Clive Efford MP
Clive Efford MP
Note on the history of the duty on the Secretary of State to
promote a comprehensive health service
1. I have been asked to provide some advice to Mr Clive Efford MP concerning the difference in law between a duty on the Secretary of State to promote a comprehensive health service and a duty to provide a comprehensive health service. Although the words “promote” and “provide” may seem to mean the same thing, they give rise to very different legal obligations. Since the creation of the NHS in April 1948 the Secretary of State has always had the duty to promote a comprehensive health service but has never had a duty to provide a comprehensive health service. For the first 60 years of the NHS’s history the Secretary of State had a duty to provide a range of secondary care[1] services to meet the reasonable requirements of patients but there was never a requirement that these services were required to add up to a comprehensive health service.
2. There are a multitude of reasons why a comprehensive health service that provides relevant healthcare services to meet the needs of all NHS patients can never be delivered in practice. The understandable calls from patients for such a service are, when properly analysed, calls for a utopian service which no government has ever or could ever deliver because the supply of any healthcare service inevitably creates a demand for further services. At some point the money must run out and the available services have to be constrained by the available resources. In law the key difference between the duty to promote and the duty to provide services to meet reasonable requirements is that the later duty is recognised to be constrained by the resources available to the NHS.
3. The original duty to promote a comprehensive health service was set out in section 1 of the National Health Service Act 1946[2] which provided:
“It shall be the duty of the Minister of Health (hereafter in this Act referred to as “the Minister”) to promote the establishment in England and Wales of a comprehensive health service designed to secure improvement in the physical and mental health of the people of England and Wales and the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services in accordance with the following provisions of this Act”
4. The duty on the Minister to “provide” secondary health services was set out in section 3 of the 1946 Act which provided:
“As from the appointed day, it shall be the duty of the Minister to provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements, accommodation and services of the following descriptions, that is to say:—
(a) hospital accommodation;
(b) medical, nursing and other services required at or for the purposes of hospitals;
(c) the services of specialists, whether at a hospital, a health centre provided under Part III of this Act or a clinic or, if necessary on medical grounds, at the home of the patient;
and any accommodation and services provided under this section are in this Act referred to as “hospital and specialist services”
5. This distinction between the duty to promote a comprehensive health service and the duty to provide services to meet reasonable requirements was carried through to the second consolidating NHS Act, the National Health Service Act 1977. Section 1 of the 1977 Act provided:
“(1) It is the Secretary of State’s duty to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement—
in the physical and mental health of the people of those countries, and
in the prevention, diagnosis and treatment of illness,
and for that purpose to provide or secure the effective provision of services in accordance with this Act.
(2) The services so provided shall 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”
6. The duty to provide secondary care services was set out in section 3 of the 1977 Act in a slightly different way to the 1946 Act but using largely the same language[3]. The Secretary of State did not, of course, perform any of these duties himself or herself[4]. The section 3(1) duty has always been delegated to NHS bodies to carry out these functions. Prior to the 2012 changes the delegation of the section 3(1) duty was to primary care trusts under Regulations.
7. This division between the duty to promote a comprehensive health service and the duty to provide services to meet reasonable requirements was carried into the National Health Service Act 2006. This was considered by the House under the procedure for Consolidation Bills. Consolidation Bills are Bills which bring together a number of existing Acts of Parliament on the same subject into one Act without amending the law, although they occasionally contain minor corrections and improvements.
8. Section 1 of the National Health Service Act 2006 as originally passed provided as follows:
“(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 illness.
(2) The Secretary of State must for that purpose provide or secure the provision of services in accordance with this Act.
(3) The services so provided 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”
9. Section 3(1) of the 2006 Act, as originally passed, contained a duty on the Secretary of State to provide secondary care services. It used identical wording to section 3(1) to the 1977 Act, namely
“The Secretary of State must provide throughout England, to such extent as he considers necessary to meet all reasonable requirements—
(a) hospital accommodation,
(b) other accommodation for the purpose of any service provided under this Act,
(c) medical, dental, ophthalmic, nursing and ambulance services,
(d) such other services or facilities for the care of pregnant women, women who are breastfeeding and young children as he considers are appropriate as part of the health service,
(e) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service,
(f) such other services or facilities as are required for the diagnosis and treatment of illness”
That was the form of sections 1 and 3 when the present government came into power in 2010.
The interpretations of the duties to promote and provide by the courts.
10. Before looking at the changes to the wording of the 2012 Act it may be sensible to consider the judgments of the courts which have explained the interrelationship between In Coughlan v. North and East Devon Health Authority ex parte Coughlin [2001] QB 213 (“Coughlan”) the section 1 duty to promote a comprehensive health service was described as a “target which the Secretary of State should seek to achieve”. The Court went on to hold:
“It will be noted that Section 1(1) does not place a duty on the Secretary of State to provide a comprehensive health service. His duty is “to continue to promote” such a service. In addition the services which he is required to provide have to be provided “in accordance with this Act”.
