EXPLORING HEALTH SCRUTINY
Introduction to Health Scrutiny
Welcome to ‘Exploring Health Scrutiny’, a guidance document for Councillors who work on the
Health and Wellbeing Scrutiny Board. This document has been produced for two reasons: firstly
to explain how health scrutiny works at Torbay Council and secondly to explain how the NHS
operates.
Why do we scrutinise health as a local authority?
Health Scrutiny was introduced in local authorities through legislation:
 Local Government Act 2000
 Health and Social Care Act 2001
 NHS Reform and Health Care Professions Act 2002
 Local Government and Public Involvement in Health Act 2007
(a) Local Government Act 2000 – created the executive/scrutiny split in local authority
governance arrangements and gave local authorities power to promote the ‘economic, social
and environmental well-being’ of the communities they serve.
(b) Health and Social Care Act 2001 (consolidated into the NHS Act 2006) – gave local
authorities with social service responsibilities the role of reviewing and scrutinising health
service matters and making reports and recommendations to NHS bodies.
The Act also requires the NHS:
 to attend scrutiny committees when requested
 to provide information to scrutiny committees when requested
 to respond to reports and recommendations from scrutiny committees, however it does
not require the NHS to implement the recommendations
 to consult scrutiny committees on ‘substantial developments’ or variations to services
It is important to note that scrutiny committees do not have the power to visit or inspect NHS
premises.
(c) NHS Reform and Health Care Professions Act 2002 – abolished Community Health
Councils and created Patient and Public Involvement (PPI) Forums for each Primary Care Trust
(PCT) and NHS Trust. The role of PPI Forums was to allow the public an avenue to monitor and
review the performance of NHS Trusts. The Forums had the power to inspect NHS premises
and could also make reports and recommendations to the NHS. Forums could also refer issues
to the local scrutiny committee. In 2007 the Local Government and Public Involvement in Health
Act abolished PPI Forums and replaced them with LINks (Local Involvement Networks).
The Act also gave scrutiny committees a greater power in relation to ‘substantial developments’
or variations in service delivery. Scrutiny committees were given the option to refer contested
NHS proposals to change service delivery to the Secretary of State for Health for further
consideration.
(d) Local Government and Public Involvement in Health Act 2007 (LGPIH) – created LINks
(Local Involvement Networks), a new framework for the involvement of patients and the public
in the commissioning, provision, and scrutiny of health services and social services. LINks
replace patient and public involvement forums. While each PPI forum worked with one trust or
healthcare provider, each LINk covers all the commissioners and providers of both health and
social care within a local authority area with social services responsibilities. Hence there is one
LINk for Torbay, supported by a ‘host’ organisation appointed by Torbay Council (Help and
Care). A LINk can refer any issue related to the commissioning or provision of health or social
care services to a local overview and scrutiny committee. The overview and scrutiny committee
is required to consider the referral and report back to LINks what action (if any) it proposes to
take. Unlike a scrutiny committee, a LINk has the power to enter and view premises providing
NHS or social care services. LINks are entitled to a response to reports and recommendations
they make to the NHS and to social care commissioners and providers.
Therefore we carry out the health scrutiny function for two reasons:
 statutory (legally we have to do it)
 because by doing it we can improve and safeguard health services for the people of
Torbay
What is the NHS? How does it work?
The National Health Service (NHS) was set up in 1948 to provide healthcare for all citizens
based on need, not the ability to pay. It is funded by the tax payer and managed by the
Department of Health.
The NHS is the largest employer in Western Europe and the third largest organisation in the
world after the Chinese Red Army and the Indian Railways.
Locally (in Torbay) the NHS operates through four NHS Trusts and one Strategic Health
Authority:
 Torbay NHS Care Trust (previously Torbay Primary Care Trust)
 South Devon Healthcare NHS Foundation Trust
 Devon Partnership NHS Trust
 South Western Ambulance Service NHS Trust
 South West Strategic Health Authority
(a) Torbay NHS Care Trust – Torbay is quite unusual, but not unique, in having a Care Trust. A
Care Trust is a NHS body to which local authorities can delegate health related (normally social
care) functions with the aim of providing integrated health and social care to the local
community. At present there are only ten Care Trusts in the UK.
