[Ed Hammond]

Section 175 relates to health scrutiny and is below...

175 Scrutiny functions of local authorities

(1) Section 244 of the National Health Service Act 2006 is amended as follows.
(2) In subsection (2) -
(a) omit "an overview and scrutiny committee of",
(b) for "the committee" (in each place where it occurs) substitute "the
authority",
© for "local NHS bodies" (in each place where it occurs) substitute
"relevant NHS bodies or relevant NHS providers",
(d) for "local NHS body" (in each place where it occurs except paragraph
(f)) substitute "relevant NHS body or relevant NHS provider",
(e) omit the words in brackets in paragraph ©, and
(f) in subsection (f) for "any officer of a local NHS body" substitute "any
member or employee of a relevant NHS body, or a relevant NHS
provider or member or employee of a relevant NHS provider,".
(3) After subsection (2) insert -
"(2ZA) If (by virtue of subsection (2)©) regulations make provision as to
matters on which relevant NHS bodies or relevant NHS providers must
consult the authority, the regulations may also make provision -
(a) as to circumstances in which the authority may refer any of
those matters to the Secretary of State, the regulator or the
Board;
(b) conferring powers on the Secretary of State to give directions to
the Board in relation to a matter referred to the Secretary of State
by virtue of regulations under paragraph (a);
© conferring powers on the Board to give directions to a
commissioning consortium in relation to a matter so referred;
(d) conferring powers on the Board to give directions to a
commissioning consortium in relation to a matter referred to
the Board by virtue of regulations under paragraph (a);
(e) conferring powers on the Secretary of State to give directions to
the Board as to the exercise of its powers by virtue of regulations
under paragraph © or (d).
(2ZB) The powers that may be conferred under any of paragraphs (b) to (d) of
subsection (2ZA) include powers to require the person to whom the
direction is given -
(a) to consult (or consult further) with the authority on the matter
in question;
(b) to determine the matter in a particular way;
© to take, or not to take, any other steps in relation to the matter.
148
(2ZC) If (by virtue of subsection (2ZA)(a)) regulations make provision for an
authority to refer a matter to the Secretary of State, the regulator or the
Board, the regulations may also provide for any provision of section
101 of the Local Government Act 1972 -
(a) not to apply in relation to the discharge by the authority of that
function, or
(b) to apply in relation to its discharge with such modifications as
may be prescribed.
(2ZD) Regulations under this section may authorise a local authority to
arrange for its functions under the regulations to be discharged by an
overview and scrutiny committee of the authority."
(4) For subsection (3) substitute -
"(3) For the purposes of subsections (2) and (2ZA) -
"relevant NHS body" means an NHS body other than a Special
Health Authority which is prescribed for those purposes in
relation to the authority;
"relevant NHS provider" means a body or person which provides
services under this Act in pursuance of arrangements made by
the Board or a commissioning consortium and is prescribed, or
is of a description prescribed, for those purposes in relation to
the authority."
(5) After subsection (3) insert -
"(3A) In subsection (2)(f) the reference to a member -
(a) in relation to an NHS foundation trust, is to be read as a
reference to a director of the trust, and
(b) in relation to a member that is a body includes a reference to any
member or employee of the body."
(6) For the heading to section 244 substitute "Review and scrutiny by local
authorities".
(7) For the title to Chapter 3 of Part 12 of the National Health Service Act 2006
substitute "Review and scrutiny by local authorities".
(8) In section 9F of the Local Government Act 2000 (overview and scrutiny
committees) (as inserted by Schedule 2 to the Localism Act 2011) -
(a) omit subsection (2)(f),
(b) omit subsection (3)(a) and (b), and
© in subsection (5) omit the word "or" following paragraph (b) and after
paragraph © insert "or
(d) any functions which may be conferred on it by virtue of
regulations under section 244(2ZD) of the National
Health Service Act 2006 (local authority scrutiny of
health matters)."
Make of that what you will.

