Aspects of the National Health Service Acts

85 Pages·1966·1.727 MB·English

by  C. R. Seaton and W. A. J. Farndale (Auth.)

THE WESTMINSTER SERIES
General Editor : w. A. J. FARNDALE
VOLUME 1 : The Day Hospital Movement in Great Britain
VOLUME 2 : Trends in the Mental Health Services
VOLUME 3 : Trends in the National Health Service
VOLUME 4: Trends in Social Welfare
VOLUME 5 : Trends in the Services for Youth
ASPECTS OF
THE NATIONAL HEALTH
SERVICE ACTS
By
C. R. SEATON, MA. (Oxon)
of the Inner Temple, Barrister-at-Law,
a Senior Legal Assistant with the Ministries
of Health and Housing and Local Government
PERGAMON PRESS
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Copyright © 1966
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First edition 1966
Library of Congress Catalog Card No. 66-25321
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Editorial Foreword
SOME time ago, I asked an obliging Ministry of Health for one of the
officers from their legal department to lecture to students on the National
Health Service Acts. They sent me Mr. Seaton, who is a member of the
legal branch of the Ministry of Health and of the Ministry of Housing and
Local Government. The students enjoyed his lectures on the legal aspects of
the organisation and administration of the hospital and personal health
services of this country, and they appreciated his new and refreshing
approach to the subject. Subsequently, I invited him to write an introduc-
tion to the National Health Service legislation based on these lectures.
This book is the result. It makes a useful addition to the Westminster
Series of books on the hospital, health and social services of Great Britain.
It is also an interesting sequel by an able lawyer and civil servant to an
earlier book in this series entitled Trends in the National Health Service
(Vol. 3).
This book will be helpful to those who wish to study the statutory basis
of the Health Service. National Health Service staff should know their
National Health Service Acts, and by what authority they carry out their
duties. These Acts form the basis of their service. Here this legal basis is
explained, and the position of the staff as well as of the patients is outlined,
both in regard to the hospital service and to other parts of the service.
Those who work in the National Health Service tend to think that there
are only three parts to the service, namely the hospital service, local health
authorities, and general practitioners (under Executive Councils). Mr. Seaton
very rightly points out that there are four arms to the service, and draws
attention to section 1 of the National Health Service Act 1946 under which
the Minister of Health has a duty to promote the service. Thus the Minister,
as central planner and co-ordinator, is one of the four arms of the service.
It is appropriate that this book should bring us back to the main statute and
first principles, give due weight to the guidance given by central govern-
ment, and remind us that, as set out in the legislation, all agents in the
National Health Service derive their authority from the Minister.
Important questions regarding the financing of the service and the extent
of parliamentary control are answered. Mr. Seaton shows that under the
Act the Minister has a clearly established personal duty to provide the
service, and also that he is answerable to Parliament. The Minister
(assisted by his Department) provides, directs and guides the hospital
authorities and Executive Councils, but his position with regard to the local
Vll
Vlll EDITORIAL FOREWORD
health authority services is one of guidance and leadership rather than
direct control. This book deals with these and other matters in a simple
and straightforward style which is comprehensible to the layman without
becoming involved in legal niceties.
Mr. Seaton has compressed into a small space a short description of a
large legal framework which runs through many amending statutes and
statutory instruments, and has drawn on his expert knowledge in presenting
the legal background to the National Health Service in this form. He has
rendered us a service by covering so comprehensively such a wide field in
such an interesting and readable manner.
In the last chapter the author has tempered his legal approach by point-
ing out that a full understanding of the National Health Service involves
far more than a study of its legal foundation and that neither Parliament
nor the Minister has attempted to prescribe humanity by regulations.
Nevertheless, the main Act and regulations made under it are the authority
by which the health service carries out its task of providing a comprehen-
sive health service, and a better understanding of the legislation may help
those interested to consider, more readily, where revisions and improve-
ments could be made from time to time. Even though you may think you
know your National Health Service Acts, I feel sure that you will find here
some facts and legal information which may be new to you, and a refresh-
ing view of some familiar aspects.
W. A. J. F.
London, 1966
Preface
IN UNDERTAKING the preparation of a short book on the National Health
Service Acts I have had principally in mind the requirements of those who
wish to gain an overall view of the method adopted by Parliament to
establish a comprehensive health service for the people of England and
Wales. Others have prepared detailed notes upon the legislation which are
of great value to the legal and administrative practitioner and those who
are concerned with the efficiency of the service have written upon the
practical problems that arise.
This book seeks to place the intricacies of the creation of the service
within the context of the general plan whilst noting the main subordinate
instruments which prescribe the details of the scheme.
I should like to express my gratitude to Dr. W. A. J. Farndale for his
comments and advice in the preparation of this book and to the Ministry
of Health who have allowed me to write it, although it does not necessarily
express the Department's views.
C. R. S.
Sander stead, 1966
IX
Chapter 1. General Introduction
It shall be the duty of the Minister of Health to promote the establishment
in England and Wales of a comprehensive health service designed to secure
improvement in the physical and mental health of the people of England
and Wales and the prevention, diagnosis and treatment of illness, and for
that purpose to provide or secure the effective provision of services in
accordance with the following provisions of this Act.1
The Object of the Acts
The service which the Minister has a duty to promote is one which, of
its essence, must be human, understanding and approachable: it cannot
succeed if it is rigid or remote. Its concern is prevention of illness as well
as its cure and it must be available to the people of England and Wales in
their homes and in all necessary clinics, surgeries and hospitals. Moreover,
its expense must be acceptable, so waste and duplication have to be
avoided.
The complexities of human need in care and in illness are infinite and
