ocal authority statutory functions with regard to the provision of health services.
This article explains the extensive legislative change in recent years to the statutory duties on local authorities with regard to health services through the Health and Social Care Act 2012 (HSCA 2012) ('the 2012 Act'), under which additional duties have been imposed on local authorities in terms of:
- the scope of the services which they are responsible for commissioning or arranging; and
- new obligations to promote integration of services across local authority and NHS boundaries.
Duties with regard to public health services under the 2012 Act
The re-organisation of the health sector which was carried out in the 2012 Act amended the National Health Service Act 2006 (NHSA 2006) ('the 2006 Act') by transferring responsibility for a number of areas of health service provision from Primary Care Trusts (which were abolished by the 2012 Act) to local authorities and the Secretary of State for Health. This change was based on the premise that:
- local government is best placed to influence many of the wider factors that affect health and well-being and to assess the public health needs of people within their own geographical area; and
- central government is best placed to understand the needs of the national population as a whole and give general guidance on public health issues relevant to all local authority areas.
The Secretary of State exercises his functions through an executive agency of the Department of Health known as 'Public Health England'.
In this article, unless otherwise stated, 'local authority' means a county council or a district council in a district for which there is no county council, and also the London Boroughs, the Corporation of London and the Isles of Scilly Council. It refers only to such authorities within England.
General public health duty on local authorities to improve the health of their populations
Section 2B(1) of the 2006 Act places a duty on local authorities to take such steps as they consider appropriate to improve the health of people in their area, which includes:
NHSA 2006, s 2B(1)
- providing information and advice;
- providing services or facilities designed to promote healthy living (whether by helping individuals to address behaviour that is detrimental to health or in any other way);
- providing services or facilities for the prevention, diagnosis or treatment of illness;
- providing financial incentives to encourage individuals to adopt healthier lifestyles;
- providing assistance (including financial assistance) to help individuals to minimise any risks to health arising from their accommodation or environment;
- providing or participating in the provision of training for persons working or seeking to work in the field of health improvement;
- making available the services of any person or any facilities; and
- providing grants or loans on such terms as the local authority considers appropriate
This is a mandatory duty to take appropriate steps. On the face of the legislation there is a high degree of discretion for an individual authority as to the nature and extent of those steps. However, s 6C(2) of the 2006 Act gives the Secretary of State a power to impose (in Regulations) requirements on local authorities as to how they exercise their functions under s 2B(1). So far only one set of such requirements has been issued, in the Local Authorities (Public Health Functions and entry to Premises by Local Healthwatch Representatives) Regulations 2013, SI 2013/351, which are discussed further below.
NHSA 2006, s 6C(2)
Public health functions delegated from the Secretary of State to local authorities
The Secretary of State has:
- a power to take such steps as he considers appropriate to improve the health of the people of England (s 2B(2) of the 2006 Act), which include the same steps which may be taken by a local authority to fulfil its duty under s 2B(1); and
NHSA 2006, s 2B(1)-(2)
- a duty to undertake protective and preventative work on public health matters which require a national overview, ie 'such steps as he considers appropriate for the purpose of protecting the public in England from disease or other dangers to health' (s 2A of the 2006 Act). Section 2A(2) confirms that these steps may include:
NHSA 2006, s 2A
- the conduct of research or such other steps as the Secretary of State considers appropriate for advancing knowledge and understanding
- providing microbiological or other technical services (whether in laboratories or otherwise)
- providing vaccination, immunisation or screening services
- providing other services or facilities for the prevention, diagnosis or treatment of illness
- providing training
- providing information and advice; and
- making available the services of any person or any facilities
The Secretary of State can delegate his public health functions under ss 2A(1) and 2B(2) to local authorities under two mechanisms:
- under s 6C(1) of the 2006 Act, the Secretary of State can use regulations to require local authorities to exercise any of the Secretary of State's public health functions in relation to people in their area. Such regulations can prescribe specific steps to be taken by the local authorities and require that they exercise other functions of the Secretary of State which can be exercised in connection with his public health role (including his powers under s 12 to make arrangements with other public bodies and voluntary organisations to provide or assist with anything the Secretary of State can provide under ss 2A or 2B or Sch 1 to the 2006 Act).
NHSA 2006, ss 2A, 2B, 6C(1), (4), (5), 7A, Sch 1
When the Secretary of State exercises this power, the liability for the performance of the functions passes completely to the local authority (s 6C(5)), although the Secretary of State could 'step in' to perform his functions himself at any time (section 6C(4));
- under s 7A of the 2006 Act, the Secretary of State has power to arrange for a local authority, Clinical Commissioning Groups ('CCGs') and the NHS Commissioning Board ('NHSCB') to exercise any of his public health functions
NHSA 2006, s 7A
In practice, the power in s 6C(1) has only been exercised once, through the Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2013, SI 2013/351 (see below).