It comes just after the section on HealthWatch which is also worth a read.

[Dean Gillon]

As far as I can see, it's generally in line with what we knew beforehand. The scrutiny role will be passed to local authorities, presumably in order to fit in with the Localism Bill, although it's explicit that councils can then pass the function on to OSCs.

The one area that might be of concern is that the scrutiny powers seem to extend to "relevant NHS bodies or relevant NHS providers". This seems to row back from the Next Steps document that extended scrutiny to include commissioning consortia and any provider who received NHS funds, including independent providers. I'm not sure if commissioning consortia would be classed as a "relevant NHS body" given that they're obviously led by GPs. Similarly, is scrutiny extended to GP-provided services or not? There also doesn't seem to be anything about scrutiny of Health and Wellbeing Boards.

The referral powers seem to be subject to further guidance, although it is very tricky to understand. I might be reading the entire thing incorrectly anyway - I'm notoriously bad at reading legislation. Is there a lawyer in the house?

[tim gilling]

Thanks Ed and Dean - I am digging out all the Acts to see how the amendments affect the current position

2nd reading is 31 January

[Sunita Sharma]

Dean Gillon Wrote:The one area that might be of concern is that the scrutiny powers seem to extend to "relevant NHS bodies or relevant NHS providers". This seems to row back from the Next Steps document that extended scrutiny to include commissioning consortia and any provider who received NHS funds, including independent providers. I'm not sure if commissioning consortia would be classed as a "relevant NHS body" given that they're obviously led by GPs. Similarly, is scrutiny extended to GP-provided services or not? There also doesn't seem to be anything about scrutiny of Health and Wellbeing Boards.

The referral powers seem to be subject to further guidance, although it is very tricky to understand. I might be reading the entire thing incorrectly anyway - I'm notoriously bad at reading legislation. Is there a lawyer in the house?

Tim, Dean,

See page 148 of the Bill, (4) which starts for subsection (3) substitute...

I have read commissioning consortia within the definintion of "NHS Body"? because the definition of NHS provider which follows and who has made the arrangements includes commissioning consortia. However this should not be left to interpretation and scrutiny's role with GP commissioning consortia should be clearly spelt out.

I've also read this section to mean that scrutiny is extended to GP commissioned services and that Board refers to any NHS Board including Health and Well being Boards.

Sunita

[tim gilling]

Thanks Dean and Sunita

agreed, we need to ensure there is clarity that scrutiny powers cover all commissioners and providers of NHS services and social care services - including GP consortia, NHS Commissioning Board and Health and well-being Board. Also that the powers around referral of substantial changes are not watered down through the need for full council approval (as Execs who may co-ordinate plans for change through agreeing commissioning plans in health and wellbeing boards may put political pressure on councillors not to challenge in council)

[Steve Sienkiewicz]

Clause 184 of the Bill - Care Trusts

Quote from the explanation document - 'This clause amends Section 77 of the NHS Act to make it possible for NHS foundation trusts or commissioning consortia and local authorities to form Care Trusts, if they decided locally that this was the best way to meet the needs of their local populations. The clause also makes amendments that abolish the direct role of the Secretary of State in the process of forming or disbanding a Care Trust'.

This appears, on the face of it, to be quite a far reaching proposal. Colleagues views on the interpretation and implications would be welcome. it would appear that a local authority will in future be able to exercise a huge amount of control over the setting up and running of a Care Trust, if it so wishes.

Also, on a different topic, I've had a quick look through the Impact Assessment document relating to Healthwatch functions. It mentions PALS being subsumed into Healthwatch, but doesn't appear to be clear on this. Perhaps I'm interpreting it wrong - it looks as if PCT PALS role will be undertaken by Healthwatch but I'm not sure if that also applies to other NHS Trusts PALS, or whether they will remain?

[tim gilling]

Thanks to those who have submitted comments on the Bill - although I can't answer all the points, they are helpful to us in preparing a briefing and putting together suggested amendments ahead of the 2nd reading which is on Monday - there is niot much time!

