Health and Social Care Act 2012 (Consequential Amendments) (No. 2) Order 2013

Earl Howe Excerpts

Thursday 25th July 2013 Lords Chamber

Moved by

[Earl Howe]

That the draft Order laid before the House on 5 July be approved.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, we had many debates in this House on the Health and Social Care Act 2012 during its passage as a Bill last Session. In this Session we have also debated some significant items of secondary legislation that put in place key elements of the new system, including the regulations that we have just debated.

This draft order, however, is very different from those instruments. It is short, and it raises no new issues of substance. Since it seeks to amend primary legislation, it is right and proper that it is subject to affirmative resolution but it is made under a narrow power to make provision in consequence of the Act. I cannot claim that the amendments it makes are of significant interest. They are minor adjustments, generally needed as a direct consequence of the Health and Social Care Act 2012, which I shall now refer to as the 2012 Act. They help to keep the statute book up-to-date and coherent, but they involve no new policies. Consistently with this, neither the Joint Committee on Statutory Instruments nor the Secondary Legislation Scrutiny Committee has seen a need to draw special attention to the draft order.

Before I explain what the draft order does, it may be helpful to start with a very brief reminder of the relevant provisions of the 2012 Act. That Act made a number of changes to the architecture of the National Health Service in England. Before the 2012 Act came into force on 1 April this year, the functions of commissioning and providing health services were conferred by legislation on the Secretary of State and were delegated by him to bodies such as primary care trusts. The Act, however, now gives the function of commissioning health services direct to the NHS Commissioning Board—also known as NHS England—and to clinical commissioning groups; while primary care trusts have been abolished. The Secretary of State continues to be under a duty to promote a comprehensive health service. He has ministerial accountability to Parliament for the health service. He is under new duties to keep under review the effective exercise of functions by the national-level bodies, such as the NHS Commissioning Board, and to report annually on the performance of the health service. That is the framework established by the 2012 Act.

I turn now to the individual amendments made by the draft order. The first amendment is to the Disabled Persons (Services, Consultation and Representation) Act 1986. The 1986 Act creates a requirement to assess the needs of people who are discharged from hospital after at least six months’ inpatient treatment for mental disorder. Section 7 of the Act sets out the services to which such an assessment must relate. Schedule 5 to the 2012 Act amended Section 7 of the 1986 Act to reflect, for example, the abolition of primary care trusts and the fact that it is clinical commissioning groups which now have to carry out the assessments in England.

However, that schedule did not update the reference to the services to which the assessment should relate. These are currently described as services that the Secretary of State is under a duty to provide under the NHS Act 2006. The order removes that reference, and updates it to take account of the changes in responsibility for commissioning and providing health services in England that were made by the 2012 Act. In making that change, we are able also to refer correctly to the bodies that provide services for the purposes of the Scottish and Welsh health services, and to the Acts under which they do so.

The second amendment made by the draft order is to the Community Care (Delayed Discharges etc.) Act 2003. That Act puts in place arrangements to ensure the safe and timely discharge of patients from hospital. Under the 2003 Act, the responsible NHS body is required in certain cases to issue an assessment or discharge notice, and the relevant local authority is required to assess the patient and put in place a support package by the named day. Schedule 5 to the 2012 Act made some amendments to the 2003 Act, but not those required to ensure that the arrangements continue to apply to NHS patients in independent hospitals. The draft order therefore makes the necessary amendments by adding NHS England and clinical commissioning groups to the definition of “NHS body” in Section 1 of the Act. This puts those bodies under a duty to issue the relevant notices in relation to patients discharged from independent hospitals commissioned by them.

Lastly, the draft order amends Section 256 of the National Health Service Act 2006. That section deals with the powers of certain NHS bodies to make payments towards expenditure on community services. Schedule 4 to the 2012 Act replaced the references to primary care trusts in the main body of Section 256 with references to the NHS Commissioning Board and to clinical commissioning groups, but unfortunately it did not amend the reference to primary care trusts in the cross-heading to the section. The draft order corrects that oversight.

In conclusion, I hope that I have demonstrated that the draft order contains changes that are consequential on the Act. It makes some minor but necessary changes to keep the statute book coherent and up to date. I commend the draft order to the House. I beg to move.

Motion agreed.