Torbay Care Trust also fulfils the role of a Primary Care Trust (PCT). The role of a PCT is to
contract for services from General Practitioners (GPs), dentists and pharmacists, commission
services from hospitals (both in the NHS and independent sector) and provide out of hospital
care such as that provided by Community Nurses and Health Visitors.
(b) South Devon Healthcare NHS Foundation Trust – South Devon Healthcare NHS Trust
became a ‘Foundation Trust’ in March 2007. A Foundation Trust is a new type of NHS
organisation which is an independent, not-for-profit public benefit corporation with accountability
to their local communities rather than central government. This Trust operates Torbay Hospital.
However this Trust serves a wide geographical area that goes way beyond the boundaries of
Torbay.
NHS Foundation Trusts have the following freedoms which other NHS Trusts do not:
 Freedom from central government control and performance management from the
Strategic Health Authority
 Freedom to access capital on the basis of affordability
 Freedom to invest surpluses in developing new services
 Freedom to tailor governance arrangements to their community
NHS Foundation Trusts involve the public by having a list of local people and staff who are
‘Members’ of the Trust. Members can elect representatives to sit on the Trust’s Board of
Governors. The Board of Directors is responsible to the Board of Governors.
(c) Devon Partnership NHS Trust – This Trust provides mental health and learning disability
services to the geographical areas covered by Devon County Council and Torbay Council.
(d) South Western Ambulance Service NHS Trust – South Western Ambulance Service Trust
(SWAST) provides ambulance and urgent care services for residents in Dorset, Somerset,
Devon, Cornwall, and the Isles of Scilly.
All NHS Trusts have regular Board of Director meetings to take decisions. Both Executive
Directors and Non-Executive Directors sit on the Boards.
(e) South West Strategic Health Authority – Strategic Health Authorities (SHAs) were set up
in 2002 to manage the local NHS. Currently there are ten SHAs in England.
SHAs are responsible for:
 Developing plans for improving health services in their local area
 Ensuring local health services are of a high quality and are performing well
 Increasing the capacity of local health services
 Making sure national priorities are integrated into local health service plans
The South West SHA covers the geographical area of Avon, Gloucestershire, Wiltshire, Dorset,
Somerset, Devon, Cornwall, and the Isles of Scilly.
How are our local Trusts performing?
The Healthcare Commission currently rates NHS Trusts and Foundation Trusts through what is
known as the Annual Health Check. The Commission judges the Trusts on two key areas:
 Quality of Services
 Use of Resources
Trusts are scored on a four-point scale: weak, fair, good, and excellent.
The local Trust results for 2007/08:
Torbay Care Trust South Devon Healthcare Foundation Trust Devon Partnership Trust SWAST New results will be available in October 2009.
Quality of Services
Good
Good
Excellent
Good
Use of Resources
Good
Excellent
Good
Good
Every year (normally in January or February) health overview and scrutiny committees are
invited to comment on the performance of their local NHS trusts through the Annual Health
Check. The committee submits their written views on how they feel the Trust is meeting the 24
Core Standards of the Annual Health Check and sends them to the Trust before the Trust sends
its final declaration to the Healthcare Commission. More detail on this process can be found in
the Centre for Public Scrutiny’s booklet, The Annual Health Check – a guide for health overview
and scrutiny committees.
What are the key NHS Initiatives?
In recent years the NHS has been modernised by central government. Four main themes of the
modernisation agenda can be identified:
(i) Patient-led services – In recent years the NHS has moved towards encouraging more
patient-led services, like the Choose and Book scheme. Choose and Book is a national service
that gives patients needing hospital treatment a choice of at least four providers. These
providers could be NHS Trusts, Foundation Trusts, or private hospitals. Patients will also be
able to choose when they go for treatment.
The government has also given citizens a greater say over the running of the NHS through the
Local Involvement Networks (LINks).
(ii) Money following the patient –
(a) Practice Based Commissioning (PBC) – Primary care clinicians (such as GPs) are now able
to commission services for their local population with the local Primary Care Trust acting as their
agent to procure the services.
