Guidance

Department of Health response to the legal opinion of Stephen Cragg, on behalf of 38 degrees

Department of Health response to the legal opinion of Stephen Cragg, on behalf of 38 degrees

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Stephen Cragg’s legal opinion on the ‘duty to provide’ in the Health and Social Care Bill 2011 (“the Bill”) was published by 38 Degrees in August 2011. The Department of Health does not agree with some important aspects the legal analysis of the effect of the provisions of the Bill, nor the description of what the advice means that is given on the 38 Degrees website.

In particular:

  • The Secretary of State’s accountability for the NHS and his powers in relation to the NHS are not reduced as extensively as suggested - the Government is not “washing its hands” of the NHS
  • The duty on the Secretary of State in relation to the promotion of autonomy (“the hands off clause”) does not restrict the Secretary of State as severely as the analysis suggests
  • We do not agree that the Bill would mean there would be fragmentation, an increase in the “postcode lottery” and no national health service. The Bill confers various duties and powers on the Secretary of State, the Board and clinical commissioning which will ensure a national health service