NHS bill: “hands-off clause” advice

A few months ago, we asked one of the legal experts we funded for his view on the “autonomy clause”, or Clause 4 in the bill.

The full advice is here, but below are the main points on the “hands-off clause”.

Our legal advice:

30. However, what is proposed to be a new section 1C of the NHS Act 2006, does seem to me to be of importance. This would read

―1C Duty as to promoting autonomy
In exercising functions in relation to the health service, the Secretary of State must, so far as is consistent with the interests of the health service, act with a view to securing—

(a) that any other person exercising functions in relation to the health service or providing services for its purposes is free to exercise those functions or provide those services in the manner that it considers most appropriate, and

(b) that unnecessary burdens are not imposed on any such person.”

31. Therefore, so long as the Secretary of State does not think that it is inconsistent with the interests of the NHS, s/he must positively act to allow any other person exercising health service functions to do so in the way that that person thinks appropriate. This is what I described in conference as a “hands off” clause. Although the Secretary of State keeps some form of oversight, it is the other persons and bodies delivering the health service whose views are important as to how those services are to be delivered. This is further explained in the Explanatory Notes as follows

74. This clause seeks to establish an overarching principle that the Secretary of State should act with a view to promoting autonomy in the health service. It identifies two constituent elements of autonomy: freedom forbodies/persons in the health service (such as commissioning consortia or Monitor) to exercise their functions in a manner they consider most appropriate (1C(a)), and not imposing unnecessary burdens from those bodies/persons (1C(b)). The clause requires the Secretary of State to act with a view to securing these aspects of autonomy in exercising his functions in relation to the health service, so far as is consistent with the interests of the health service.

75. This duty would therefore require the Secretary of State, when considering whether to place requirements on the NHS, to make a judgement as to whether these were in the interests of the health service. If challenged, the Secretary of State would have to be able to justify why these requirements were necessary.

32. This kind of wording is often used in statutes to mean that a public body only has the power to act when steps to be taken are “really needed” or “essential”, rather than because the public body thinks something is desirable or appropriate. A court looking at this kind of wording would expect the public body (the Secretary of State in this case) to demonstrate why no other course of action could be followed, which is a high test to meet.

33. I think the reference to potential challenges at the end of this note is significant and reflects the limit of the Secretary of State’s powers. If the Secretary of State attempts to use his or her powers to impose requirements on commissioning consortia, for example, then there could well be a judicial review challenge from a consortium which opposed the requirements on the basis that they infringed the principle of autonomy in the new section 1C and could not be justified as necessary or essential. This approach replaces the, more or less, unfettered power that the Secretary of State has to make directions currently to be found in s8 NHS Act 2006 (as explained above), with a duty not to interfere unless essential to do so. It is also noteworthy that the same “autonomy” or “hands off” duty is also placed on the NHS Commissioning Board, by what would be a new s13E of the NHS Act 2006 (and it is, of course, the Board who will have closer contact with commissioning consortia than will the Secretary of State).