This Time, it's for Real: The Health and Social Care Act 2012
| Date | 01 May 2013 |
| DOI | http://doi.org/10.1111/1468-2230.12024 |
| Author | A.C.L. Davies |
| Published date | 01 May 2013 |
LEGISLATION
This Time, it’s for Real: The Health and Social Care
Act 2012
A.C.L. Davies*
This article examines the Health and Social Care Act 2012 and associated reforms to the
National Health Service in England. It focuses on the Act’s policy of making the NHS market
more ‘real’, by both encouraging and compelling NHS bodies to act as ‘market players’. The
article considers whether the reforms are compatible with the constitutional requirements of
accountability for the provision of a public service such as the NHS. It argues that the reforms
threaten accountability for three reasons: they make the Secretary of State for Health’s rela-
tionship with the NHS more complex, they create opaque networks of non-statutory bodies
which may influence NHS decision-making, and (especially in relation to competition) they
‘juridify’ policy choices as matters of law. Taken together, these arguments suggest that there
is force in the claim that the reforms will contribute to ‘creeping’ – and thus unaccountable –
privatisation of the NHS.
INTRODUCTION
The Health and Social Care Act 2012 (HSCA) provides the statutory basis for
the latest round of structural reforms to the National Health Service (NHS) in
England.1The Act continues the now long-standing policy that the NHS should
operate as a market, in which health care is provided to patients because it is
bought from hospitals and other service providers by ‘purchasers’ on their
behalf.2The Act creates a new legal framework for the NHS that seeks to shield
purchasers and providers from ministerial interference, whilst compelling them
to behave as market actors.
The legislative process was mired in controversy, not least because the
Coalition Agreement stated that the government would ‘stop the top-down
reorganisations of the NHS that have got in the way of patient care’.3This was
welcomed by those who believed that the constant ‘churn’ of structural reform
in the NHS was a distraction from the need to find ways of saving money in a
time of austerity and to ensure that patient safety was prioritised in the wake of
*Garrick Fellow and Tutor in Law, Brasenose College, Oxford; Professor of Law and Public Policy,
University of Oxford. This article considers developments up to 14 November 2012. The Act is
expected to enter fully into force from April 2013. I would like to thank the section editors and two
anonymous referees for helpful comments on an earlier draft of this article; responsibility for errors
remains my own.
1 Some parts of the Act have UK-wide significance but this article will focus primarily on the
England-only aspects.
2 On the history of the NHS see generally, R. Klein, The New Politics of the NHS: From Creation to
Reinvention (Oxford: Radcliffe, 6th ed, 2010).
3 HM Government, The Coalition: Our Programme for Government (2010) 24.
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© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(3) MLR 564–588
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
recent scandals.4Nevertheless, the White Paper Equity and Excellence: Liberating
the NHS was published by the Department of Health soon after the general
election.5The resulting Bill was introduced into Parliament in January 2011 but
because of strong opposition from health professionals in particular, the govern-
ment ‘paused’ the legislative process in order to conduct a ‘listening exercise’.6
This extra stage of consultation was conducted by a body created specially for the
purpose known as the NHS Future Forum, and resulted in some changes to the
legislation.7The Bill finally received Royal Assent in March 2012. The Act is
long and complex with some 309 sections and 23 schedules. Although it contains
some free-standing provisions, it proceeds largely by amending the National
Health Service Act 2006, which adds to the difficulty of deciphering it.
This article will begin by identifying the policy agenda underpinning the
legislation and some of its most important themes, followed by an overview of
the main changes brought about by the 2012 Act. It will then explore four
elements of the Act and associated reforms that are particularly illuminating
of the themes identified earlier. The final section concludes. It is important to
emphasise that the Act introduces a number of other reforms not related to the
NHS market, such as the transfer of public health responsibilities from the NHS
to local government,8and changes to the way medical professionals are regu-
lated.9Constraints of space preclude a full discussion of these aspects of the Act.
POLICY AGENDA AND KEY THEMES
In simple terms, the main theme of the reforms is to make the NHS market
more ‘real’. Successive governments have maintained some version of the split
between the purchasing and provision of services, and (with more or less
enthusiasm) have encouraged the idea that there should be competition, or at
least contestability, in the market.10 Competition has been presented as a way of
encouraging NHS providers to improve the quality and efficiency of their
services. It is intrinsically linked to the idea that patients should be given choices
about where and how their treatment is provided. And it has been coupled with
the idea that competition should involve private and voluntary sector providers
as well as NHS bodies.
4 For example, the ongoing Public Inquiry into the Mid-Staffordshire NHS Foundation Trust.
5 Department of Health, Equity and Excellence: Liberating the NHS Cm 7881 (July 2010) (Equity and
Excellence).
6 For detail on the legislative process, see N. Timmins, Never Again? The Story of the Health and Social
Care Act 2012 (London: Institute for Government and The King’s Fund, 2012).
7 For its recommendations see NHS Future Forum, Summary Report on Proposed Changes to the NHS
(Department of Health, June 2011).
8 Health and Social Care Act 2012 (HSCA), ss 12, 18, 22, 29–32.
9 HSCA, ss 209–231.
10 A market was first introduced into the NHS under the National Health Service and Community
Care Act 1990, on which see Department of Health, Working for Patients Cm 555 (1989). The
Labour government elected in 1997 introduced significant changes in the Health Act 1999, on
which see Department of Health, The New NHS: Modern, Dependable Cm 3807 (1997), in which
the market was retained but with greater emphasis on collaboration and occasional contestability
rather than competition.
A.C.L. Davies
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. 565
(2013) 76(3) MLR 564–588
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