UK: Health And Social Care Bill

Last Updated: 16 February 2011
Article by Nick Maltby

On 19 January 2011, the Government introduced the Health and Social Care Bill to the House of Commons. The Bill received its second reading on 31 January. The Bill is intended to give effect to the policies requiring primary legislation that were set out in the July 2010 White Paper "Equity and Excellence: Liberating the NHS".

Whether the Bill is the most significant piece of legislation concerning the National Health Service since the National Health Service Act 1946 or simply another in a long line of NHS reforms punctuated by the National Health Service and Community Care Act 1990 (NHS Trusts and GP fund holding), the Health Act 1999 (PCTs and an end to GP fund holding) and the Health and Social Care (Community Health and Standards) Act 2003 (Foundation Trusts) remains to be determined.


The main elements of the Bill are as follows:

  • The creation of an NHS Commissioning Board (clause 5), the creation of Commissioning Consortia (clause 6) and the abolition of Strategic Health Authorities and Primary Care Trusts (clauses 28 and 29)
  • New provisions on the regulation of health services including new powers for Monitor (clause 51ff), a new licensing regime (clause 74ff), provisions on pricing (clause 103ff) and a new freedom for Foundation Trusts (clause 136ff)
  • The creation of Healthwatch England (clause 166) and the establishment of Health and Wellbeing Boards (clause 178ff)
  • The abolition of the General Social Care Council and the taking over by the renamed Health and Care Professions Council of its functions (clause 196ff)


At the heart of the Bill is the shift of responsibility for commissioning from Primary Care Trusts to an NHS Commissioning Board overseeing Commissioning Consortia regulated by it. The NHS Commissioning Board will oversee the Consortia. At the start of each financial year the Secretary of State will publish the "mandate" setting out the objectives of the Board for that financial year, which the Board must then seek to achieve, and the amount of money allotted to the Board, which the Board is expected to work within. The Board has a number of general duties including to improve the quality of health services and to innovate. The Board will publish a Business Plan at the start of each year and an annual report at the end. The Secretary of State may direct the Board if he considers it has failed to discharge any of its functions.

Commissioning Consortia will be bodies corporate with the power to enter into agreements and to acquire and dispose of property. They will have a constitution, which may be prescribed by regulation. All general practitioners will be obliged to be members of at least one Consortium. They will have an accountable officer and may have trustees and will be subject to duties enforceable by the Board, including to improve quality and to reduce inequalities. The Bill provides for Consortia to exercise their functions on behalf of other Consortia and with Local Health Boards. It is envisaged that the Board will issue guidance on such matters as payment and the discharge of Consortia' commissioning functions that the Consortia will have to have regard to. At the start of each year each Consortium must issue a plan setting out how it proposes to exercise its functions and at the end of each year it must produce a report showing how it has discharged its functions. The Board will conduct a performance assessment of each Consortium in respect of each financial year, which may lead to intervention.

The Bill contains provisions for the transfer of staff and property in connection with the establishment or abolition of a body. While both the Board and the Consortia will have power to acquire and dispose of property and employ people, given the lack of contiguity between the Consortia and the PCTs they replace, the application of TUPE will be interesting and there will be difficult issues to resolve.

At first glance, these are weighty provisions rather than ones that cut GPs free. Consortia are heavily regulated health care bodies with powers and duties similar to those of the organisations they replace. The work of the NHS Commissioning Board will be arduous especially if funds are short. One is reminded of the aftermath of the Health Act 1999 when a large number of PCTs were created, which were later slimmed down through merger. There is little overt recognition in the new provision of the value of the experience of clinicians within Foundation Trusts in commissioning services. Whether a similar effect might have been achieved by a re-organisation of the board membership of PCTs to include a majority of GPs and clinicians must be asked.

There is also the question as to how Consortia might go about procuring services. While contracts between Consortia and Foundation Trusts are deemed to be "NHS Contracts", the implications of the new regulated market for health care services is that any licensed provider will be given the opportunity to bid to provide a service. While the procurement rules have been pushing in this direction for some while, this has always been resisted. However, the practical need to let other bodies in is likely to lead to a shake up. On the other hand, with some of the larger FTs providing more than 1000 services, it is far from clear how this can work.

