Ode to a Mouse

Robert Burns had it right when in November 1785 he wrote “To a Mouse: On Turning Up Her Nest with the Plough”.

    “Wee, sleekit, cow’rin, tim’rous beastie,
    O, what a panic’s in thy breastie!
    Thou need na start awa sae hasty,
    Wi’ bickering brattle!
    I wad be laith to rin an’ chase thee,
    Wi’ murd’ring pattle!”

Burns is telling the poor little mouse, whose winter shelter he has just unearthed with the plough, that she doesn’t have to run away and that he means no harm.

Some of us who have written to Healthwatch England about its overdue Press Statement of Tuesday 05 February 2013 , on the new Local Healthwatch Regulations Sections 35 and 36, feel a bit like Robbie Burns. We reckon we’ve disturbed a mouse.

But the real problem – as shown below – is that Local Healthwatch organisations which are now being unearthed all across England, may be forced to be even more timid – by law!

The National Coalition for Independent Action was spot on and should be congratulated for its statement of Thursday 14 February 2013 How to Make a Toothless Watchdog – ‘Healthwatch’ Censored and Emasculated. The NCIA statement focuses on Section 36, which, as shown below, effectively prevents any new Local Healthwatch from any involvement in what might be deemed “political activity”.

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Section 36: Political Activities not to be Treated as being carried on for the Benefit of the Community

To save some time, you can skip these details of Section 36 here and go straight to What Does All this Mean? below, which analyses where Local Healthwatch organisations may now find themselves.

36(1) For the purposes of section 222(9) of the 2007 Act (Social Enterprises: activities for the benefit of the community) and regulation 35(1)(b), the following activities are to be treated as not being activities which a person might reasonably consider to be activities carried on for the benefit of the community in England:

    (a) the promotion of, or opposition to, changes in:

      (i)any law applicable in the United Kingdom or elsewhere; or

      (ii)the policy adopted by any governmental or public authority in relation to any matter

    (b)the promotion of, or opposition (including the promotion of changes) to, the policy which any governmental or public authority proposes to adopt in relation to any matter:

    (c)activities which can reasonably be regarded as intended or likely to:

      (i)provide or affect support (whether financial or otherwise) for a political party or political campaigning organisation; or

      (ii)influence voters in relation to any election or referendum.

(2) But activities of the descriptions prescribed in paragraph (1) are to be treated as being activities which a person might reasonably consider to be activities carried on for the benefit of the community in England if:

    (a)they can reasonably be regarded as incidental to other activities, which a person might reasonably consider to be activities carried on for the benefit of the community in England; and

    (b)those other activities cannot reasonably be regarded as incidental to activities of the descriptions prescribed in paragraph (1)

(3) In this regulation:

    “governmental authority” includes:

      (a)any national, regional or local government in the United Kingdom or elsewhere, including any organ or agency of any such government

      (b)the EU(1), or any of its institutions or agencies; and

      (c)any organisation which is able to make rules or adopt decisions which are legally binding on any governmental authority falling within paragraph (a) or (b) of this definition

    “political campaigning organisation” means any person carrying on, or proposing to carry on activities:

      (a)to promote, or oppose, changes in any law applicable in the United Kingdom or elsewhere, or any policy of a governmental or public authority (unless such activities are incidental to other activities carried on by that person); or

      (b)which could reasonably be regarded as intended to affect public support for a political party, or to influence voters in relation to any election or referendum (unless such activities are incidental to other activities carried on by that person)

    “political party” includes any person standing, or proposing to stand, as a candidate at any election, and any person holding public office following election to that office

    “public authority” includes:

      (a)a court or tribunal; and

      (b)any person certain of whose functions are functions of a public nature

    “referendum”includes any national or regional referendum or other poll held in pursuance of any provision made by or under the law of any state on one or more questions or propositions specified in or in accordance with any such provision

Without in any way proffering a legal opinion, many new Local Healthwatch organisations could not have been aware of these detailed restrictions on their potential activities when they tendered for contracts because they were not laid before Parliament until Monday 17 December 2012. Surely they may have been misinformed or misled?