11. The section 3(1) duty to provide services is subject to the qualification that the services must be “to such extent as he considers necessary to meet all reasonable requirements”. The section 3(1) duty to provide services is qualified what is “reasonable” and thus is limited by the resources that Parliament provides for the NHS. The resources available to the Secretary of State (or a local NHS body) have to be taken into account in determining whether the satisfaction of a health need for an NHS patient is or is not a reasonable requirement. This interpretation of the section 3 duty arose from R v Secretary of State for Social Services, West Midlands Regional Health Authority and Birmingham Area Health Authority (Teaching), ex parte Hincks and others (1980) 1 BMLR 93 where Bridge LJ said:
“The point on which this appeal turns is in the end a very short one which is whether, in performing his duty of considering to what extent it is necessary to meet reasonable requirements by the provision of accommodation, facilities and services under s 3 of the National Health Service Act 1977, the Secretary of State can in regard to forward planning for the National Health Service, have regard to government economic policy.
If there is to be some limitation [on the ambit of the duty under section 3], I ask myself the question: How is the nature and extent of that limitation to be determined? And the only sensible answer that I find it possible to give to that question is that the limitation must be determined in the light of current government economic policy. I think that is quite clearly an implication which must read into s 3(1) of the National Health Service Act 1977 if it is to be operated realistically”
12. The approach that the section 3(1) duty was qualified by the available resources was supported by the Court of Appeal in Coughlan where the Court said:
“24. The first qualification placed on the duty contained in section 3 makes it clear that there is scope for the Secretary of State to exercise a degree of judgment as to the circumstances in which he will provide the services, including nursing services referred to in the section. He does not automatically have to meet all nursing requirements. In certain circumstances he can exercise his judgment and legitimately decline to provide nursing services. He need not provide nursing services if he does not consider they are reasonably required or necessary to meet a reasonable requirement.
25. When exercising his judgment he has to bear in mind the comprehensive service which he is under a duty to promote as set out in section 1. However, as long as he pays due regard to that duty, the fact that the service will not be comprehensive does not mean that he is necessarily contravening either section 1 or section 3. The truth is that, while he has the duty to continue to promote a comprehensive free health service and he must never, in making a decision under section 3, disregard that duty, a comprehensive health service may never, for human, financial and other resource reasons, be achievable. Recent history has demonstrated that the pace of developments as to what is possible by way of medical treatment, coupled with the ever increasing expectations of the public, mean that the resources of the NHS are and are likely to continue, at least in the foreseeable future, to be insufficient to meet demand.
26. In exercising his judgment the Secretary of State is entitled to take into account the resources available to him and the demands on those resources. In R v Secretary of State for Social Services and Ors ex parte Hincks [1980] 1 BMLR 93 the Court of Appeal held that section 3(1) of the Health Act does not impose an absolute duty to provide the specified services. The Secretary of State is entitled to have regard to the resources made available to him under current government economic policy”
13. The importance of this case is that it shows that the fact that an individual has a need for healthcare services does not mean that the NHS has an absolute legal duty to provide services to meet all or any of those healthcare needs. It all depends on the priority which those needs are assessed to have by the Secretary of State (or in this case the Health Authority). That approach to the legal duties under the 2006 Act was also supported by the recent case of R (Condliff) v North Staffordshire Primary Care Trust [2011] EWCA Civ 910[5].
The changes made by the 2012 Act.
14. The Health and Social Care Act 2012 (“the 2012”) made significant changes to sections 1 and 3 of the 2006 Act. It made these changes by introducing amendments to the 2006 Act. Thus the amendments made by the 2012 Act become clear by comparing the original text of sections and 1 and 3 of the 2006 Act (as set out above) with the text of sections and 1 and 3 of the 2006 Act after the 2012 Act was implemented.
15. Following the changes made by the 2012 Act, section 1 of the 2006 Act provides:
“(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”
16. The first thing to note is that there are no changes to the duty to promote a comprehensive health service under section 1(1). It remains a duty to promote and not a duty to provide.
17. There is a change in the wording of section 1(2). This changes a duty on the Secretary of State to “provide or secure the provision of services in accordance with this Act” to a duty to “exercise the functions conferred by this Act so as to secure that services are provided in accordance with this Act”. That change was necessary because of the change to section 3(1) which removed the direct duty on the Secretary of State to provide. However neither the original section 1(2) nor the amended section 1(2) creates any additional duties on the Secretary of State. It merely links the “promotion” duty in section 1(1) to the discharge of the remaining functions of the Secretary of State under the NHS Act. In law therefore section 1(2) has little if any real effect. Further given that the Secretary of State’s duties under the NHS Act have always been delegated to others to discharge, it is difficult if not impossible to envisage any factual circumstances where this change of wording would make any difference to the services received by NHS patients.