Regulation of health services

While the changes to commissioning organisation may be less radical in practice than trailed, the opening up of the NHS market to third parties means a thorough review of how health care is regulated. There are several elements to this:

  1. Monitor's role will be changed to one of economic regulator of the whole of health care and with a diminished role in respect of Foundation Trusts.
  2. Anyone who provides a health care service will in future need to be licensed by Monitor. NHS Foundation Trusts will be treated as being duly licensed. Monitor will publish the conditions that apply to each licence. Monitor's powers will include enforcement powers in relation to the new licensing regime.
  3. There will be a degree of price regulation: Monitor will be responsible for publishing a national tariff for health care services, which will set out how the price for each service is to be determined. It is unclear at this stage to what extent the prices will be maximum prices (so competition can take place below the ceiling) or fixed per unit prices.
  4. Foundation Trusts will be substantially freed from regulation by Monitor and will be given new freedoms including the abolition of the private patients cap allowing FTs to compete with the private sector. NHS Trusts will cease to exist from 1 April 2014 with all NHS Trusts becoming Foundation Trusts. One aspect of this, which may prove problematic for FTs pursuing PFIs is whether the Secretary of State will continue to provide a Deed of Safeguard: the Bill's direction of travel suggests he will not.
  5. Health care services will be subject to regulation under the Competition Act 1998 to reflect the new-found contestability of the market, raising concerns that assistance to Foundation Trusts may constitute state aid (hence the shift to loans).

One aspect of contestability is that providers may fail. Part 6 of the Bill provides for the introduction of an insolvency regime for Foundation Trusts based on the Insolvency Act 1986 and the Companies Act 2006. The health special administration regime is also introduced as a process to ensure the continuity of services.
The private sector has been waiting for the dawn of an independent market in health care provision for some time.

While much remains to be resolved, it does appear that we may have finally reached this point. What is likely to follow will be unsettling for some, such as Foundation Trusts, and be the source of opportunities for others. However, it should be noted this will remain a heavily regulated market where the scope for private equity to invest will remain limited. As was seen in Wyre Forest in 2001 with the election of Richard Taylor, Governments of any hue let local hospitals fail at their peril.


While the shift to Consortia provides some of the Bill's local credentials (albeit in a system which is strongly driven from the centre), the Bill provides for the establishment of a Healthwatch England committee of the Care Quality Commission and for Local Healthwatch organisations in the area of each local authority to enhance this theme.

The committee will exercise certain functions on behalf of the Commission including to provide the Secretary of State, the NHS Commissioning Board, Monitor and local authorities with the views of people who use health and social care services and the views of Local Healthwatch organisations on the standard of the provision of health and social care. The committee will produce an annual report, which will be laid before Parliament. At the same time, local authorities must establish a Health and Wellbeing Board for their areas, which will include representatives of the Local Healthwatch Organisation and the local Commissioning Consortia. One of the functions of the Boards will be to encourage persons who arrange the provision of health and social care to work together in an integrated manner. Given the changes envisaged by the Localism Bill, these changes go less far than might have been hoped as there might have been a role for local authorities as commissioners to commission health too (rather than simply have the Consortia turn up to their meetings). A democratic deficit in health therefore remains.

The regulation of social care

The Bill abolishes the General Social Care Council and makes the Health Professions Council responsible for the regulation of social workers in England with a corresponding name change to the Health and Care Professions Council.

Costs of implementation

The explanatory notes issued with the Bill give a total cost of the changes to be of the order of £1.4bn. Savings, however, are expected to be in the order of £1.7bn p.a from 2014/15 giving a cost saving of £13.6bn over the decade from 2010/11 to 2019/20 (although it is unclear how these numbers are derived).

Entry into force

No programme has yet been announced for the Bill but it seems unlikely to become law before November at the earliest. It is currently in the Committee Stage in the House of Commons following the Second Reading on 31 January. It has been announced that the membership of the Health and Social Care Bill Committee comprise as chairs, Jim Hood and Mike Hancock and as members, Debbie Abrahams, Kevin Barron, Tom Blenkinsop, Steve Brine, Simon Burns, Paul Burstow, Dan Byles, Stephen Crabb, Nick de Bois, Margot James, Liz Kendall, Jeremy Lefroy, Nicky Morgan, Grahame M. Morris, Dr Daniel Poulter, John Pugh, Jim Shannon, Owen Smith, Anna Soubry, Julian Sturdy, Emily Thornberry, Karl Turner, Derek Twigg and Phil Wilson.

The Public Bill Committee stage is due to end by 31 March. It seems likely from this that the Bill will go to the Lords in May. We will be issuing further Briefings on topics of interest as the Bill progresses.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.