Specific public health duties of local authorities
Local authorities have a number of statutory functions under the following legislation:
- Public Health (Control of Disease) Act 1984
- The 2006 Act as follows:
- powers and duties as to the medical inspection and treatment, dental inspection and treatment, and the weighing and measuring of school children, including school nursing services (Sch 1 to the 2006 Act)
NHSA 2006, Sch 1
- duties as to dental public health (s 111 of the 2006 Act and Regulations 16-18 of the NHS Bodies and Local Authorities (Partnership Arrangements, Care Trusts, Public Health and Local Healthwatch) Regulations 2012, SI 2012/3094)
NHSA 2006, s 111
SI 2012/3094, regs 16-18
- responsibility to co-operate with health bodies and the prison service with a view to improving the way in which it exercises its health functions in relation to securing and maintaining the health of prisoners (s 249 of the 2006 Act)
NHSA 2006, s 249
- the Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2013 (SI 2013/351) ('the Public Health Regulations'). These delegate a number of the Secretary of State's public health functions under s 2A of the 2006 Act to local authorities (under the power in s 6C of the 2006 Act). They also prescribe steps which must be taken by authorities in the exercise of their own direct public health functions under s 2B of the 2006 Act. The key duties imposed by the Regulations are:
NHSA 2006, ss 2A, 2B, 6C
- requirements as to how an authority should perform its functions under Sch 1 of the 2006 Act with regard to weighing and measuring of children (reg 3)
NHSA 2006, Sch 1
SI 2013/351, reg 3
- requirements to provide/make arrangements for provision of health checks to certain eligible persons, as part of the exercise of an authority's functions under section 2B of the 2006 Act. 'Eligible persons' are those with particular health conditions or diseases, or carrying particular risks of developing health issues (regs 4 and 5)
SI 2013/351, regs 4-5
- a requirement on each authority to provide/make arrangements for provision of 'open access sexual health services in its area' (reg 6(1)). This requirement is imposed both as:
SI 2013/351, reg 6(1)
- a delegation of the Secretary of State's function of arranging for the provision of contraceptive services (under Sch 1 of the Act). This must include ensuring that:
(a) advice on, and reasonable access to, a broad range of contraceptive substances and appliances; and
(b) advice on preventing unintended pregnancy
are made available
It excludes any duty to provide vasectomy or sterilisation procedures, save for provision of preliminary advice on them as contraceptive methods. (reg 6(1)(a), (3) and (4)).
SI 2013/351, reg 6(1)(a), (3), (4)
In exercising these functions an authority is also empowered to exercise the Secretary of State's power under ss 2 and 12 of the 2006 Act (reg 2);
NHSA 2006, ss 2, 12
SI 2013/351, reg 2
- an instruction as to how authorities should perform their own functions under s 2B by undertaking activities 'for preventing the spread of sexually transmitted infections, treating, testing and caring for people with such infections; and notifying sexual partners of people with such infections' (reg 6(1)(b)). This does not include services for people with HIV (reg 6(5)). Open access services are defined as 'services that are available for the benefit of all people present in the local authority's area' (reg 6(2))
SI 2013/351, reg 6(1)(b), (2), (5)
- a requirement on each authority to provide/make arrangements for provision of a public health advice service to CCGs whose area falls wholly or partly within the authority's area (reg 7). A public health advice service is one which provides such information and advice to CCGs as the authority 'considers necessary or appropriate, with a view to protecting and improving the health of the people in the authority's area' in order to assist CCGs in their duties and powers under ss 3 and 3A of the 2006 Act. This requirement is expressed as being a delegation of the Secretary of State's powers to the extent that the service relates to protection of health of people in the area and as prescribed steps to be taken by the authority in exercising its own functions under s 2B of the 2006 Act, to the extent that the service relates to improving the health of people in the area. The matters to be covered by the public health advice service are to be kept under review by the local authority, but the Regulations state that they shall be determined having regard to the needs of the people in the local authority's area; and by agreement between the local authority and the CCG(s) to which the advice service (or by the local authority itself if there is no such agreement). Regulation 7(6) gives examples of the types of matter which may be covered by the advice service
SI 2013/351, reg 7(6)
NHSA 2006, ss 2B, 3, 3A
- requirements as to provision of information and advice to 'responsible persons' and 'relevant bodies' to promote their preparation of, or participation in, appropriate local health protection arrangements (reg 8).
SI 2013/351, reg 8
'Responsible persons' are an NHS body, a Chief Constable of a police force, a fire and rescue authority, district councils in the council's area and Public Health England.
'Relevant bodies' means a body whose activities, in the opinion of the local authority, have a significant effect upon, or whose activities may be significantly affected by a threat to, the health of individuals in the local authority's area. They can include schools (maintained and not maintained) providers of social care services, voluntary organisations, registered charities and businesses.
