Health & Care Bill amendment clarifying Integrated Care Boards’ duty to commission hospital services is not enough

  • The Bill reduces the government’s obligations to secure NHS care for us all in clauses 15, 16 and 18.
  • After the Second reading in July 2021, the Public Bill Committee passed Amendment 12 to clarify in Clause 15 that the legal duty for the NHS to provide hospital services continues. (This was omitted in the Bill as passed by the House of Commons at the Second reading. It could have resulted in whole areas without hospital medical services.)
  • But even with Amendment 12, the Bill does not uphold the government’s duty to provide an effective framework for protection of the right to life, which is clearly stated in the Joint Human Rights Committee’s 2019-21 7th report (The Government’s response to COVID-19: human rights implications, paragraph 65).
  • Clause 15 still omits the requirement to ensure that emergency care is provided for all persons present in the area of the Integrated Care Board. Under current legislation (Health and Social Care Act 2012) NHS commissioners must arrange accident and emergency provision for everyone present in their area
  • Please tell your MP to vote against the Health and Care Bill when it comes back to the House of Commons on November 22nd and 23rd. Here’s how.

The Health and Care Bill as passed by MPs at its second reading on 14th July 2021 handed commissioning from Clinical Commissioning Groups to Integrated Care Boards; and in the process removed the requirement under existing legislation to commission (arrange for the provision of) hospital medical services and ophthalmic services.

This caused huge public outrage as it meant whole areas could potentially be left without hospital services, given ongoing moves to cut and centralise hospital services.

On 16th September 2021 the Public Bill Committee passed Amendment 12, clarifying that statutory Integrated Care Boards have the duty to provide hospital services:

The Health and Care Bill Clause 15 gets rid of key section of NHS Act 2006 that requires a Clinical Commissioning Group to arrange emergency services “for every person present in its area”

Section 3(1C) of the NHS Act 2006 was created by an amendment that the government made to the 2012 Health and Social Care Act as it was going through Parliament, after the infamous “pause“. This amendment was made in response to objections that the 2012 Health and Social Care Bill would only require a Clinical Commissioning Group to be responsible for its members – people registered with GP Practices in their area – NOT for everyone present in their area.

The amendment, which ended up as Section 3(1C) of the NHS Act 2006, requires a CCG to commission emergency services “for every person present in its area.” But Clause 15 of the 2021 Health and Care Bill gets rid of Section 3(1C) and so it will not be passed onto Integrated Care Boards, which are to replace Clinical Commissioning Groups.

The removal of Section 3(1C) of the NHS Act 2006 completes the shift from NHS Commissioners’ area-based responsibility to membership-based responsibility, which occurred under the 2012 Health and Social Care Act. The implications of this are awful, in terms of people’s right to access NHS care.

Integrated Care Boards’ membership will be allocated to the Boards “under rules made by NHS England without Parliamentary process” – unlike for Clinical Commissioning Groups which were instructed by Parliament about who their members were.

This would be the end of a universal NHS that provides healthcare for everyone who has a clinical need for it. Parliament needs to stop it.

Update 28.7.2022 – The provision of NHS emergency care – omitted from the contentious Health and Care Act 2022 that received Royal Assent in April – has finally been legislated for in a Statutory Instrument (2022 No 635) that took effect on 1st July. You can find out more here.

Health & Care Bill’s duty to promote innovation and integration cements national programme of hospital cuts, closures and downgrades

Amendment 12 doesn’t solve a mountain of problems with commissioning hospital services, that stem from the Health and Care Bill’s duty to promote innovation and integration. (Chapter A3 Integrated Care Boards Clause 19, General Functions, (2) 14Z39 Duty to promote innovation and 14Z42 Duty to promote integration)

Based on the 2009 cost-cutting McKinsey report, over the last decade ‘innovation and integration’ have meant:

  • cutting and centralising hospitals – disproportionately reducing the ability of people in remote areas and on low incomes to attend hospital or to visit family and friends in hospital
  • shifting many of their services out of hospital into poorly-funded and resourced community and primary care services,
  • deskilling and downgrading community and primary care staff by “additional roles” of new grades of less skilled and qualified staff
  • heavily relying on “self care”, unpaid carers and voluntary sector employees for “care closer to home”

Since the ConDem government’s £20bn cut to NHS spending 2010-2015, there has been a mad scramble to downgrade and close A&Es across England, cut hospital beds and staff and close and centralise hospitals. England now has far fewer hospital beds and intensive care units per 100K population than comparably wealthy countries.

