The new role for local authorities in public health
Lee Parkhill summarises the key elements of the new legal framework for public health and highlights some issues for local authorities to consider.
The changes introduced by the Health and Social Care Act 2012 were described as ‘unprecedented’ reform of the NHS. Local government officers and lawyers will know that the transfer of public health functions to local authorities was one of the changes introduced by the Act but, with so much focus on the changes to NHS structures, have local authorities yet had an opportunity to fully consider the scale of their new functions?
Summary of the primary legislation
The 2012 Health and Social Care Act’s changes are introduced by a series of amendments to the National Health Service Act 2006. The most significant provision is s. 12 of the 2012 Act which inserts a new section 2B into the 2006 Act. The new s. 2B gives each local authority a duty to take such steps as it considers appropriate to improve the health of the people in its area. This section also gives Secretary of State a power to take steps to improve the health of the people of England. The section also gives examples of health improvement steps that either local authorities or the Secretary of State could take. These include giving information, providing services or facilities to promote healthy living and providing incentives to live more healthily.
In general terms the 2012 Act confers on local authorities the function of improving public health and gives local authorities considerable scope to determine what actions it will take in pursuit of that general function. However, local authorities do not have a completely blank canvas. A new s. 6C of the 2006 Act empowers the Secretary of State to make regulations as to the exercise by local authorities of public health functions. Regulations made under this provision ‘mandate’ local authorities to take certain steps in pursuit of their public health functions. The Secretary of State can also delegate to local authorities some of his public health functions.
A new s. 7A of the 2006 Act permits the Secretary of State to make ‘arrangements’ with a local authority (or a CCG or the NHS National Commissioning Board) under which the local authority carries out some of the Secretary of State’s public health functions. A new s. 73B of the 2006 Act empowers the Secretary of State to provide guidance to local authorities in respect of their public health functions and local authorities must have regard to any such guidance. The 2012 Act also introduced a general duty of cooperation between the Secretary of State and bodies exercising public health functions (s. 247B).
One other significant change to be aware of is the duty now placed on local authorities to, in respect of their health functions, have regard to the NHS Constitution (see the amendments set out from para. 173 of Schedule 5 to the 2012 Act, amending s. 2 of the Health Act 2009). Challenges to the procedures followed by local authorities when reaching policy decisions are relatively common. Authorities will need to ensure that they remember to add the NHS Constitution (together with any statutory guidance issued by the Secretary of State under s. 73B) to the list of matters requiring consideration when exercising their new public health functions.
Directors of Public Health
Section 30 of the 2012 Act inserted a new s. 73A into the 2006 Act which requires the appointment of a Director of Public Health (‘DPH’). The appointment is made jointly by the local authority and the Secretary of State. Section 73A sets out the scope of the role; the DPH is responsible for a wide range of matters including the authority’s functions under s. 2B of the 2006 Act. A DPH is a statutory member of the Health and Well Being Board. Section 73B(5) provides that the DPH must prepare an annual report on the health of the people in their area. Subsection (6) places a duty on the local authority to publish that report.
Management of the DPH’s role
In October 2012 the Department of Health published guidance on the roles of DPHs: ‘Directors of Public Health in Local Government - Roles, responsibilities and context.’ At 5.3 this guidance states that there should be ‘direct accountability’ between the DPH and the Chief Executive and that the DPH should have direct access to elected members. This document gives guidance on the functions of the DPH and also sets out how the appointment process should work – with Public Health England advising the Secretary of State on proposed appointments.
The local authority has the power to terminate a DPH’s employment but must consult the Secretary of State before doing so (s. 73A(5) and (6). Section 73A(7) provides that local authorities must have regard to any guidance issued by the Secretary of State in respect of the appointment and termination of appointment, terms and conditions and management of directors of public health.
The Act also makes provision for the Secretary of State to direct a local authority to review and investigate a DPH’s discharge of any of the Secretary of State’s functions which have passed to the DPH either because of a delegation or because an ‘arrangement’ under s. 7A has been entered into.
The new law – the regulations
The secondary legislative provisions which provides more of the detail of the new arrangements are, unfortunately, not set out in one place. The most relevant regulations include: The National Health Service Bodies and Local Authority (Partnership Arrangements, Care Trusts, Public Health and Local Healthwatch) Regulations 2012, The Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2013 and the Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013.
Mandated public health services
The Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2013 require local authorities to provide certain public health services. The public health services which local authorities must provide are:
- The National Child Measurement Programme
- Health checks
- Open access sexual health services
- Public Health Advice Service to CCGs
The National Child Measurement Programme
Regulation 3 requires local authorities to undertake the National Child Measurement Programme. The regulations require the measurement of all children who are registered at a maintained school or an academy. Children must be weighed and measured when aged 4-5 and 10-11.
