundation hospitals in 2003. Now it has just been removed without public debate or much parliamentary scrutiny.

And those are just the parts of the Bill which have – relatively speaking – attracted attention.

Passing public health powers to local councils represents one of the greatest reshaping of responsibilities this country has ever seen. And it seems to have just happened. Policies on the fluoridation of water were one of the major parliamentary flashpoints of the passage of the Water Act 2006 (the Conservatives even gave their own side a free vote on the issue). Now it has just been whipped through.

The Health Protection Agency was painfully constructed in its own right as an independent organisation through a piece of well-considered legislation – the Health Protection Agency Act – and it has simply been taken back by ministers, without Parliament having brought to bear any particular level of scrutiny.

The Health and Social Care Act has ripped through vast swathes of primary legislation. It is as broad in scope as any piece of consolidating legislation – but it doesn’t consolidate anything. All of it is new.

And this is the premise of my blog today. I do not believe that the Health and Social Care Act has attracted too much noise. If it had been broken down into its component parts – some 10 bits of separate primary legislation, say – there is no chance it would have all got through. In my view, parts of it have attracted too little (or at least too little high quality) scrutiny.

Fortunate circumstances

So how did it happen that we (nearly) have the Health and Social Care Act? I am struck, not by the headwind that has faced Andrew Lansley – and we should be in no doubt that these are his reforms, rather than the Government’s – but by the extraordinary beneficence of circumstance which has greeted him.

First, the Bill would not have made it to the verge of an Act had it not been for the Coalition. It was the Coalition which has given the Government a stable majority in the Commons, and enough voting feet in the Lords to go through the lobbies. The Liberal Democrats may hate it, but this Act will reach the statute book because of them. A wafer-thin Conservative majority – given the number of Conservative MPs who are either downright hostile to Number 10, openly sceptical about the benefits the reforms would bring, or even privately contemptuous of the role of a taxpayer-funded NHS – would have evaporated as the Bill reached its endgame. With a Conservative-only Government, the Act may never have made it.

Second, this would not have passed were it not for the introduction of fixed-term Parliaments. It was this policy which has gifted Andrew Lansley the extraordinarily long session of this Parliament – a session two years in length. Without that, the Bill would have had to have been introduced in the Lords and carried over in the Commons. The Opposition could so easily have strangled it then, particularly after the pause and further delays to reconsider the duties of the Secretary of State.

Third, the reforms would never even have seen the light of day were the Government not so green when they were first published. Any new item of controversial reform is now pored over by the Government. But, back in the heady days of July 2010, it was just nodded through. By someone in Number 10’s own admission, Downing Street was asleep at the wheel. By the time they realised the political risks they could be running, they were already running them.

Fourth, the permanent civil service – not necessarily within the Department of Health but certainly in the Treasury and in Number 10 – hate the reforms. But when the Government came to power they were too timid – too fearful of their new political masters – to challenge the basis of the reforms. The permanent civil service, particularly inside Number 10, is now much stronger. A reform of this sort could no longer get through without it meeting fierce resistance. But, by the time Downing Street had strengthened itself, it was too late to stop the juggernaut.

Fifth, many of the key moments in the reform process had nothing to do with Parliament. The formation of pathfinder consortia (now commissioning groups) and the agreement, back in the autumn of 2011, which made membership of a clinical commissioning group a condition of the GP contract, had little to do with the Act, but made many of the changes it introduced inevitable. GPs effectively and irrevocably signed up to the reforms long before many of them decided to oppose them.

The role of Andrew Lansley

These five reasons help to explain how the Bill has been (nearly) turned into an Act. But I am not a believer in happy coincidence. And although he is described in many ways now – ‘hapless’, ‘beleaguered’ etc – I do believe there is method to Andrew Lansley’s madness.

Andrew Lansley is a professional policy maker. But more than that, he is a professional legislator, and he is a professional civil servant by training – his early career involved making things, controversial things – happen under the Thatcher Government. He is all of these things first, rather than a politician, which explains the difficulties he has experienced in communicating the reforms, but perhaps also explains his ultimate success in making them happen.

He has also, surprisingly given his low profile before the General Election, been around forever. He was working in the Government when the Conservatives swept to power in 1979. He was in the Cabinet Office in the late 1980s, when Mrs Thatcher was in her prime. He was also the head of policy for the Conservative Party when she was deposed. Amongst the Cabinet, he is second only to Ken Clarke in terms of government experience.

