News Analysis: Health and Social Care Act 2022

1.What are the main changes being introduced which clinical negligence practitioners should be aware of?

In 2019 NHS England and NHS Improvement (NHSEI) were asked to identify any changes, including changes to legislation, that would help it deliver the ambitions in the NHS Long Term Plan. NHSEI made recommendations, one of which was to transform the ‘system architecture of the NHS to increase coordination of services through the creation of integrated care systems’. The Health and Care Act 2022, which received Royal Assent on 28^th April 2022, arises (at least partially) out of this ambition. The Act is a 187 section, nineteen-scheduled monolith; a heavily amended collection of wide-ranging reforms to the operation of the NHS (among other things) which will, in due course, be supported by secondary legislation, statutory guidance  and good practice guidance, all of which will need to be kept in mind by practitioners as it is published and updated.

Key provisions include:

• Renaming (Part 1): the NHS Commissioning Board and most of the functions of NHS Improvement will be consolidated to NHS England (‘NHSE’).
• Integrated Care Systems (Part 1): Integrated Care Boards will be established, which, together with Integrated Care Partnerships, will be responsible for the provision of hospital and primary care services. Clinical Commissioning Groups will be absorbed into this system. Some concerns have been expressed that since it is up to NHSE to allocate patients to each ICB, the latter might be able to challenge allocations and thereby in effect to select patients, with the effect that some groups might find themselves excluded from care. Further, the 2012 iteration of the Act contained a clause to the effect that if an individual needed emergency treatment when outside their CCG area, (s)he could access it without difficulty. The 2022 iteration of the Act contains no such guarantee, with the potential effect that an ICB might not be required to arrange provision of emergency services for a person outside its responsibility, but who happened to fall ill or to be injured outside his or her ‘home’ area.
• Investigation (Part 4): a Health Services Investigation Body with power will be set up to investigate incidents occurring in England during the provision of health services and which have or may have implications for the safety of patients. These investigations are not intended to attribute blame, or to establish or preclude civil or criminal liability; but just as inquests and Health and Safety Executive investigations may assist in establishing the facts necessary to bring or defend claims, so HSIB reports may prove to be of assistance to practitioners in this area (although its reports will not be admissible in civil proceedings, save with the permission of the High Court).
• Care capping (Part 6): the Act introduces a new £86,000 cap on the amount anyone in England will need to spend on their personal care over their lifetime. Only personal contributions to the cost of care will count towards the cap; means-tested payments made by the local authority will not be counted.
• Review (Part 6): the Secretary of State for Health and Social Care is to conduct a review of the into the causes of disputes between (on the one hand) persons with parental responsibility for a critically ill child and (on the other) persons responsible for the provision of care or medical treatment for the child as part of the health service in England, such review to be published within a year. It is to be hoped that this review will be the first step in understanding why these disputes arise and how better to deal with them than at present.
• Regulation (Part 6): the Act grants the Secretary of State for Health and Social Care the ability to regulate to licence those providing non-surgical cosmetic procedures such as those involving injection or application of a substance, insertion of needles into the skin, insertion of thread under the skin, or application of light, electricity, cold or heat.

2. How does this legislation fit in with other clinical negligence developments?

The Act has been in the making for a decade or more, in various forms; in that sense it forms the backdrop to other developments in this area, but it does not affect clinical negligence practitioners directly other than in the ways set out above. Of far greater concern to practitioners will be the other innovations more recently proposed, for example the extension of the fixed costs regime, and even the removal of fault-based compensation altogether. The Act merely provides the framework within which practitioners can continue to work much as before.

3. What are your predictions for future developments?

In terms of the areas covered by the Act, it will be very interesting to see how the Integrated Care System works, and whether the concerns already raised in respect of coverage are justified. The Health Services Investigation Body is a development to be welcomed, but much will depend on how assertively the Body behaves and to what extent it is prepared to investigate incidents which might give rise to a civil claim. The area of cosmetic procedures is also one to watch; there has been a massive increase in providers offering these procedures, and the consequences of negligence in their provision can be devastating to individuals. It is to be hoped that the development and promulgation of a rigorous licensing system and stringent good practice guides will go some way to preventing these incidents.

This article was first published by Lexis Nexis