Health checks
Regulation 4 requires local authorities to provide, or secure the provision of, ‘health checks’ for all people in their area aged between 40 and 74. Health checks are to be offered to eligible individuals (eligibility is defined by the Regulations) and, in general terms, a check should be offered to individuals once every five years. The local authority is also required to act ‘with a view to securing continuous improvement in the percentage of eligible persons… participating in the health checks’.
Open Access Sexual Health Services
Regulation 6 mandates the provision of, or the making of arrangements to secure the provision of, open access sexual health services. The Department of Health has provided some additional advice to local authorities on this particular function, see: ‘Commissioning Sexual Health services and interventions, Best practice guidance for local authorities’ dated 21 March 2013. The Guidance highlights some of the issues that local authorities need to be aware of when commissioning these services including the particular confidentiality requirements which relate to sexual health records.
Public Health Advice Service
Regulation 7 requires local authorities to provide, or make arrangements to secure the provision of, a public health advice service (‘PHAS’) to any CCG whose area falls wholly or partly within the authority’s area. The PHAS is to consist of the provision of such information and advice to a CCG as the local authority considers is necessary or appropriate with a view to protecting and improving the health of people in the local authority’s area. In performing this role the local authority is discharging its duty to promote the health of people in its area and the Secretary of State’s function of protecting the health of the public.
Complaints about local authority public health functions
The NHS Bodies and Local Authorities (Partnership Arrangements, Care Trusts, Public Health and Local Healthwatch) Regulations 2012 make provision in respect of complaints about local authority public health functions. The Regulations apply to complaints about the local authority’s actions and those of ‘service providers’ providing a services pursuant to a local authority’s public health functions. The Regulations require the designation of a ‘responsible person’ (in the case of local authorities this is the Chief Executive) and a ‘complaints manager’. The Regulations go on to make detailed provision in respect of the duty to handle complaints.
Issues for local authorities to consider
Clearly local authorities now have significant additional duties to add to their already wide ranging list of functions. While there are, without doubt, great opportunities presented by the new regime, it also brings with it a number of challenges for local authorities.
Commissioning of healthcare
Arguably, one of the most significant challenges presented to local authorities by the new public health regime is the task of commissioning clinical services. This is new territory for local authorities; the commissioning of clinical services by local authorities has been expressly ruled out in some earlier legislation, e.g. s. 49 of the Health and Social Care Act 2001 which prohibits local authorities from providing, or arranging the provision of, nursing care as a social care service.
Local authorities will need to ensure that they have the resources to undertake this new task. In respect of contracting for clinical services some help may be derived from the ‘2013/14 NHS Standard Contract’ (see the ‘2013/14 NHS Standard Contract, Technical Contract Guidance’, produced by the National Commissioning Board, which (at para 2.3) advises that local authorities might want to use the template contract when commissioning services from NHS providers). The Department of Health has also published a template contract which it suggests local authorities might want to use when commissioning public health functions – see the ‘Public Health Services Contract’ (gateway reference: 18533) and associated guidance notes.
Relationship between public health and other duties of the authority
While the new public health functions are not framed in terms of new rights for individuals it may be that local authorities see individuals placing reliance on the general public health functions when seeking specific services. Also, the relationship between public health functions (particularly the general duty now placed on local authorities to take steps to improve the health of people in their areas) might not rest easily with the role that authorities have in limiting access to services, e.g. for those subject to immigration control.
The UK Faculty of Public Health has expressed concern about the restrictions on failed asylum seekers accessing free NHS care yet local authorities now have both the function of promoting public health and the function of applying those restrictions on accessing some healthcare services (see the amendments to the NHS (Charges to Overseas Visitors) Regulations 2011 which now place on local authorities the function of, potentially, restricting access to some clinical services which they provide).
An increase in complaints?
With new functions, and an express statutory duty to manage complaints about their new functions (and those of service providers) it is perhaps only reasonable for local authorities to expect an increase in the number of complaints they must deal with. While the burden is eased to an extent by the fact that the new complaints regime largely mirrors the existing process for social care complaints (under the Local Authority Social Services and NHS Complaints) (England) Regulations 2009) the new sphere of activity is still likely to demand more local authority time dealing with a wider range of complaints.
Lee Parkhill is a barrister at 4-5 Gray’s Inn Square specialising in public law, healthcare and community care. He can be contacted on 0207 404 5252 or by This email address is being protected from spambots. You need JavaScript enabled to view it..
For a more comprehensive summary of the new law relating to the public health functions of local authorities, you can access a briefing note on the website of 4-5 Gray’s Inn Square Chambers by clicking here.