And he has used his expertise and his experience to great effect. For many of the apparently fortuitous coincidences listed above, there are reasons why they have been brought about – in one way or another – directly by Andrew Lansley:

• Liberal Democrat votes. The most critical thing to getting plans off the ground is to ensure you have a majority in the Commons. In retrofitting local democratic accountability onto his original plans – something which he hated before the General Election – he was able to get Coalition support for his proposals. So, yes the Liberal Democrats delivered votes but only, initially, because Andrew Lansley made a tactical retreat (something he is not particularly famed for), implementing a policy he once fiercely opposed.

• Using the honeymoon period. The sheer speed of delivering a White Paper just three months after a General Election was something driven by Andrew Lansley himself. He used his experience of the civil service to channel resources into the development of the White Paper, used his experience of the Whitehall machine to circumnavigate all the relevant Cabinet committees, and his experience of legislation to make sure everything he wanted to achieve was in the first draft. That speed was, as we have seen, critical not only to lulling the Government into a false sense of security – but also to ensuring the Government as a whole was in too deep before Number 10 was capable of (or predisposed to) resisting government departments.

• Confusing opponents. The breadth of topics the legislation covers, which gives rise to the complexity which has so disorientated opponents, is entirely intentional. Now, this confusion may have had the unfortunate side-effect of manifesting itself in the scorn for which the media feel towards Andrew Lansley’s reforms – ‘what on earth is he doing?’ – but it does mean that the reforms themselves have been able to march across the battlefield from one trench to the other under the cover deliberately dense fog. The BMA, for example, spent over a year trying to reconcile support for clinical commissioning with opposition to the competition elements of the Act. By the time this evolved into outright opposition, both sides of the Coalition were bound to the reforms and it was too late. It may not make for a good communication strategy to the public, but complexity was important in getting the reforms off the ground in the first place.

Andrew Lansley’s approach may not have translated into political advantage or public popularity, but it did, ultimately, lead to legislative achievement. The successful passage of one of the largest, most complex and contentious acts of reform – particularly in a hung Parliament – was not something which could have ever been guaranteed. There is no doubt that a healthy dose of luck has allowed its passage. But, as the saying goes, you create your own luck. And that is how the Act has been passed.

The next question is of course, will it ever get repealed? And that is something I shall return to later this week.

And now here is a link to Mike’s blog on the MHP website. Thank you Mike!

ADHD: Transition from Adolescence to Adulthood

The UK Adult ADHD Network (UKAAN) will hold the 3^rd Congress on the 29^th June 2012. The theme will be ‘Transition of ADHD from Adolescence to Adulthood’. The conference will be located in Central London at Savoy Place, 2 Savoy Place, City of London WC2R 0BL

The congress aims to bring important topics on transition in ADHD to a wider audience. The scientific program will include five main sessions, with a panel and audience discussion

Clinical services for ADHD during the transition years from adolescence to adulthood and for those newly diagnosed as adults are developing rapidly. This meeting will address important clinical and scientific questions relating to ADHD and will be relevant to anyone interested in the mental health of people from the adolescent years through to early, middle and later adult life.

For more information and registration details for this important conference please go to the UKAAN website.

Update:Cambridgeshire’s denial of NHS treatment for adults newly diagnosed with ADHD

AADD-UK has not yet received an official response to our letter (see previous post on this subject) regarding the actions taken by NHS Trusts and Commissioning Groups in Cambridgeshire which restrict access to NICE recommended treatments for people who are diagnosed as adults with ADHD.  However, we notice that the new low priority policy for ADHD has been removed from the website for the Cambridgeshire and Peterborough Public Health Network and has been replaced by the words “Please note this policy has been temporarily withdrawn.” You can read this for yourself here.

Now we do realise that this removal could just be coincidence, and may or may not be a good sign.  But Cambridgeshire County Council, who also received a copy of our letter, has made a very positive move.  The Council’s “Adults Wellbeing and Health Overview and Scrutiny Committee” has listed under Agenda Item 7a (for their meeting on 8 February 2012) in ”Committee priorities and work programme 2011/12” the following: “Provision of medication for adults with ADHD: The Chairman has received representations from individuals with ADHD on this issue.  It is proposed that the Chairman and Vice-Chairman, with the support of the Scrutiny and Improvement Officer, follows this up with NHS Cambridgeshire.”

Well done and a big AADD-UK Thank You to Councillor Kevin Reynold, the Chairman of the Committee!

The meeting of the Adults Wellbeing and Health Overview and Scrutiny Committee is open to the public so if you live in Cambridgeshire and have been affected by the low priority policy do please go to the meeting. The meeting is on Wednesday 8 February 2012 at 2:30 PM in the Kreis Viersen Room, Shire Hall, Cambridge.  More details are available on their website here.

And again, Thank You Councillor Reynold!

