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EXPOSED- LIBERAL DEMOCRAT RESPONSE TO INDEPENDENT NHS LEGAL ADVICE

EXPOSED- LIBERAL DEMOCRAT RESPONSE TO INDEPENDENT NHS LEGAL ADVICE

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Published by 38Degrees
We have received a Liberal Democrat document by Paul Burstow MP – the Liberal Democrat Minister for Care Services. In the document Paul Burstow tells Liberal Democrat MPs how to respond to 38 Degrees’s independent legal advice which was published earlier this week.

Unfortunately this document a number of errors and misrepresentations of the independent legal advice obtained by 38 Degrees.

We have published the full document – along with some draft comments shown in red below. If you have comments or corrections do share them below in comments.

It’s worth pointing out that at many points the document says “38 Degrees” when it appears it should say something like “the independent legal advice paid for by 38 Degrees members”.
We have received a Liberal Democrat document by Paul Burstow MP – the Liberal Democrat Minister for Care Services. In the document Paul Burstow tells Liberal Democrat MPs how to respond to 38 Degrees’s independent legal advice which was published earlier this week.

Unfortunately this document a number of errors and misrepresentations of the independent legal advice obtained by 38 Degrees.

We have published the full document – along with some draft comments shown in red below. If you have comments or corrections do share them below in comments.

It’s worth pointing out that at many points the document says “38 Degrees” when it appears it should say something like “the independent legal advice paid for by 38 Degrees members”.

More info:

Categories:Types, Business/Law
Published by: 38Degrees on Sep 02, 2011
Copyright:Attribution Non-commercial

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09/05/2011

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 INTRODUCTIONWe have received a Liberal Democrat document by Paul Burstow MP – the Liberal DemocratMinister for Care Services. In the document Paul Burstow tells Liberal Democrat MPs how to respondto 38 Degrees’s independent legal advice which was published earlier this week. Unfortunately thisdocument a number of errors and misrepresentations of the independent legal advice obtained by38 Degrees.We have published the full document –along with some draft comments shown inredbelow.If you have comments or corrections do share them below in comments. It’s worth pointing out thatat many points the document says “38 Degrees” when it appears it should say something like “theindependent legal advice paid for by 38 Degrees members”. Some Lib Dem MPs are now sending Paul Burstow’s document to their constituents. If you’vereceived a similar email from your Lib Dem MP you can share this rebuttal by emailing them here. THE INTERNAL DOCUMENTThank you for your email regarding the Health and Social Care Bill and the concerns raised by 38Degrees. Altering the Secretary of State’s duties 38 Degrees claim the Health Secretary will be able to "wash his hands" of the NHS because the Billgives him the duty to "secure provision" of a comprehensive health service not "to provide". 
 
This is misleading. Our independent legal advice found that that the bill removes the “duty to provide”services from the Secretary of State and places it instead on the unaccountable clinicalcommissioning groups (and then only as a duty to “arrange provision”).This shift has a further consequence which is to create severance between the duty to promote acomprehensive health service and the duty to provide services since, under the Bill, the former will beheld by the Secretary of State and the latter by the groups.In addition, the Bill introduces a “hands off” clause that prevents the Secretary of State from steppingin unless it is essential.Each of the above issues was explained in detail in the legal advice obtained by 38 Degrees. This ishow 38 Degrees believes the Secretary of State washes his hands of the NHS and is not a concernthat has been addressed.
The change is necessary to reflect the establishment of the NHS Commissioning Board, designed toprotect the NHS from political tinkering. But it is wrong to suggest that this means the Secretary of State could “wash his hands” of the NHS.The establishment of the NHS Commissioning board as independent of the Secretary of State is notin the coalition programme. It is a Conservative policy (not Coalition policy). In contrast to theposition of independence of commissioning groups and the Board in the Bill, the Liberal Democratmanifesto policy is to have commissioners directly accountable politically to local people by virtue of being elected. (You can see the manifesto here:http://network.libdems.org.uk/manifesto2010/libdem_manifesto_2010.pdf ) The Coalition Agreement makes no mention of independence of the Board. 
 