individual. Responsibility should rest in the hands of those who treat, but the
total complex of services must be integrated and complete. The structure of
such a service should be flexible and efficient at all levels from those where
treatment and care are provided to the centre itself. The service as created by
the Act of 1946 is intended to achieve all of these objects and to provide an
harmonious whole.
Divisions of the Service
The scheme which has been adopted is the division of the service into
four main arms :
The Minister as central planner and co-ordinator;
The Hospital and Specialist Service;
Domiciliary care provided by Local Health Authorities; and
The General Practitioner Services under Executive Councils.
The latter three parts have internal divisions for the purpose of local and
professional organisation. Owing to the nature of the functions of the
Minister, he is overlooked by some as one of the main arms, but the service
could not be comprehensive and integrated without a centre where each
1 National Health Service Act 1946, section 1.
1
2 ASPECTS OF THE NATIONAL HEALTH SERVICE ACTS
arm can be seen and planned as an integral part of the whole and where
responsibility ultimately lies.
The hospital and specialist service is administered (except so far as it is
provided by teaching hospitals) on a regional basis by Hospital Boards who
supervise the whole of their area, each Board having the function of en-
suring the sufficiency of the service and of dividing the hospitals in its area
into local groups which are managed by Hospital Management Committees.
The Regional Board employs the senior medical and dental staff and, through
the Hospital Management Committees, the other staff for the hospitals in its
area. The hospitals as land and buildings are vested in the Minister.
Domiciliary care, but not treatment, is a matter for the local authority
which, under Part III of the Act, is the council of the county or county
borough, called in the Act "the local health authority". Each local health
authority has a duty to provide a wide range of services in accordance with
proposals and arrangements approved by the Minister including such
matters as the care of expectant mothers and young children, domiciliary
midwifery, home nursing and health visiting, and vaccination and immunisa-
tion, together with ambulance services and health centres. Moreover, the
local health authority has wide power, subject to the like approval, to pro-
vide for the care and after-care of the physically and mentally ill and to
provide home helps.
To the public, the hub of the health service is the general practitioner who
understands their needs, treats them and gives advice. To administer the
practitioner services, which include the medical, dental, pharmaceutical and
ophthalmic services, Part IV of the Act has established the Executive
Councils, each of which (with certain exceptions) is responsible for those
services in the area of a local health authority. They ensure a sufficiency of
practitioners and administer their remuneration and terms and conditions
of service, including the initial disciplinary machinery.
Subordinate Rules and Regulations
The Act also deals with numerous matters of administration such as
qualifications, superannuation, land matters and default and inquiry
procedures.
For so complex an organisation to function efficiently, attention must be
paid to every detail, but it would be beyond the scope of the Act and the
available time of Parliament to attempt to include all such matters in the
Act itself. The means adopted is that of the regulation-making power. This
expression means that a section of the Act empowers the Minister to make
subordinate rules and regulations as to the details of a topic which have the
same force in law as the Act itself and are subject to the scrutiny and
control of Parliament without requiring the procedure leading to the enact-
GENERAL INTRODUCTION 3
ment of a Bill before they come into force. They can only be made within
the powers conferred by the Act and, in the following pages, the more
important of these statutory instruments will be considered in the context
of their enabling powers.
Parliamentary Control
The majority of the instruments are laid before Parliament after they are
made, when, for a period of forty days, it is open to either House to resolve
that they should not have effect. This procedure is known as "negative
resolution procedure". Other instruments, which in this instance concern
superannuation, have to be placed before Parliament in draft and require
an affirmative vote of each House before the Minister may proceed to make.
This is the "affirmative resolution procedure" which gives Parliament a
more direct control.
It is worthy of note at this stage that Parliament retains a real supervision
of the delegated legislation, a point that is always in the mind of the drafts-
man when he considers the extent of the powers conferred by the enabling
power.1 However, Parliament exercises further control in other ways even
when the laws have been made. The Minister is answerable to Parliament,
that is to say, it is a large part of his duty to defend his policies and the
operation of the service in the House both in answering the questions of
Members and in justifying the expenditure of moneys and seeking their
vote. Neither the health service nor any part of the government of the
country could continue without the necessary finance: the control of the
Exchequer rests with the Commons.
Finance
In deciding what money should be allocated to the health service, it is of
value to the House and to the citizen to know the plans for the develop-
ment of the service over a reasonable period. In its first fifteen years the
service was in its infancy and there was much to be done in assessing the
machine as it stood at its inception. With the expansion of capital expendi-
ture, steps have been taken to review the whole service and to plan its future
comprehensively for a number of years ahead. Thus in 1962 there was pub-
lished A Hospital Plan for England and Wales (Cmnd. 1604) and Health
and Welfare — the Development of Community Care (Cmnd. 1973). These
documents were presented to Parliament, and the results of later reviews
have also been published.
1 As to the nature of delegated legislation and the extent of parliamentary control
generally, see Craies on Statute Law, 6th edition, chapter on delegated legislation.
4 ASPECTS OF THE NATIONAL HEALTH SERVICE ACTS
The National Health Service has been established and is an accepted part
of the life of the people of England and Wale s— of course, similar provi-
sion is made in Scotland by the Scottish Act of 1947 — and its immediate
future is planned. The system is vast and nearly 400,000 people are em-
ployed in it. It is the concern of all and one of the country's major indus-
tries. Yet its structure and the rights and duties of those who are concerned
with it — both as staff and as beneficiaries — are but little known. In the
following chapters we shall look more closely at its legal foundation and
assess something of its achievement.