(b) Payment by Results (PbR) – this is a radical initiative and changes the way the NHS pays
providers. Providers such as acute trusts (hospitals) will only be paid for the work they do and
not (as previously) through block bookings based on the size of their population. This initiative
will reward providers who patients choose to be treated by.
(iii) Flexibility and Increased Capacity – Choose and Book and Payment by Results will
enable the NHS to be more flexible and able to deal with more patients as a plurality of
providers will be available.
(iv) Greater Accountability – the old star rating system for NHS Trusts has been replaced with
the Annual Health Check which gives all NHS Trusts a score of weak, fair, good or excellent.
Central government has also increased local authority powers to scrutinise the local NHS in
recent years (see legislation at beginning of this guide).
Who holds the NHS to account?
The following bodies hold the NHS to account:
 Department of Health (DOH) / Secretary of State for Health
 Strategic Health Authority (reports to DOH)
 Parliament (health select committees/individual MPs)
 Healthcare Commission (through the Annual Health Check and other inspections)
 Local Authorities (through Health and Social Care Act 2001 and other legislation)
 MONITOR (Foundation Trusts only) – independent regulator of NHS Foundation Trusts
 NHS Trust Boards (executive/non-executive directors)
 LINks – these organisations are now coterminous with local authorities with social
services responsibilities, and cover all the NHS (as well as social care services)
commissioners and providers in that area.
The government has stated that LINks will:
 Be meeting places for voluntary organisations and individuals with concerns about local
health and social care
 Build on the existing community networks and the work of the PPI Forums
 Be consulted about service and commissioning arrangements
 Be expected to work closely with health overview and scrutiny committees
LINks retain PPI forums’ right to enter and view NHS premises and also have the right to enter
and view social care services (subject to conditions including not entering individuals’ private
rooms).
What is ‘Substantial Variation’ and how do we deal with it in Torbay?
The Health and Social Care Act 2001 requires the NHS to consult health scrutiny committees
on any ‘substantial variations’ or changes, or developments, of NHS services.
It is important to note that the 2001 Act defines “the health service” as including social care
provided or commissioned by NHS bodies who are exercising local authority functions under
section 31 of the Health Act 1999. As the Partnership Agreement between Torbay Council and
Torbay Care Trust has been made under section 31 of the Health Act 1999 all of the functions
of the Care Trust (including social care functions) may be subject to “health scrutiny”.
Unfortunately the government has failed to define exactly what a ‘substantial variation’ is and
therefore local authorities and the NHS have been left to their own devices in determining what
is a substantial change and what is not. However Torbay has been proactive and has
developed a ‘Criteria’ for determining whether proposals are substantial. This criteria is included
as Appendix One to this document.
Health scrutiny committees need to be concerned with two sections of the above Health and
Social Care Act 2001:


Section 7 – the duty of the NHS to consult with health scrutiny committees on changes to
service delivery (substantial variations)
Section 11 – the duty of the NHS to consult patients and the public on changes to service
delivery (substantial variations)
Potential substantial variations are dealt with in the following way in Torbay:
(1) It is the duty of the NHS to inform the health scrutiny committee of a possible issue of
potential ‘substantial variation’ or a change in service delivery.
(2) Informal, local discussions between the relevant NHS Trust and the health scrutiny chair
should take place over whether the issue is serious enough to be potentially ‘substantial’. If the
issue is thought to be potentially substantial then the issue will go forward to the health scrutiny
committee for the members of the committee to decide if it is substantial or not. The information
on the issue should be presented by the NHS in a report know as an Impact Assessment.
(3) If the health scrutiny committee decides that the issue is not a ‘substantial variation’ then no
further action is taken and the NHS can proceed with its proposals. It should also be noted that
if the potential change is obviously beneficial to the local health community then the committee
should find the change as not substantial.
HOWEVER,
(4) If the health scrutiny committee decides that the issue does represent ‘substantial variation’
(e.g. is not necessarily in the interests of the local health community) then a formal 12 week
consultation will need to be undertaken by the NHS Trust. The committee must give the NHS
Trust reasons for its decision.