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What Does All This Mean?

An examination of procurement procedures used by Local Authorities for tendering and contracts for these Local Healthwatch organisations shows that most of these preceded publication of these Regulations. Neither the Local Government Association’s Get in on the Act: Health and Social Care Act Guidance of June 2012 or the Department of Health’s Summary Report on Issues Relating to Healthwatch Regulations of July 2012 contain any information about these restrictions in Section 36.

The Local Government Association published Establishing Local Healthwatch : Governance in October 2012. This excellent and comprehensive document contains no reference to the Section 36 restrictions imposed on Local Healthwatch organisations.

The Local Government Association, Healthwatch England and Skills for Care issued their comprehensive Knowledge and Skills and Competences for an Effective Local Healthwatch in January 2013. This wide ranging document contains no reference to the Section 36 restrictions imposed on Local Healthwatch organisations.

So little advance warning seems to have been given about the content of these Regulations. Most Local Authority Commissioning Strategies and Invitations to Tender were decided in advance of their publication and most contracts for Local Healthwatch organisations are already awarded or being awarded.

This surely raises at least a possibility that some tendering or contracted organisations may have been misinformed about the powers and functions of Local Healthwatch bodies?

One example of these tendering procedures is Medway Council Invitation to Tender February 11 2013, which on page 95 gives the Strategic Objectives of Local Healthwatch:

    a) information and advice to the public about accessing health and social care services and choice in relation to aspects of those services

    b) make the views and experiences of people known to Healthwatch England helping it to carry out its role as national champion

    c) make recommendations to Healthwatch England to advise the Care Quality Commission to carry out special reviews or investigations into areas of concern (or, if the circumstances justify it, go direct to the CQC with their recommendations, for example if urgent action were required by the CQC)

    d) promote and support the involvement of people in the monitoring, commissioning and provision of local care services

    e) obtain the views of people about their needs for and experience of local care services and make those views known to those involved in the commissioning, provision and scrutiny of care services

    f) make reports and make recommendations about how those services could or should be improved.

These functions are taken directly from page 14 of the Department of Health’s own Local Healthwatch: A Strong Voice for the People: The Policy Explained of March 02 2012.

This is not being unfair to or singling out Medway – which has issued a very comprehensive document – since most Invitations to Tender are probably similar. But which Local Healthwatch organisation will now feel able or empowered to carry out these functions when restricted by Section 36 of the Local Healthwatch Regulations above?

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What Happens after the Francis Report into Mid Staffordshire Foundation Trust?

All this follows the outcome of the Francis Inquiry Report into Care Provided by The Mid Staffordshire Foundation Trust and the Department of Health’s announced intention to investigate other Trusts. The importance of Local Healthwatch organisations’ being genuinely representative of and rooted in their local communities, with unfettered rights to speak on behalf of NHS service users, should surely therefore be paramount?

Perhaps the best one might hope is that:

  • a Westminster Member of Parliament might table an appropriate Parliamentary Question, or
  • a newly appointed Local Healthwatch organisation may feel enabled to challenge its contract if it believes that it may have been misinformed

Though on Tuesday 05 February 2013 in a press statement Healthwatch England Highlighted Concern about Local Healthwatch Regulations, especially Sections 35 and 36, its position is that it only intends “to clarify any confusion”. The statement concluded:

    “Healthwatch England recommends that the above concerns be resolved in future statutory instruments.”

The Healthwatch England Press Statement was issued on the same day that Richard Francis QC presented his Mid Staffordshire NHS Trust Inquiry Report to the Secretary of State for Health.

Surely Healthwatch England should now seek the withdrawal of these Regulations?

Compared with previous NHS and other Health and Care service user structures, as they stand, together the definition and restrictions on the activities of Local Healthwatch organisations surely represent the weakest version of service user representation which has ever appeared in any Department of Health legislation?

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