I have tried to pick up the main points on scrutiny, see below. I will move on the Healthwatch and other aspects over the next couple of days. Much of the impact on scrutiny will be reserved for regulations but it is important to get some principles clarified now:

Part 5 chapter 2
Scrutiny

Section 175
This section amends Section 244 of the NHS Act 2006 (relating to consultation of OSCs by the NHS around proposals for substantial service changes)

The effect of 175 (1) and (2) is to require the local authority itself to be consulted rather than an overview and scrutiny committee. This reflects the intention in the Localism Bill for councils to be able to choose different political management arrangements - which might not include overview and scrutiny committees. We are promoting an amendment to the Localism Bill to make it a requirement for there to be at least one OSC, even where councils operate a 'committee system'. If that amendment is successful we would seek to amend section 175 (1) and (2) to maintain the independence of OSCs in the consultation process - for example "delete 175 (2)(a) and in (2)(b) insert 'where the authority operates an overview and scrutiny committee as part of its executive or 'committee system' arrangements, the committee'." And insert in 175 (3) ...regulations under this section may also require an authority that operates an overview and scrutiny committee as part of its executive or 'committee system' arrangements to arrange for its functions under the regulations to be discharged by an overview and scrutiny committee'. To some extent this may be covered by the new (2ZD), but needs to be made more specific.

In section 175, 'relevant NHS body' means an NHS body other than a special health authority which is prescribed for those purposes in relation to the authority. Relevant NHS provider means a body or person which provides services under the Act in pursuance of arrangements made by the Board (NHS Commissioning Board) or a commissioning consortia and is prescribed or is of a description prescribed for the purposes in relation to the authority. We will seek clarity about how and when designation of various bodies and providers will take place. We will be seeking to ensure that the NHS Commissioning Board, commissioning consortia are included with providers in the requirement to consult on substantial service changes (through OSCs or otherwise - see comments above about the Localism Bill). This is implied in 175 (3) (a) to (e) but needs to be specifically stated through designation.

The matters on which the authority (or OSC, if our amendments are successful) must be consulted are to be covered in the regulation making power in 175 (3). These regulations could include circumstances in which proposals could be referred to the Secretary of State, the regulator (Monitor) or the Board (NHS Commissioning Board) and the capacity for the Secretary of State or the Board to give further directions in relation to matters referred. The powers to give directions include - 'to consult or to consult further, to determine the matter in a particular way or to take or not take any other steps'. The regulations may also make provisions in relation to section 101 LG Act 1972. This is an area to watch as it may impact on the capacity for authorise to delegate their functions.

As well as circumstances where authorities (or OSCs - see amendments above) can make referrals about proposals for service changes, we will explore an amendment to provide the possibility for referrals where authorities and partner commissioning consortia are considered not to have had due regard to needs assessments or health and well-being strategies when exercising their functions.
Section 176
Joint strategic needs assement

Clarity will be sort about whether separate needs assessments and strategies are required for each separate partner commissioning consortia area (where there is more than consortia in a local authority area). This is implied in 176 (2) and 177 (5) but needs clarity.
Amend 176 (6) to read '(8A) In preparing an assessment under this section, the responsible local authority or a partner commissioing consortium must consult relevant district councils in the area covered by the assessment and any other person, groups of people or representatives of persons or groups or persons it thinks approriate'.

Section 178
Health and Well-being Boards

We will seek an amendment to section 178 (2) to add 'relevant district councils' to the list of those persons or organisations that must constitute the membership of Health and Well-being Boards.

We will seek an amendment to clarify the extent to which Health and Well-being Boards must provide information, attend meetings and respond to recommendations from OSCs.

Health and Well-Being Boards will be committees of local authorities. Some colleagues have raised the issue of political balance requirements for LA committees and other matters (for example access to information). Section 178 (12) is a regulation making power that could affect the extent which Boards are covered by Acts covering LA committees. We will seek to have included in the regulations a clear requirement for Health and Well-Being Boards to be open and transparent in their work.

