Sex, drugs and alcohol – local authorities’ new public health role

What do the Government's healthcare reforms mean for local authorities? Jennifer Richardson explains.

The controversial Health and Social Care Act 2012 has continually been in the press since it was first published as a Bill on 19 January 2011. The focus and outcry has been on the NHS and what it means for the various organisations and people within it; however, the Act has functional and financial implications for local authorities, particularly in relation to how they will be expected to commission public health services in the new regime, and this seems to have been somewhat overlooked.

To say the Health and Social Care Bill was not popular seems to be an understatement. On 6 April 2011 the Government launched a “listening exercise” on how the Bill might be improved, employing the NHS Future Forum to oversee this exercise. The Forum reported on 13 June 2011 and the Bill was then substantially amended several times. After a protracted passage through the Lords, it finally received Royal Assent on 27 March 2012.

Public Health Outcomes Framework

Part 1 of the Act contains ambitious reforms in relation to public health, making local authorities responsible for commissioning a large range of services with a focus on outcomes through the Public Health Outcomes Framework, complete with key indicators.

“Public health services” encompass services relating to obesity, misuse of drugs, alcohol, sexually transmitted infections and those services which deal with threats from infectious disease. The Government believes that if these services are improved, the heavy cost created by these types of issues will diminish and public spending overall will be reduced. As such the Government introduces a new outcomes based public health regime through the Act.

The little outcry that there has been about the proposed role of local authorities has mainly focused on the commissioning of abortion services (an idea now scrapped). It is surprising that, other than within local authority circles, more has not been made of what is proposed. The new regime will have significant resource implications for local authorities, who will not only commission services but also analyse the population’s health needs, and the functional and financial impacts, even with a ring-fenced budget, should not be underestimated.
 
The provisions in the Act

Section 10 sets out the Secretary of State’s duty as to the protection of public health and deals specifically with a list of functions, including the conduct of research, the provision of technical services, vaccination, immunisation and screening, training, etc.

Section 11 deals with the improvement of public health and confers functions on local authorities as well as the Secretary of State although a local authority’s duty is to the people of its area. It inserts a new s.2B into the National Health Service Act 2006 that lists specific actions, including the provision of information, facilities and financial incentives designed to promote healthy living.  

In exercising its public health functions, a local authority must have regard to any document published by the Secretary of State. This will include the proposed Framework and may include guidance. The quality and safety of health care provision seems set to be addressed through other parts of the new Framework, including the Secretary of State’s duty as to outcomes, the role of Healthwatch England and the Health and Wellbeing Boards.

What do the proposals do?

The Act introduces a new public health regime, where local authorities will take the lead for improving public health and co-ordinating local efforts to protect the public’s health and wellbeing with the use of a ring-fenced public health grant. Shadow allocations of the grant will be made in 2012/13 to help local authorities prepare for taking formal responsibility for this in 2013/14. For some local authorities who have Section 75 Agreements in place in relation to public health this role will be nothing new, but for others it signals a far greater change.

The Act imposes new duties on the Secretary of State in relation to public health and provides for local authority commissioning of public health services, a local authority Director of Public Health role and the establishment of Public Health England (a new executive agency of the Department of Health). The ethos seems to be letting local authorities commission the correct and required services for their local populations within the Framework.

The NHS will continue to play a complete role in providing care, ensuring clinical contact counts and reducing inequalities while the Government’s Chief Medical Officer will continue to provide independent advice to the Secretary of State.

The idea is that local authorities will promote the health of their population, taking on the commissioning of public health services, putting plans in place to protect their population and providing public health advice to NHS commissioners. This, coupled with their role on the health and wellbeing board where they will lead the development of joint strategic needs assessments and joint health and wellbeing strategies, will ensure a streamlined approach by the NHS and the local authority in relation to public health.

Director of Public Health

Local authorities, in conjunction with Public Health England (acting on behalf of the Secretary of State), are expected to appoint a Director of Public Health as the lead figure, although in reality some local authorities already have made such an appointment in anticipation of the Bill becoming law.

The Director of Public Health will have responsibility for the local authority’s public health services and the person appointed must be specially trained and qualified. The local authority has the power to terminate the appointment but must consult Public Health England before doing so (but note they do not require consent to do so).

Essentially the Director of Public Health is the authority’s lead officer for health. The post is added to the list of statutory chief officers in s.2 of the Local Government and Housing Act 1989 and so is politically restricted, giving it a status similar to the Director of Children’s Services and the Director of Adult Social Services. The role incorporates health protection with local authorities required to take steps to put plans in place to protect their population from threats arising or happening. In the role the Director should give expert guidance on local priorities, work with the Police and Crime Commissioners as relevant to community safety, champion health across the whole of the local authority and hold the public health purse strings on a day to day basis.

The functions of the Director include dealing with the local authority’s public health functions under the new s.2B of the 2006 Act. There is also a power for the Secretary of State to add to the functions by making regulations. The Director must prepare an annual report on the health of the people in the area, which the local authority must publish.

The Secretary of State will have powers in relation to how Directors of Public Health and their staff are employed, and there will be statutory guidance on the Director’s responsibilities.

