Local authorities: Health & Social Care Act 2012 – guidance

Overview

The Health and Social Care Act 2012 received Royal Assent on 27 March 2012 and completely changes the way NHS services in England are provided. Most of the provisions of the Act came into force this month. The Act is broken down into twelve parts and restructures public health services both nationally and locally.

Public Health England, the new executive agency, will be the national body responsible for overseeing the public health system and will be answerable to the Secretary of State. Public health and health improvement will become a major function for local authorities, with local leadership for public health being at the heart of the new public health system. Upper tier and unitary authorities will be expected to take on new responsibilities to improve the health of their populations.

Local authorities' responsibilities

Local authorities will become responsible for health locally and will be under a duty to employ a Director of Public Health whose job it will be to promote health across the whole of the authority and lead discussions about how best to use the local ring-fenced public health budget. Local authorities will have considerable freedom in terms of how they choose to invest their grant to improve their population's health although they will have to have regard to the Public Health Outcomes Framework, which sets out the desired outcomes for public health and how these will have to be measured.

A health premium will be payable to the local authority if progress is made against the public health indicators, for example, fewer children under 5 having tooth decay, more women breastfeeding their babies and fewer people dying from heart disease and stroke. Clearly the aim is to give local authorities the money, power, right expertise and information to build healthier communities.

Local authorities will have a much greater leadership role in local health services, becoming responsible for local health care and working with GPs and others to identify what local health priorities should be.

The Act gives the Secretary of State power to issue regulations requiring local authorities, Clinical Commissioning Groups (CCGs) and the NHS Commissioning Board to carry out any of the Secretary of State's public health functions. This could include providing vaccination, immunisation or screening services, technical equipment for research or information, advice and training and providing contraceptive services. Bodies which carry out the Secretary of State's public health functions will be responsible for any liabilities incurred.

Changes to the Mental Health Act 1983 will now impose a duty upon local authority social services to arrange for independent mental health advocacy services for individuals subject to (or likely to be subject to) the Mental Health Act.

The Act amends the Coroners and Social Justice Act 2009 in that the medical examiner service will become the responsibility of local authorities. Essentially, the local authority will be under a duty to appoint local medical examiners for their area, establish a local medical examiner service, monitor the performance of medical examiners and make arrangements for the collection of a statutory fee charged for all deaths not investigated by a coroner. This important role will require the collecting and analysing of statistical data so as to ensure there is no repeat of the Harold Shipman case where multiple deaths of older patients went unnoticed and unchallenged. This, however, will not come into force until April 2014.

At the present time, local authorities carry out their health scrutiny functions through an overview and scrutiny committee. Whilst a local authority will be free to continue to carry out its functions through such a committee, there will not be a requirement for them to do so; rather health scrutiny will become a function of a local authority meaning that local authorities will be free to make alternative arrangements, i.e. appointing a committee to include members of the public. However, local authorities could exclude members of the public from meetings where confidential health scrutiny is to be discussed

Health and Wellbeing Boards

Every upper tier local authority will be required to create a Health and Wellbeing Board (H&WB) in its area, set up as local authority committees with at least one elected councillor from the local authority, local authority directors of adult social services, children's services and public health, a representative of each relevant CCG and a representative of Local Healthwatch, an independent organization employing its own staff and involving volunteers. The aim of the H&WB is to give citizens and communities a stronger voice to influence and challenge how health and social care services are provided within their locality.

The H&WB will be under a duty to encourage integrated working between commissioners of NHS, public health and social care services in the local area to include providing advice and assistance for existing partnership arrangements between NHS bodies and local authorities. A local authority can arrange to delegate any of its functions to the H&WB which could include health-related functions affecting the health and wellbeing of the population, such as housing. However, a local authority cannot delegate its overview and scrutiny functions to the H&WB.

Transfer of public health functions

Other public health functions transferred to local authorities include the school nursing service, i.e. those nurses working in a public health role with school-aged children and their families. In 2015, this will also extend to public health in relation to 0-5 year olds.

Under s.29 of the Act, local authorities will now have a duty to support public health in prisons which could lead to local authorities and prison services delegating public health functions to each other. Other mandatory public health services from 2013 will include the provision of appropriate access to sexual health services, immunisation and screening plans, ensuring NHS commissioners receive public health advice on matters such as health needs assessments for particular conditions or disease groups and an NHS Health Check programme for people aged between 40 and 74.

Whilst local authorities under current legislation charge for some services they provide, e.g. decontamination of a premises and/or land, this will now fall under the new duty to improve health and will be free unless a charge is approved by the Secretary of State.

The Act abolishes Strategic Health Authorities and PCTs. PCTs' responsibilities for local health improvement will be transferred to local authorities with CCGs taking over the rest.

There are provisions for joint working by local authorities and CCGs. Where a local authority and CCG's boundary overlaps or is within the local authority's area, the local authority and CCG have a duty to prepare a joint strategic assessment which must involve the Local Healthwatch organisations and the people who live and work in the local authority's area. They must also consider if the needs can be met with pooled budgets.

The Act also imposes a duty on H&WBs to encourage integrated working between commissioners of NHS, public health and social care services for the benefit of the health and wellbeing of the local population.

The Secretary of State for Health continues to be under a duty to promote a comprehensive health service and must secure continuous improvement in the quality of services provided to individuals in connection with the prevention, diagnosis or treatment of illness and the protection or improvement of public health. The NHS Commissioning Board is accountable to the Secretary of State and has broad over-arching duties to promote a comprehensive health service in England (except in relation to public health) and to exercise its functions in connection with CCGs who are responsible for commissioning services.

Complaints

There is a specific provision in the Act for complaints to be made about how the local authority exercises its public health function and the provision of its services. The complaint may be considered by the local authority which is the subject of the complaint, an independent panel, any other person or body. This looks similar to many local authorities' current corporate complaints procedures. If that is correct then it puts an even greater burden on the complaints officers.

The potential for claims

In summary, whilst local authorities become directly responsible to protect and improve public health, the NHS remains responsible through the Secretary of State for the prevention, diagnosis and treatment of illness. On the face of it there is unlikely to be the risk of clinical negligence claims against local authorities but does the Act create the potential for new types of claims against local authorities? What are the risks?

Although there are clear duties on local authorities in relation to health improvement and protection it is not obvious what specific claims may arise from a failure to discharge those duties.

However, in broad terms local authorities may face claims where they:

• fail to identify public health risks and put in place suitable protection, resulting in personal injury or disease;
• fail to assess the needs of the local population correctly and provide suitable health improvement measures;
• fail to encourage proper integration between healthcare services e.g. claims arising from a lack of integration between NHS and social workers;
• commission new public health services through private bodies that do not have the necessary standard of clinical governance arrangements in place.

Andrea Ward on DD +44 (0)191 2339 761 or email andrea.ward@dwf.co.uk