We will seek an amendment to Section 180 (3) to include OSCs of authorities with executive arrangements or (if our other amendment is successful) the 'committee system' to also have powers to give a local authority an opinion on whether the authority is discharging its duty under section 116B (duty to have regard to assessments and strategies).

Schedule 4 part 1 part 11
Public involvement and scrutiny

We will seek clarity about why special health authorities are removed from the requirements to involve users and seek to have them included.

[tim gilling]

Some more thoughts on the Bill - this time about Healthwatch England and Local healthwatch:

Part 5 Chapter 1
Healthwatch england and local healthwatch

Healthwatch England is to be appointed in line with regulations as a committee of the Care Quality Commission. 166 (4) gives Healthwatch England stautory functions to give advice and assistance to local Healthwatch organisations about arrangements for local Healthwatch functions and carrying out local Healthwatch activities.

166 (4) - new section 45 A (4) - add Care Quality Commission to the list of persons to whom the Healthwatch England committee can give advice and therefore, under subsection (5), be required to respond in writing. This amendment could also be achieved by adding words to 166 (2) - new 1B or by adding words to new 45A (6).

This would go some way to confirming the independence of the Healthwatch England committee within the CQC and also allow it to give advice to the Secretary of State, the NHS Commissioning Board, Monitor and English authorities.

There are to be Local Healthwatch organisations for each local authority area. It is not clear what the definition of 'local authority' is for these purposes, although it maybe that the clause relies on the definition within the 2007 Act which this clause amends. We will seek clarification.

168 - amend (3) to delete (a) - advice and information about access to local care services and about choices that may be made. Reorder the subsections and add new suggested clause (h) - 'as well as the functions in (e) to (g) above local healthwatch organisations may provided advice and information about access to local care services and about choices that may be made with respect to aspects of those services'. This will have the affect of focusing Local Healthwatch functions on key activities and giving discretion of additional activities to be carried out if appropriate.

169 (3) implies that authorities will have discretion whether to make arrangements with Hosts or directly with local Healthwatch organisations.

169 (6) introduces a requirement for a local authority to publish a report about the effective operation and value for money of the local Healthwatch arrangements in its area. It is not clear what information or consultations the local authority will need to undertake to reach a judgement on these issues. It may be appropriate to add a section - for example '7C before preparing this report, the authority must consider such information and consult such organisations and persons as it considers appropriate, including an overview and scrutiny committee where operated as part of executive or 'committee system' arrangements. The authority must include in the report the nature of the information considered and the names of the organisations and persons consulted'.

Section 170 introduces a requirement for local authorities to make appropriate arrangements for the provision of independent advocacy services. Subsection (3) allows for these to be provided by local healthwatch or arranged through local healthwatch but local authorities are not compelled to commission advocacy services through local healthwatch. Where they are provided by or through local healthwatch they will fall within the scope of the activities that the authority needs to report on in relation to effectiveness and value for money. There may be regulations requiring people providing these services to have insurance cover.

Section 171 (9) to (12) deals with referrals of social care matters. The wording of the Bill does not take into account that some councils may not have overview and scrutiny committees (under the Localism Bill). Suggested amending this to add another subsection and re-order the numbering - for example, 'subsections (2) to (5) apply where a local Healthwatch organisation refers a matter relating to social care services to an overview and scrutiny committee of a local authority (where the authority operates overview and scrutiny committees as part of its executive or 'committee system' arrangements) or to the authority itself where overview and scrutiny committees are not operated'.Throughout the remainder of the subsections - refer to 'the committee or the authority' throughout.

Section 172 makes provisions for local authorities to apply to the Secretary of State to dissolve local Healthwatch Organisations. The wording is not clear about whether the application needs the agreement of the Healthwatch England Committee before being submitted. We will seek clarification.