The Health and Care Act: six key questions

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Part of The Health and Care Act 2022

The Health and Care Act, which introduces significant reforms to the organisation and delivery of health are care services in England, received Royal Assent in April 2022. In this long read, we explain what the changes brought in by the Act mean in practice.

1. What are the main changes brought about by the Act?

Long answer

At the heart of the changes brought about by the Act is the formalisation of integrated care systems (ICSs). ICSs are partnerships that bring providers and commissioners of NHS services across a geographical area together with local authorities and other local partners to collectively plan health and care services to meet the needs of their local population. This solidifies the move away from the old legislative focus on competition to a new framework that supports collaboration.

Each ICS is now made up of two parts: an integrated care board (ICB) and an integrated care partnership (ICP). ICBs will be tasked with the commissioning and oversight of most NHS services and will be accountable to NHS England for NHS spending and performance. ICPs will bring together a wider range of partners, not just the NHS, to develop a plan to address the broader health, public health, and social care needs of the population. ICSs have the potential to reach beyond the NHS to work alongside local authorities and other partners to address the wider determinants of health.

A key premise of ICS policy is that much of the activity to integrate care and improve population health will be driven by organisations collaborating over smaller geographies within ICSs, often referred to as ‘places’, and through teams delivering services working together on even smaller footprints, usually referred to as ‘neighbourhoods’. Unlike previous reforms, which have over specified at a local level, the Act gives local leaders flexibility in how they setup these more local arrangements.

The Act also does a number of things beyond progressing integration, including formalising the merger of NHS England and NHS Improvement with the resulting body, NHS England, now responsible for providing ‘unified, national leadership for the NHS’. The Act also introduces targeted changes to public health (for example limiting the advertisement of junk food), to social care by creating a framework for assuring commissioners and sharing data, and to the quality and safety of care by formalising the role of the Health Services Safety Investigations Body – an independent body to investigate patient safety issues in England.

At a late stage in the Act’s passage through parliament, changes were added to amend the Care Act 2014 to change the cap-and-floor model of social care funding which will be implemented from October 2023. The changes will mean that local authority contribution towards paying for a person’s care would no longer be counted towards the cap on their total costs, significantly reducing protection against very high care costs for people with low to moderate assets.

2. Is this an unnecessary top-down reorganisation?

Long answer

The Act substantially changes how the NHS in England is organised. Clinical commissioning groups, which have been the primary budget holders for NHS services since 2013, have been abolished. In their place, ICBs will perform this role from the 1 of July 2022 as ICSs are put on a statutory footing. 

ICSs are the latest in a long line of initiatives that aim to integrate care across local areas. Progress to date has been hampered by the previous legislative framework, which promoted competition between organisations, rather than collaboration across them.

The Act builds on the ambitions set out in the NHS Long Term Plan and is closely aligned to recommendations made by NHS England and NHS Improvement in November 2020 and in February 2021, following a period of engagement with health and care leaders. The changes seek to embed and accelerate the collaboration between NHS and other partners that ICSs have already been fostering and was accelerated during the response to the Covid-19 pandemic.

The Act does not mandate a one-size-fits-all approach or contain granular detail about how improved collaboration should be achieved, particularly at the place level, as this would risk undermining the local flexibility that is critical for integrated working. This permissiveness is important as now ICSs and places have greater freedom to respond to the needs of their local populations, rather than following an approach dictated by the top.

3. Will the Act lead to greater involvement of the private sector in delivering and planning clinical services?

Long answer

Independent sector organisations have long played a role in delivering health care services within the NHS, with services such as dentistry, optical care and community pharmacy being provided by the private sector for decades, and most GP practices are private partnershipsThere is no evidence of a significant increase in NHS spending on private providers or widespread privatisation of services in recent years.

The changes to clinical service procurement brought in by the Act will reduce transaction costs and give NHS and public health commissioners greater flexibility over when to use competitive procurement processes. These reforms sit within the wider shift brought about by the legislation that places collaboration, rather than competition, at the heart of how health care services are organised.

There have been concerns that these changes would allow contracts to be awarded to new providers without sufficient scrutiny, opening the door to private providers. However, a new provider selection regime, which is being developed by NHS England to support commissioners, will include safeguards such as transparency expectations and a process for decision making. ICSs should consider how they can encourage a diversity of providers, including voluntary and community sector (VCSE) organisations, which play a vital role in delivering health and care services.