These requirements are a delegation of the Secretary of State's public health functions under s 2A of the 2006 Act. The regulations define 'local health protection arrangements' (reg 8(4)), set out prescribed steps that the authority must take to discharge the requirement (reg 8(5)), provide that the information and advice to be given shall be 'determined by the authority having regard to the needs of individuals in the authority's area' (reg 8(7)) and give examples of the type of information and advice which may be provided reg 8(6) & (7))
NHSA 2006, s 2A
SI 2013/351, reg 8(4)-(7)
The Public Health Regulations:
- define 'local health protection arrangements' (reg 8(4))
SI 2013/351, reg 8(4)
- set out prescribed steps that the authority must take to discharge the requirements (reg 8(5))
SI 2013/351, reg 8(5)
- provide that the information and advice to be given shall be 'determined by the authority having regard to the needs of individuals in the authority's area' (reg 8(7)); and
SI 2013/351, reg 8(7)
- give examples of the type of information and advice which may be provided (reg 8(6) & (7))
SI 2013/351, reg 8(6)-(7)
Other powers and duties connected to local authority public health functions
Paragraph 13 of Schedule 1 to the 2006 Act provides that, for any purpose connected with the exercise of its functions in relation to the health service, a local authority may obtain and analyse data or other information and obtain advice from persons with appropriate professional expertise.
NHSA 2006, Sch 1, para 13
Guidance regarding local authority performance of public health functions
Section 73B of the 2006 Act requires local authorities to have regard to any guidance from the Secretary of State when performing their public health functions. This covers both their duty in s 2B of the 2006 Act and any functions delegated to them under s 6C or 7A.
NHSA 2006, ss 2B, 6C, 7A, 73B
The central piece of guidance relevant to all of the public health functions is the Public Health Outcomes framework
A range of other guidance documents have been produced, eg in relation to commissioning sexual health services delegated to authorities under s 6C and the Public Health Regulations. However, they do not have statutory status under s 73B.
NHSA 2006, ss 6C, 73B
It will be much more difficult to justify departure from statutory guidance issued under s 73B than from other guidance documents.
Complaints regarding local authority public health functions
Section 73C of the 2006 Act makes provision for regulations to be made about the handling of complaints about the way in which local authorities have exercised any of their public health functions. The relevant regulations are the NHS Bodies and Local Authorities (Partnership Arrangements, Care Trusts, Public Health and Local Healthwatch) Regulations 2012, SI 2012/3094. These relate to complaints made by or on behalf of service users, and contain provisions similar to those in the NHS Complaints Regulations.
NHSA 2006, s 73C
Directors of Public Health
Each local authority must appoint a Director of Public Health 'DPH' who has responsibility for:
- all of the local authorities' public health duties under the 2012 Act (including those delegated by the Secretary of State)
- the exercise by the authority of any of its functions that relate to planning for, or responding to, emergencies involving a risk to public health
- for the authority's functions (under section 325 of the Criminal Justice Act 2003); and
- for other public health functions prescribed in SI 2012/3094, regs 14 and 15, (mostly functions under the Licensing Act 2003)
SI 2012/3094, regs 14-15
The DPH is a joint appointment of the local authority and the Secretary of State, and the post-holder is a statutory chief officer under the Local Government and Housing Act 1989. As such the post has the same status as Directors of Children's Services and Adult Social Services.
Local authorities must have regard to guidance given by the Secretary of State in relation to DPHs, including on their appointment, termination of appointment (an authority must consult with the Secretary of State before terminating the appointment of a DPH), terms and conditions and management (s 73A of the 2006 Act). The Secretary of State can direct the local authority's actions if the Secretary of State considers that the DPH has, or might have, failed to discharge his responsibilities.
NHSA 2006, s 73A
Integration of health and social care services
There remains a fundamental conceptual distinction between health services and social care services which requires organisations to retain a clear understanding of the nature of the needs being met by a particular service or area of provision, and therefore which statutory duties are in play in making arrangements to meet those needs.
Local authority duties are not excepted from this distinction as:
- health services which are the responsibility of local authorities remain largely free at the point of use and subject to the NHS Constitution; and
- social care provision is subject to means testing and a separate statutory framework of assessment
Provision for integration of health and social care services therefore must still be on the basis that expenditure and delegation of duties has to be tracked across the boundary between health services and social care services.
Local authority strategic functions in relation to health and social care services, and functions in relation to social care are covered separately in our Practice Note: Local authority strategic functions in relation to health and social care services.
This article was co-produced with DAC Beachcroft partner Ros Ashcroft and originally published in LexisPSL Local Government. If you would like to read more quality articles like this, then register for a free 1 week trial of LexisPSL.