 Many people feel that the best way for politicians to avoid tinkering is by showing restraint - not byremoving duties. The Government has abolished any general power of the Secretary of State to issuedirections or to delegate powers to commissioning groups, and has imposed a duty on itself and theBoard to allow Commissioning Groups to be autonomous (the hands off clause).This is not in the Coalition programme, which instead proposed having councillors on thecommissioning groups. The Bill is absolutely clear that the Secretary of State remains politically and legally accountable forhealth services. This contradicts our independent legal advice – if this is true it would be useful for MPs to explain indetail how the legal advice is incorrect.The Secretary of State has duties to:· Act to secure provision of a comprehensive health service designed to secure improvements in thephysical and mental health of the population and in the prevention and diagnosis of illness· Act to secure continuous improvement in the quality (effectiveness, safety and patient experience)of health services (new)· Report annually on the performance of the health service (clause 49). (new)· Ensure these services are provided free of charge (except where specified eg prescription charges)· Tackle health inequalities (new)· Promote research and the use of evidence learned from research· Publish and lay before Parliament a mandate for the NHS Commissioning Board (new)
It is worth noting that it is not mentioned here that the new plans would force the Secretary of State for Health to maximise the autonomy of new unaccountable quangos that will be set up (the clinical commissioning groups and the NHS Commissioning board).
The Secretary of State also retains responsibility for securing the provision of services through hispowers to set objectives for commissioners.
This seems to be a mistake. The bill says that the Secretary of State must “use the powers under thisact so as health services are secured”.
This is categorically not an ideologically driven move to stop public provision of health services oreven to reduce the proportion of publicly provided health services. In fact the Bill would make itillegal for the Secretary of State, Monitor or the NHS Commissioning Board to act deliberately toreduce the proportion of public sector provision.The Secretary of State has the power to intervene and take over the NHS in the event of significantfailure, or if the Board fails to discharge its functions properly or at all. The Secretary of State alsohas the power to establish new NHS Trusts or Foundation Trusts – which means that new publicsector providers can be created if needed.
 
The Secretary of State will also continue to remain legally liable for the exercise of his functions. Thismeans that he could be the subject of a claim for judicial review by an affected member of the publicif he fails to carry out his statutory duty under the legislation. But his duty is only to do his best withlimited powers under this Act, mainly involving exhortation.There is therefore no way a Secretary of State could meet these legal requirements while “washinghis hands” of the NHS.The clause in the bill which removes the power of the Secretary of State to issue directions or todelegate functions to the NHS is a highly significant loss of accountability. The Government can notsay the Commissioning Groups and the Board are independent of the Government and autonomous,but also claim that the Government remains responsible. Their own documents – para 66 of theExplanatory Notes make this clear.EU Competition Law:38 Degrees claim the Health Bill will extend the scope of EU competition law in the NHS. Howeverthis is a red herring. Government legal advice and position is crystal clear – the Bill does not changeEU competition law.
This is an incorrect interpretation of the legal advice. In no place does it say that the bill changes EUcompetition law (that would be impossible anyway as EU competition laws are created at theEuropean level – not by the Department of Health). In fact the legal advice explicitly states that thebill does not and cannot change EU competition law. What the legal opinion does make clear is that the current position in terms of the application of competition law to the NHS has not beendefinitively determined. If it were tested, as a result of recent reforms, it is likely that competition law would already apply. Further, if the bill becomes law, it is even more likely that competition law will apply. By simply repeating the mantra that, “there is no change to competition law”, theGovernment has avoided any discussion of the potential far-reaching consequences if competitionlaw is found to apply to the NHS.
Instead we are maintaining the existing competition rules for the NHS introduced by the last LabourGovernment, described by the former Labour Health Minister, Ben Bradshaw, as “the NHS's firstever competition policy”, and giving them a clearer statutory underpinning.
It is worth noting that according to our independent legal advice by giving a “clearer statutory underpinning” the new plans would make it more likely that EU competition law would apply. Inaddition, as noted above, it is impossible for the Government to change competition law in any way,therefore it is not clear what putting the competition policy on a statutory footing actually achieves.
The body that Labour used to apply them, the Co-operation and Competition Panel will transfer toMonitor and retain its distinct identity.Monitor will be given concurrent powers with the Office of Fair Trading, to ensure that competitionrules can be applied by a sector-specific regulator with expertise in healthcare, thus shielding theNHS from the worst excesses of competition.

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