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76 Mod. L. Rev. 564 (2013)
This Time, It's for Real: The Health and Social Care Act 2012

handle is hein.journals/modlr76 and id is 576 raw text is: LEGISLATION This Time, it's for Real: The Health and Social Care Act 2012 A.C.L. Davies* This article examines the Health and Social Care Act 2012 and associated reforms to the National Health Service in England. It focuses on the Act's policy of making the NHS market more 'real', by both encouraging and compelling NHS bodies to act as 'market players'. The article considers whether the reforms are compatible with the constitutional requirements of accountability for the provision of a public service such as the NHS. It argues that the reforms threaten accountability for three reasons: they make the Secretary of State for Health's rela- tionship with the NHS more complex, they create opaque networks of non-statutory bodies which may influence NHS decision-making, and (especially in relation to competition) they 'juridify' policy choices as matters of law. Taken together, these arguments suggest that there is force in the claim that the reforms will contribute to 'creeping' - and thus unaccountable - privatisation of the NHS. INTRODUCTION The Health and Social Care Act 2012 (HSCA) provides the statutory basis for the latest round of structural reforms to the National Health Service (NHS) in England.' The Act continues the now long-standing policy that the NHS should operate as a market, in which health care is provided to patients because it is bought from hospitals and other service providers by 'purchasers' on their behalf.2 The Act creates a new legal framework for the NHS that seeks to shield purchasers and providers from ministerial interference, whilst compelling them to behave as market actors. The legislative process was mired in controversy, not least because the Coalition Agreement stated that the government would 'stop the top-down reorganisations of the NHS that have got in the way of patient care'.' This was welcomed by those who believed that the constant 'chum' of structural reform in the NHS was a distraction from the need to find ways of saving money in a time of austerity and to ensure that patient safety was prioritised in the wake of *Garrick Fellow and Tutor in Law, Brasenose College, Oxford; Professor of Law and Public Policy, University of Oxford. This article considers developments up to 14 November 2012. The Act is expected to enter fully into force from April 2013. I would like to thank the section editors and two anonymous referees for helpful comments on an earlier draft of this article; responsibility for errors remains my own. 1 Some parts of the Act have UK-wide significance but this article will focus primarily on the England-only aspects. 2 On the history of the NHS see generally, R. Klein, The New Politics of the NHS: Froni Creation to Reinvention (Oxford: Radcliffe, 6' ed, 2010). 3 HM Government, The Coalition: Our Programme for Government (2010) 24. 0 2013 The Author. The Modem Law Review O 2013 The Modem Law Review Limited. (2013) 76(3) MLR 564-588 Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

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