In response to concerns about the potential for private providers to hold seats on ICBs, the Act was amended to require ICBs to set out in their constitution their arrangements for managing conflicts of interest. Futhermore, the Act also states that decisions of the board and its committees must be made transparently with meeting in public and papers published.

4. Does the Act give ministers more power over the day-to-day running of the NHS?

Long answer

The Act includes new powers for the Secretary of State to intervene in local service reconfigurations. Late changes were included in the Act to limit these powers to complex and substantial changes to services, ensure that NHS organisations and local authorities affected are consulted and place a six-month time limit by which time the Secretary of State must make a decision. While the government argued that these powers would only be used very occasionally and these safeguards will limit the scope for intervention, this does create the potential for ministers to get more involved in local service changes and to delay decisions.

The Act also gives the Secretary of State a general power to direct NHS England beyond the objectives set out in the NHS Mandate, the annual list of priorities that the Department of Health and Social Care issues to NHS England and for which NHS England is accountable. Again, ministers have argued that this new power would be used rarely and is necessary due to the increased range of functions NHS England now holds. However, it does increase the scope for ministers to intervene in the operational and clinical independence of NHS England.

Taken together, these new powers create the potential for ministers to get more involved in operational issues and intervene in decision-making in the NHS.

5. Will the Health and Care Act make any difference to patients?

Long answer

More people are now living with multiple long-term conditions and need support from several different services at the same time. Services therefore need to work together more effectively to provide joined-up, co-ordinated care that meets individuals’ needs in a flexible, person-centred way.

However, the NHS was set up to provide episodic treatment for acute illness and has been organised around separate organisations working autonomously. This has been reflected in the way that services are contracted and paid for and the way that providers and commissioners are inspected and regulated, making it difficult to join up services.

The changes introduced by the Act address this by bringing different organisations together to plan and deliver services in partnership and ensuring that NHS organisations work closely with local authorities, VCSE organisations and communities themselves to improve population health. National Voices, Age UK, the Richmond Group of Charities and The King’s Fund have produced a shared vision of what the new reforms could achieve by making it easier for health and care organisations of all kinds to work together to shape health and wellbeing.

Overall, however, the Act can only achieve so much by establishing a framework that enables services to collaborate to better meet patients’ needs. Whether this happens in practice will depend on how local organisations, leaders and clinical teams work together implement these changes. It will be important for them to be afforded time to make a success of this.

6. Does the Act tackle the big challenges the health and care system currently faces?

Long answer

The NHS faces significant challenges including growing waits for care, a workforce crisis and deep health inequalities after a decade of funding settlements that failed to keep up with demand for services. At the same time, social care is in crisis following years of real-term cuts in funding and the failure of successive governments to deliver reform. These challenges have been exacerbated and accelerated by the Covid-19 pandemic but were leading to rising pressures on services well before the pandemic started.

The Act is an important step forward that will support health and care organisations to deliver integrated care that better meets the needs of patients and service users, especially the increasing number of people who rely on support from multiple different services. In the long term, it offers the opportunity to improve population health by supporting the NHS to work alongside local authorities, the voluntary and community sector (VCS) and other partners to address social and economic determinants of health. It also strengthens duties on NHS organisations to tackle health inequalities. These are important changes, but they will not address the immediate pressures facing the health and care system. This will require sustained investment, excellent leadership and a much stronger focus on the health and care workforce.

Further reading

Comments

Clive Durdle

Position
Retired,
Organisation
X
Comment date
20 May 2022

What is the purpose of this legislation? Do we really need permission to act together cooperatively for the common wealth? Words like place and person centred have been used and strange comments like the community taking priority over the individual when the reality is always both together. Where are we going, what path have we taken, have we described well the Jerusalem we are going towards?

Pearl Baker

Position
Carer/Independent Mental Health Advocate and Adviser,
Organisation
Carer/Independent Mental Health Advocate
Comment date
20 May 2022

I have not read The Health and Care Act in Full online, awaiting Hard Copy, It is important Patients/Carers no their rights. HAND Publication given to each.

I am awaiting the results of ICO investigation into LA and the OPG who both FAILED to implement the Care Act 2014 and the MCA2005 code of Practice. Patients charged for Support whilst subject to section 117 FREE Aftercare, no PERSONAL Budgets (Mandatory) PHSO and LG & SC Ombudsman 'joint' PRESS release on Section 117 CHARGING 'basically' saying it is 'illegal'

Carers/Patients must be included into the Conversation,. Caldicot Guardian Updated December 2020 is totally ignored Principle 8

MCA2005 code of practice is at 'odds' with the ACT itself. Firstly to be placed into the COP 'Property and Finance you are deemed to lack Capacity:-the MCA2005 code of Practice states everyone is deemed to HAVE 'Capacity' unless they are unable to answer FIVE question put to them when a decision is made on something particular.