18. The introductory words of section 3(1) of the 2006 Act were changed by the 2012 Act and now reads as follows:
“A clinical commissioning group must arrange for the provision of the following to such extent as it considers necessary to meet the reasonable requirements of the persons for whom it has responsibility …”
19. The range of services that the decision maker under section 3(1) has a duty to provide were unchanged but the duties are now owed by CCGs and not by the Secretary of State. It follows that the primary change introduced by the 2012 Act was to remove the Secretary of State’s direct legal responsibility for commissioning local NHS services. A new section 3B of the 2006 Act provided that the Secretary of State could require NHS England to commission certain categories of health services. The effect of these 2 sections was therefore that local NHS commissioners and NHS England had direct statutory responsibility for NHS commissioning, as opposed to undertaking these functions as the delegate of the Secretary of State. The government argued that this change merely reflected the reality in the NHS, which was of course true. However the changes had substantial political rather than legal effects. A consequence of the Secretary of State was no longer being the legal decision maker for NHS commissioning decisions was that these decisions were not being made by local NHS bodies as the delegate of the Secretary of State. Hence, despite the wording of section 1(3) which provided that the Secretary of State was accountable to parliament for the NHS, members of parliament have had queries about NHS commissioning matters referred by the Secretary of State to local CCGs or NHS England. The changes introduced by the 2012 Act meant that the Secretary of State had no power to intervene with local commissioning decisions and thus he could not be expected to answer in parliament for those decisions.
20. Clause 3 of the National Health Service (Amended Duties and Powers) Bill restores the wording of section 3(1) in the 2006 Act. Thus if the present Bill is passed, the Secretary of State would re-acquire the legal duty to provide acute services to NHS patients to meet all reasonable requirements. The clause also provides that the Secretary of State can delegate this duty to both CCGs and NHS England. It leaves section 3B of the 2006 unchanged because the Secretary of State would still retain the power to decide what services should be commissioned by NHS England and which should be commissioned by CCGs.
21. Clause 1 of the National Health Service (Amended Duties and Powers) Bill makes changes to section 1 of the 2006 Act. However the Bill makes no changes to the wording of section 1(1) because that wording was not changed by the 2012 Act. The new section 1(2)(a) does not make changes to the wording of section 1(2) of the 2006 Act (as changed by the 2012 Act). The new section 1(2)(a) thus provides that 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”. One of the functions that the Secretary of State must exercise is to discharge his duty to provide services under section 3(1). It follows that changes to that section are neither necessary or appropriate in circumstances where the Secretary of State not only has the power to delegate performance of these functions to NHS bodies but where the Secretary of State is unable to discharge the duties himself.
22. It might be helpful to consider why NHS “provision” duties are different to other duties imposed on government ministers. By way of example, the Secretary of State for the Home Department has a wide range of powers and duties concerning immigration matters. The vast majority of decisions issued in the name of the Home Secretary are not taken by the Home Secretary. They are taken by officials on behalf of the Home Secretary under delegated powers. But occasionally a matter is of sufficient national importance that an immigration decision is taken personally by the Home Secretary. This is accordingly a set of statutory obligations which can, in theory and occasionally in practice, be discharged personally by the Home Secretary.
23. The duty to provide NHS hospital services is a very different type of duty. The Secretary of State for Health has the legal duty to provide cardiac surgery services to NHS patients under the original wording of section 3(1) and re-acquires that personal duty under the wording proposed in the present Bill. This means that NHS cardiac surgeons who undertake operations on NHS patients were, until 2012, discharging the Secretary of State’s legal duties when they performed an operation. But even though the primary legal duty is on the Secretary of State to provide cardiac surgery services, performing a cardiac operation is not a function that a Secretary of State can legally do himself (because the Secretary of State is not a GMC registered surgeon and thus would be acting illegally if he attempted to undertake such an operation). The discharge of this legal duty is thus very different to a decision by a Home Secretary to refuse to allow a high-profile individual to enter the UK who may be a threat to national security. The Home Office function can be discharged by the Secretary of State personally whereas the duty under section 3(1) of the NHS Act cannot personally be lawfully discharged by the Secretary of State.
24. It follows that the right form of words for section 1(2)(a) is that the Secretary of State should “exercise the functions conferred by this Act so as to secure that services are provided in accordance with this Act” as opposed to providing a form of wording that suggests the Secretary of State should personally provide those services. That form of words does not detract from the duty on the Secretary of State under section 3(1) to “provide” acute care services because the section envisages that these duties will be discharged to those who have the professional medical skills to be able to treat NHS patients. The words in the existing section 1(2) and the new section 1(2)(a) thus recognise that the Secretary of State will only be able to discharge his duties under the NHS Act by getting properly qualified medical professionals to deliver the relevant services to NHS patients. That does not, in any way, dilute the Secretary of State’s legal or political responsibility under section 3(1) for the acute services that are provided to NHS patients.
DAVID LOCK QC
22nd November 2014.