A last minute amendment to the Bill now means that local authorities must have regard to guidance given by the Secretary of State in relation to its Director of Public Health, including guidance as to appointment and termination of appointment, terms and conditions and, management. In addition, if the Secretary of State (presumably through Public Health England) has concerns about the Director, he can require the local authority to carry out a review and report back.

Local authorities have expressed concerns regarding the hands on role the Secretary of State is to play. Given that localism is meant to be at the heart of the new regime, it is hard to see how this level of central control sits beside this concept.

Transfer of Commissioning Responsibilities

Under the new Framework, local authorities will become responsible for commissioning a broad range of public health services, ranging from tobacco control and smoking cessation services to tackling social exclusion. On a practical level local authorities will be inheriting knowledge of these services as Primary Care Trust staff working in public health will be transferring over to local authorities. Commissioning local services is not new to local authorities. Perhaps this is why there has been little outcry, but some of the types of services have nuances that local authorities will not be used to, and all of the services as linked to the new Outcomes Framework may well be very different to the services local authorities have traditionally handled.

The public health services that local authorities are to commission are split into mandated services and discretionary services. The number of mandated services is small and includes sexual health services, NHS Health Checks, National Child Measurement Programme, providing advice to NHS Commissioners and ensuring plans are in place to protect public health. Discretionary services will be guided by the Framework, a local joint strategic needs assessment and a joint health and wellbeing strategy. Local authorities can also choose to commission further services under their health improvement duty and innovation is encouraged. The idea is that locally-driven solutions lie at the core of localism and by local authorities commissioning these services they will cater for the local population’s needs.

In exercising their commissioning duties local authorities need to commission with due regard to the most disadvantaged communities and are encouraged to develop diverse provider models working closely with what will be the newly established Clinical Commissioning Groups which are set to replace Primary Care Trusts. Public Health England is expected to support local authorities with their specialist skills, information at a level that would not be practicable to replicate in each local authority.

Quality and safety of health care provisions

Quality and safety control falls to Healthwatch England and Health and Wellbeing Boards.

Healthwatch England is established by Part 5 of the Act. It is a committee of the Care Quality Commission and must exercise on behalf of the Commission the functions set out in the Act. These include providing support to Local Healthwatch organisations (the replacement for Local Improvement Networks (LINks)), which are to be set up for each local authority.

The Bill originally allowed local authorities to decide for themselves how these organisations would be structured. However, following changes in the House of Lords, the Act now amends the LINks provisions in the Local Government and Public Involvement in Health Act 2007 to provide that the new Local Healthwatch organisations (LHOs) must be social enterprises with a corporate structure; they must also meet any other criteria that the Secretary of State sets in regulations. Entities that are currently excluded from being LINks, along with the National Health Service Commissioning Board, are also excluded from being LHOs.

LHO must have regard to any guidance from the Secretary of State on managing conflicts of interest when making arrangements or carrying out their activities. The Act also provides that LHOs may contract out some or all of their activities.

Under s.194, a local authority must establish a Health and Wellbeing Board, with a membership of specified key stakeholders who all have health functions. The local authority has power to add to the membership but not to reduce it (although joint working with another authority is possible). The Board is a committee of the local authority, meaning all the rules and regulations which apply to committees will be applicable to it and how it exercises its functions.

For those members of staff transferring to local authorities this take some getting used to as the cultural approach will be entirely different. The Board is to have the responsibility of delivering the local authority’s functions of making a strategic needs assessment and a health and wellbeing strategy for the area. It will also have a duty to encourage integrated working in the provision of health and social care in the area and may have other functions conferred on it by the local authority.

The goal is integration. Despite the numerous bodies and roles being created, the Government wants a streamlined and consistent approach with localism at its centre.

Summary

The public health landscape is changing which is not surprising given the need for sustainable and affordable public services. We have an increasing population and the burden of disease is heavy and costly. The overall goal of the public health regime under the Act is to increase life expectancy and to reduce health inequalities.

The programme the Government seeks to put in place has outcomes at its heart. Whilst it is commendable that these have been set to encourage real progress it remains to be seen whether outcomes will mean public health services become tick box services where commissioners are more focused on hitting the required goal than achieving any greater good or if, actually, this amounts to the same thing.

Further, the new structure on first glance is a little confusing with a new DH executive, Public Health England, Healthwatch, the Health and Wellbeing Board in amongst transferred functions and new roles. It remains to be seen how successfully local authorities will be in meeting outcomes whilst the regime beds in. The shadow budget means at the very least local authorities have the time, and the financial ability, to prepare for the new regime prior to their new functions taking full swing – although the level of budget for public health is now anticipated to be much smaller than the level local authorities thought they would receive (and require), so this will be a challenge.

Statutory guidance will be published on the role of the Director of Public Health, mandated services, health protection planning and health protection incidents. How similar this ends up being to what was originally proposed is up for debate! However, local authorities need to prepare now as taking the lead on the ambitious public health programme will not be easy.

Jennifer Richardson is a Solicitor in the Commercial and Infrastructure team at Bevan Brittan. She can be contacted on 0870 194 3096 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..