Legal status of Public Health
Section 1 of the Health and Social Care Act 2012 reads as follows
Secretary of State’s duty to promote comprehensive health service
(1)The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement—
(a) in the physical and mental health of the people of England, and
(b) in the prevention, diagnosis and treatment of physical and mental illness.
(2)For that purpose, the Secretary of State must exercise the functions conferred by this Act so as to secure that services are provided in accordance with this Act.
(3)The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England.
(4)The services provided as part of the health service in England must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed.
Section 11 of the Act (the Secretary of State’s duty as to protection of public health) and section 12 (Duties as to improvement of public health) appear under the subheading “Arrangements for the Provision of Services”
The following sections of the Act appear under the subheading “Further Provisions Relating to Local Authorities’ Roles in the Health Service”
29. Other health service functions of local authorities under the 2006 Act
30. Appointment of directors of public health
31. Exercise of public health functions of local authorities
32. Complaints about exercise of public health functions by local authorities
Section 29 of the Act reads:-
In section 249 (joint working with the prison service) after subsection (4) insert—
“(4A) For the purposes of this section, each local authority (within the meaning of section 2B) is to be treated as an NHS body.”
Section 64(4) of the Act says
“The NHS” means the comprehensive health service continued under section 1(1) of the National Health Service Act 2006, except the part of it that is provided in pursuance of the public health functions (within the meaning of that Act) of the Secretary of State or local authorities.
The format of the Health and Social Care Act 2012 is mainly to amend the National Health Service Act 2006. For example the appointment of directors of public health takes place under section 73A of the National Health Service Act 2006, which was inserted into that Act by section 30 of the Health and Social Care Act 2012.
From this we can infer
- Public health in Public Health England and in local authorities is part of the health service
- It is not however part of the NHS
- However some of the functions transferred to local authorities (Health & Well Being Boards, Healthwatch, custody health, and medical examiners) do appear to be part of the NHS.
Constitutionally significant points are
- Local authorities will manage part of the health service for the first time since 1974
- For the first time ever part of “the health service” is not part of “the NHS”. This is an entirely new distinction.
The Significance for Local Authorities of Managing Part of the Health Service
The following paper was presented to the Leadership Team of Stockport MBC on 17th April 2012
Public health is part of the health service and will remain so. Not since 1974 have local authorities had health service functions and it is important that we understand the differences between this situation and our other functions.
Constitutionally the responsibility for most local authority functions lies with the local authority. DCLG’s responsibility is that of a regulator and a mediator of relationships. DCLG is not accountable to Parliament for local government services. Its role in finance is as the custodian of its distribution.
Responsibility for the health service lies with the Secretary of State directly. He is accountable to Parliament and must write an annual report to Parliament on the health service in England. The financial allocations are made out of NHS money for which the Secretary of State is responsible. His function is then devolved to NHS bodies and also now to local authorities.
How much this constitutional difference will matter in practice is unclear but there will be some differences
- DH will have wider powers of direction and intervention than DCLG
- It will also be more accustomed to using them
- It is unlikely that ring fencing will be removed from the public health grant without replacing it with some other method for the Secretary of State to account for its value e.g. outcome-based funding
- Certain legal constraints will apply e.g. we will not be permitted to charge
- Certain NHS systems will apply (although not all because the Government is now drawing a new, and to some extent mystifying, distinction between “the health service” and “the NHS”)
- It will be possible to raise questions about public health in Parliament
MANDATED v NON-MANDATED SERVICES
The Secretary of State will identify certain public health services where it is sensible to ensure national consistency. These will be called “mandated services”. Mandated services are likely to be the subject of more national intervention to standardise provision and non-mandated services are likely to offer more scope for local variation.
It is important to appreciate that mandated services are not the most important services; they are the services which it is most important to standardise.
The distinction between mandated and non-mandated services is not a duty/powers dichotomy. Management of the part of the health service for which we are responsible is a duty. Mandated services are a different concept related more to the degree of freedom we will have to decide how to discharge the duty.
The Significance of Being Part of the Health Service but not Part of the NHS
There is no clarity as to why the Government has chosen to introduce the distinction between “the health service” and “the NHS” which is introduced by s64 (4).
Ideas range from the strongly positive (“Andrew Lansley wants to emphasise public health but when people talk about the NHS they always focus on health care so this liberates us”) through the neutral (“There needed to be a term for the services commissioned by the NHS Commissioning Board and CCGs and so this distinction was an efficient way to create that”) to the long term paranoid (“It is all part of Oliver Letwin’s plans to make the NHS no more than a brand name. If you want to privatise something you have to separate out its public functions first.”) to the immediately paranoid (“They’ll not give us the NHS level of growth and they’ll just throw us to the wolves.”)
Apart from the fact that there is no evidence yet to support the immediate paranoia, there is no clarity as to which of these is right. A number of comments by Anne Milton have adopted the positive explanation.
The immediate practical question is which health service systems will be seen as NHS systems and will therefore exclude public health, and which will be seen as health service systems and will therefore include us. This is a question which civil servants are painfully working their work through. This task might have been easier, and more likely to be done effectively, if anybody had the foggiest idea what the distinction is intended to mean and what (if anything) it is actually for.