The FNAL observation, based on experience: is the TWO ombudsman do NOT always work together on COMPLAINTS, ignore the contents of a COMPLAINT on SECTION 117 FREE aftercare, Safeguarding,, NEGLECT 'In Breach of Duty of Care' in the Care Act.

The OPG LA/Deputies have no training in Mental Health and INSTRUMENTAL in failing to follow the Care Act 2014 (they say they follow) and the MCA2005 code of Practice.

I rest my case, Nothing will change, No Regulation, No Monitoring, no FEEDBACK from 'Friends and Family'

S Butler

Comment date
23 November 2021

Im nobody, just someone that depends on NHS for my health and I can tell you now, none of the above makes any sense to me at all. Nobody seems to care about the actual patients anymore!!!

Jan

Position
Retired CMHT Lead Nurse,
Organisation
NHS
Comment date
14 November 2021

My experience of the massive use of private health and social care providers, is when they fail, NHS and LA staff are expected to step in to right their wrongs putting more pressure on an already completely depleted statutory workforce. I fear if politicians are given carte blanche to outsource to these private organisations without careful consideration and proper scrutiny, the burden will continue on the NHS and LA

lwestwood

Position
Digital Comms Assistant,
Organisation
The Kings Fund
Comment date
28 September 2021

Hello,

Thank you for your comment and apologies for the delayed reply. I consulted with our policy experts at the Fund and they advised that the Social Care Institute for Excellence (SCIE) would be the best source of information for your question. I've found the following page on their website which looks at the key features of the LPS and there are resources available to download when you create a free account - https://www.scie.org.uk/mca/dols/practice/lps

I hope you find a useful resource!

Best wishes,
Lizzie

Pearl Baker

Position
Carer/Advocate,
Organisation
Independent
Comment date
18 September 2021

The success of 'integration' is about knowing what is not working:? Patients, Carer's, Support worker need to know what to expect from a system that is supposed to deliver a Patient Centred, Patient Choice, Holistic System of Health & Social Care, and 'integrated'. All Patients should be given information on 'integration' and what it means, a 'FEEDBACK' form is essential if it is to succeed. The 'Feedback' form should be returned to a central 'locality' Hub, it will identify success or failure.

PHE should be involved in advertising the new system of 'integration' including a POSTER campaign.

There are many 'strands' to 'integration' currently it comes down to education, training, and knowledge on your Rights;

Who within an 'integrated' Health & Social Care will inform you of Welfare Benefits, Personal Budget, Direct Payment. PIP, ESA, many Patients have no idea of their entitlements and how to apply.

Independent Well Trained Advocates should be included in the Process of 'Integration' and your entitlements.

I am concerned with the shortage of GPs and Social Workers, and how difficult it is to get an Appointment.

jean

Position
carer in adult social care,
Organisation
independent
Comment date
17 September 2021

What still isn't clear is how this interface happens between NHS and councils. this is the interface for social care. If you don't provide more funding to councils nothing will change.

The pandemic has caused huge financial damage to local councils, this will (and is) leading to huge cuts in care packages. Lest we forget: the average 'full time care package' is 2 and 1/2 hours - for 4 visits in a day. A carer will receive approx £9.50 an hour - if they are lucky. Care packages mean that carers are often not working 'full' hours, and will receive token travel payments. In my own experience - if I have to pay for parking- I can be earning as little as £3.20 an hour. I have had schedules where I am meant to be at the next client 15 minutes before the leaving the person I am attending to, with no travel time allowed in between.

Spending huge amounts of money re-organising the NHS without really addressing the issues with the funding to Councils will do nothing for Social Care- and social care is almost completely privatised. the work force of Social Care is larger than that of the NHS and your mentions of it are derisory.

over looked.

Brooksy

Position
Mental Capacity Act Facilitator,
Organisation
NHS
Comment date
13 September 2021

I would like to see some focus on how you see the ICS impacting on the implementation of the Liberty Protection Safeguards and is there any focus that professionals should be giving to it, in terms of publicity, in also providing information to the general public, which wasn't really evident in the implementation of the Mental Capacity Act when it first came fully into force in October 2007.
How do you envisage this taking place in an ideal world?

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