Black alerts have become increasingly common, when hospitals turn away acute and emergency patients because they have no room for them.

The waiting list for elective operations is sky high – and this is not just because of the pandemic.

Ambulances can’t respond to emergency calls in a timely fashion because they are queued up outside A&Es caring for patients unable to be transferred into A&E for want of space.

Hospital discharge of patients has been speeded up, particularly through the use of a new “discharge to assess” procedure – but this often causes a rise in readmissions.

Private hospitals are increasingly profiting from an increase in both NHS patients and self-pay patients.

Hospitals have routinely been running at far higher bed occupancy levels than the 85% recommended by the Medical Royal Colleges. The Health Service Journal recently reported NHS Providers deputy chief executive Saffron Cordery as saying:

“Different research shows hospitals work most safely and effectively at bed occupancy of 85 per cent and no higher than 92 per cent.

“It’s really worrying that a growing proportion have significantly higher occupancy levels. This can have a direct impact on their ability to provide safe and timely care for patients.”

“Treating patients quickly and effectively depends on having the right number of beds. We need the NHS to be resourced properly which is why it’s so important the health service gets the immediate funding it needs for the second half of this financial year and in the upcoming comprehensive spending review.”

No evidence for effectiveness of integrated out-of-hospital services

The claim is that “innovation” and “integration” of out-of-hospital services will allow for personalised care and improved “quality and sustainability” of NHS services and patient outcomes.

But since this integration was mandated in NHS England’s 5 Year Forward View and GP Forward View, there’s been no substantive evidence of any such improvements as a result of the integration of these organisations and their services.

Integration of organisations and their services was piloted from 2015 to 2018 by NHS England’s Vanguard schemes, with the overall aim of reducing unplanned hospital admissions. This is consistent with the so-called “left shift” of services out of hospitals into community and primary care – and people’s own homes. These “new care models’ are key to the model of integration that the Health and Care Bill requires, through its imposition on statutory Integrated Care Systems of a duty to integrate and innovate.

Overall, the various different Vanguard schemes did not reduce unplanned hospital admissions, although they were shown to limit their increase, compared to areas without Vanguard funding and status. The July 2018 National Audit Office Report concluded that

“it is still too soon to be conclusive on the impact of vanguards on the demand for hospital services and patient outcomes overall.”

The November 2020 National Institute for Health Research Report on The Vanguard programme to integrate health and social care found that it slowed the rise in emergency admissions to hospital among care home residents but did not achieve its other aims. This first evaluation of the Vanguard integrated care models identified outstanding questions over the cost-effectiveness of integrated care schemes and how best to structure them, but did support NHS England’s plan to expand integrated care for care home residents.

(Maybe the government wouldn’t feel the need to cut hospital services to pay for increased “integrated” NHS support for care homes if it pulled back social care from the clutches of private equity, so care homes weren’t run by profit-extracting private companies such as HC-One. HC-One care homes have been loaded up with debt as a way for the company’s investors to profit from whacking interest charges on the debt. Last year, the £63m profits made by the group of which HC-One is the largest part disappeared into the £58m interest costs on the debt with which the company has been financially engineered. The debt includes a loan from the group’s parent company in the Cayman Islands which claims interest payments at a rate of 15%-18% a year.(Private Eye)

Commenting on the Calder Valley Care Home Vanguard at a 2016 hospital cuts consultation drop in, Calder Valley GP Dr Nigel Taylor said the Care Home sector was near meltdown and that Calderdale Clinical Commissioning Group was supporting the “care home market” because “there are huge problems with that – the care home market needs support and development. It needs to be fixed now.”)

Amendment 12 is not enough to make sure that the Bill upholds the government’s duty to provide an effective framework for protection of the right to life.

This government duty is clearly stated in the Joint Human Rights Committee’s 2019-21 7th report (The Government’s response to COVID-19: human rights implications, paragraph 65).

Amendment 12, ineffective as it is, is further weakened by Clause 18 of the Bill, which would entitle providers of services to have “discretions…in relation to anything to be provided” by them.

The Bill would also restrict patients’ access to NHS services – already limited by the removal of routine NHS funding for 48 diagnostic and surgical interventions and the use of referral management systems to limit GPs’ ability to refer patients to hospitals – by imposing tight financial controls:

• limiting the amount of money given to each Integrated Care System (ICS) in England
• shifting the risk of overspending onto providers – whether these are corporate,
charitable or publicly owned and run NHS.

