About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most