AADD-UK’s response to Cambridgeshire’s denial of NHS treatment for adults newly diagnosed with ADHD

Three actions by NHS Trusts and Commissioning Groups in Cambridgeshire are restricting access to NICE recommended treatments for people who are diagnosed as adults with ADHD.

First, the long-standing & pioneering adult ADHD clinic at Addenbrooke’s in Cambridge has been forced to close due to lack of NHS funding. Secondly, NHS Cambridgeshire and Peterborough Public Health Network recently implemented a “low priority policy” for prescribing Methylphenidate, Atomoxetine, and Dexamfetamine for adults that were not diagnosed by the NHS as children or adolescents. And thirdly, in July 2011 the Cambridgeshire Joint Prescribing Group designated these 3 medications (as prescribed for adults who were not diagnosed as children by the NHS) as Double Red. The Double Red classification means that they will not fund the prescribing of these 3 medications for adults who were not diagnosed as children or adolescents by the NHS.

AADD-UK has completed a scrutiny of the briefing paper in which the new “low priority policy” was proposed and have now written to Sir Neil McKay of NHS Midlands and East (and 8 others) requesting that the decision to implement the new policy be reviewed, and also that we be provided with written answers to our questions. With the letter we have enclosed copies of the briefing paper, the new policy, as well as a patient information leaflet which purports to explain the new policy. We have inserted our comments, recommendations, and questions into these documents. You can view the letter and documents at the following links:

1. AADD-UK letter to NHS Midlands and East

2. Briefing Paper for proposal for a low priority policy

3. Low Priority Policy

4. Patient Information Leaflet

Recommendations for people living in Cambridgeshire

For those of you who have been affected by this situation, we strongly urge you to file complaints with the Patient Advice and Liaison Service at the following:

1. NHS Cambridge: Freephone: 0800 279 2535 or 01223 725 588 or by email c-pct.pals@nhs.net or write to them at Patient Advice and Liaison Service, Lockton House, Clarendon Road, Cambridge CB2 8FH

2. NHS Peterborough: Tel: 01733 776283 or by email PALSTeam@peterboroughpct.nhs.uk, or in writing to PALS, City Care Centre, Thorpe Road, Peterborough PE3 6DB.

Also, if any of you would like to help the local ADHD support group fight this, please contact Rebecca Champ. You will find her email address and phone number on her website: ADDventure Within.

Parent of a child with ADHD? Have a free car under £1.5bn taxpayer-funded scheme

The Daily Mail is carrying a story, last updated at 12:08 am today (11th October 2011) which states that “Iain Duncan Smith has ordered a crackdown on thousands of families with youngsters diagnosed with ‘naughty child syndrome’ who get new cars paid for by the state.”  Since this article targets people with ADHD and it is inflammatory, AADD-UK has written to the Right Honourable Iain Duncan Smith seeking clarification as follows:

Dear Mr Duncan Smith,

The Daily Mail, yesterday Monday 10th October 2011, reported in their article titled “Parent of a child with ADHD? Have a free car under £1.5bn taxpayer-funded scheme” that you “ordered a crackdown on thousands of families with youngsters diagnosed with ‘naughty child syndrome’ who get new cars paid for by the state” and also that you were “enraged to be told initially by [your] department that there were no precise numbers on how many people with the condition received free cars.”  

The complete article can be found here: http://www.dailymail.co.uk/news/article-2046924/Parent-child-ADHD-Have-free-car-1-5bn-taxpayer-funded-scheme.html 

Since we have not yet been able to find where you have publicly attacked people with ADHD and their families in the past, we are wondering if your position is being reported accurately by the Daily Mail. If you have not been accurately represented by the Daily Mail, then please let us know and we will report this article to the Press Complaints Commission. 

If however, the Daily Mail’s account is accurate, we would like to remind you that since ADHD has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities it is therefore a real disability and a protected characteristic under the Equality Act 2010. Targeting people with a protected characteristic could potentially place yourself and your department in breach of the Equality Act, and in the event that the Daily Mail’s account is accurate, we will be seeking advice about this. 

I look forward to hearing from you and to receiving clarification. 

Kind regards,

We’ll let you know what happens!

Bristol Adult ADHD Support Group Meeting (and Bedford)

The Bristol Adult ADHD Support Group will be meeting this Thursday, 12th May 2011 from 7 to 9 pm at The Pierian Centre, 27 Portland Square, Bristol.  For more information see our page here.

And there’s a meeting in Bedford, too. It’s at 4:30 at  the usual place – see post (much) further down for dtails…

1st International Congress for the European Network Adult ADHD

22nd – 23rd September 2011

Location: Central London