On 1 April 2013 a number of changes will be introduced by the Health and Social Care Act 2012 which aim to improve the quality of services offered by the NHS and help people make informed choices about their health and social care.
Jess Connelly, a Solicitor in the Court of Protection team looks at how the changes will affect the care and support of mentally disordered and vulnerable adults. Jess has represented many vulnerable adults and their family members and has particular experience in advising in cases involving deprivation of liberty.
The key changes
The changes taking effect on 1 April 2013 represent the largest shake up of the public health structure since its inception in 1948, as most of the responsibilities for commissioning health services will be taken away from Central Government and put into the hands of clinicians:
- Local Authorities will have public health responsibility for issues such as anti-smoking, obesity, vaccinations etc.
- Strategic Health Authorities and Primary Care Trusts (PCTs) which are currently responsible for organising and buying care for patients will be replaced by local Clinical Commissioning Groups (CCGs). CCGs will largely be made up of GPs, supported by a new body called the NHS Commissioning Board, which is to take on its full statutory functions from 1 April 2013.
- New Regulations set overriding objectives to secure the needs of the people who use the services and improve the quality and efficiency of the services.
- Competition between providers will be encouraged, but integration of services (both health and social) is also required. Providers will be treated equally and in a non discriminatory manner.
- Failure to comply with the Regulations can result in action by ‘Monitor’ (the body that currently regulates NHS foundation trusts). Monitor will be developed into an economic regulator to oversee aspects of access and competition in the NHS sector regulator. The body was established in July 2012 and we are yet to see to what extent this will drive up standards.
From the perspective of health and social care provision, it is encouraging to see a duty of co-operation with the Care Quality Commission (CQC) and that the role of the CQC is strengthened.
The appointment of Mental Health Commissioners has meant that mental health hospitals are now being robustly investigated and the CQC’s 2011/2012 Annual Report highlights where improvements are necessary. Such thorough, informative and useful reports of other care providers and hospitals would be welcomed and perhaps the changes brought in by the Act will ensure this.
Prevention of mental illness to be promoted too
Section 1 of the Act, which has been in force since 27 March 2012, provides that the health service must:
‘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.‘
This replaces the similar duty contained within the National Health Service Act 2006, which intended to secure improvement, but not to prevent, mental illness. The difference in wording is minor, but recognises the importance of treating mental illness, before individuals reach crisis point.
The reality is that a large number of mental health hospitals are being closed and increasingly only the most unwell are being provided with treatment. If this change can prevent so many crises happening, then the mental health system could perhaps start to maintain itself more evenly.
In cases brought by patients trying to enforce duties set out in the 2006 Act, the Courts have generally not interfered with how these ‘target duties’ ought to be fulfilled, other than considering whether a PCT (on behalf of the Secretary of State)Secretary of State had acted unlawfully in public law terms.
So, in terms of individuals being able to enforce these duties, the 2012 Act may not be of much help, but in recognising that prevention is better than cure, this is a step in the right direction.
If you have any queries in relation to the issues raised in this blog, please contact Jess Connelly who will be pleased to provide further advice and assistance.