New forms of NHS Integrated Care contracts incentivise providers to cherry-pick patients on the basis of actuarial/insurance calculations about whether or not treating them represents ‘good value for money.’

These practices already exist, but through imposing the duty to ‘innovate and integrated’ on Integrated Care Boards, the Bill would lock them into law.

No amendments can make the Health and Care Bill meet the needs of the NHS for the 21st Century

The whole fabric of the Bill is rotten. Patching and darning the worst bits of it with amendments will not alter the fact that this is a Bill that is bad for patients and bad for staff.

The Bill will split the NHS into 42 statutory local health systems that replicate the US Medicare managed’/accountable care model of limited health care for those who are too poor or ill to pay for private health insurance, using a new form of contract designed to restrict patients’ access to healthcare and replacing clinical decisions with actuarial decisions.

The Sustainability and Transformation Partnerships that are the basis for these 42 Integrated Care Systems, were set up in 2016 to create plentiful opportunities for private health companies. These opportunities have been seized on, to the extent that the NHS now functions (by design) largely as a set of public/private partnerships.

These “new care models” were designed to open the NHS up to private and third sector companies and they’ve succeeded. The Bill’s imposition on Integrated Care Boards of a duty to innovate and integrate would cement these new public/private care models in place, as already mentioned.

The profit motive gets in the way of the duty of care. Private companies cut corners for the sake of profit and give staff poor terms and conditions. This means staff can’t provide the quality of care they want to. Whether clinical staff or non-clinical staff like cleaners, caterers etc

You have only to look at the hospital patients killed in 2019 by listeria in sandwiches provided by a private company. This was investigated by the Food Standards Agency. There have been other examples of NHS hospital patients being poisoned by sandwiches provided by private companies.

If private companies and 3rd sector organisations can’t make money, they hand back the contract or go broke. Either way this means dumping patients and the NHS in it. Examples include Circle, which in 2012 won a high-profile contract to run the NHS Hinchingbrooke hospital in Cambridgeshire, but walked away three years later.

Around 40% of voting shares in Circle Healthcare are now owned by a UK subsidiary of USA health insurance giant Centene Corporation, which is also the biggest private company provider of GP services.

The concentration of NHS services in corporate hands means that in Greenwich, SE London, some Musculo Skeletal (MSK) patients are likely to have all stages of their care provided by companies that are fully or partially owned by  Centene. The Greenwich GP Practice, the MSK service and a private hospital that the MSK service refers NHS patients to are all under full or partial control of Centene Corporation’s UK subsidiaries. This is the result of a run of corporate takeovers and purchase of voting shares that is concentrating control over NHS services in the hands of a few companies, with little or no public knowledge. But Centene’s UK subsidiary already has a record of handing back GP contracts when they can’t make money from them.

Serco announced in 2014 that it would cease providing clinical services after problems with its deal to run Braintree hospital in Essex and its community care service in Suffolk led the company to hand back both contracts early.

One to One Midwives, a private, for profit company, contracted by the NHS in Liverpool, recently ran out of money and shut up shop, leaving pregnant women in the lurch.

Other examples of failed private sector contracts include non-emergency ambulance transport in Sussex, Hertfordshire and Bedfordshire, while companies running networks of GP surgeries in Doncaster and Bedford went bust, and others have handed back their contracts for GP surgeries and out-of-hours services.

In July this year a children’s hospice in Bury run by the charity Forget Me Not, had to close because it’s broke. This is the trouble with leaving vital services to be run by charities and voluntary section organisations – which NHS England intends will happen more and more, in a move back to the Victorian era.

I could go on.

The new contracts for NHS services that Integrated Care Systems will operate are complex lead provider contracts that allow/require the lead provider to subcontract to enable these care models to be carried out. No doubt the contracts will be held by NHS organisations, but there will be massive amounts of privatised subcontracting.

And despite the Health Minister’s promised amendment to prevent private companies from influencing Integrated Care Boards, NHS England’s guidance on statutory Provider Collaboratives means the Bill would still allow private companies a decision-making role in the statutory Integrated Care Systems – including decisions on finance. More info here.

Please tell your MP to vote against the Health and Care Bill when it comes back to the House of Commons in a few weeks. Here’s how.


  1. […] Health and Care Act 2022 to provide Emergency Care for all who need it. The Health and Care Bill Clause 15 gets rid of a key section of NHS Act 2006 that requires a Clinical Commissioning Group to arrange emergency services “for every person […]


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