(5) During the formal consultation the committee can undertake its own research into the topic
under consideration and can attend relevant consultation events to gather a wider view of the
issue.
(6) At the end of the 12 week consultation the NHS Trust reports back to the health scrutiny
committee with the results of their consultation and their proposals. During this meeting the
committee needs to consider three things:



Has the health scrutiny committee been properly consulted within the consultation
process?
Have the proposals taken into account the views of the public and patients?
Is the proposal in the interest of the local health service?
If the committee agrees that they are happy with the above then no further action needs to take
place and the NHS can implement their proposals.
HOWEVER,
If the committee considers that the consultation with it has not been adequate it can refer the
matter to the Secretary of State for Health for them to consider (or MONITOR in the case of a
Foundation Trust).
If the committee considers that the proposals are not in the interests of the local health service
then it may refer the issue to the Secretary of State for Health or MONITOR as appropriate for
them to consider.
If the committee considers that wider consultation has not taken place with patients and the
public it can refer the matter to the Secretary of State for Health or MONITOR as appropriate on
the grounds that it is not in the best interests of the local health service.
However referral to the Secretary of State or MONITOR should be a last resort and every
attempt should be made to resolve the issue locally.
What has Torbay’s Health Scrutiny Committee achieved so far?
Torbay’s health scrutiny has achieved the following:
Conducted in-depth reviews on the following topics:
 Access to Dentistry (Joint Review with Cornwall County Council, Devon County Council,
Plymouth City Council and Torbay Council)
 Teenage Pregnancy
 Devon Partnership NHS Trust’s closure of the Briseham unit, Brixham and the Riverside
Unit, Torbay Hospital
 Smoking
 Healthy Living (Obesity)
 Mental Health (One in Four)
The committee has also received presentations on a number of issues ranging from the building
work at Torbay Hospital to the Director’s of Public Health Annual Report.
The committee has dealt with a variety of potential ‘substantial variations’ and has triggered a
formal consultation process on two issues, the closure of Watcombe Hall and the modernisation
of Ambulance Services in the South West Peninsula. However in both cases the committee did
not decide to refer the matter to the Secretary of State for Health.
A basic NHS Glossary (What does that mean?)
A
Acute Trust – NHS body that provides medical treatment from one or more hospitals
Agenda for Change – Government reform of NHS staff pay
B
Bed Blocking – patient who is fit to be discharged but who still takes up a hospital bed as
suitable care for them cannot be provided elsewhere
BMA – British Medical Association (professional association of doctors)
C
Care Pathway – process of diagnosis, treatment and care of a patient
Commissioning – identifying health needs and buying services from health providers
D
DOH – Department of Health
DPH – Director of Public Health
E
Elective Treatment – treatment given at a planned or pre-arranged time rather than in response
to an emergency
F
Foundation Trusts - The Health and Social Care (Community Health and Standards) Act 2003
establishes NHS Foundation Trusts as independent public benefit corporations modelled on cooperative and mutual traditions. NHS Foundation Trusts have greater freedoms to manage their
own affairs and improve services. Foundation Trusts are regulated by Monitor, an independent
body set up under the National Health Service Act 2006 which accountable directly to
parliament.
G
GDP – General Dental Practitioner
GMC – General Medical Council (registers doctors to practice in the UK)
GP – General Practitioner (doctor who works from a local surgery or health centre. The majority
of GPs are independent contractors who have a contract with the PCT)
GUM – Genito-urinary medicine
H
Health Visitor – trained nurse with specialist training to prevent ill health, particularly in children
I
ICU – Intensive Care Unit
Independent Reconfiguration Panel (IRP) – independent panel that gives the Secretary of State
for Health advice on issues of ‘substantial variation’ which have been referred from health
scrutiny committees
Inpatient – patient admitted to hospital and occupying a bed
L
Local Delivery Plan (LDP) – document that lists the key targets and actions for a PCT for the
forthcoming financial year
Local Involvement Network (LINk) – a body made up of both individuals and community groups
who work together to involve the public and people who use health and social care services in
bringing about an improvement in local health and social care services.
N
NHS Direct – 24 hour nurse-led telephone helpline
O
Outpatient – patient that attends for advice and treatment but does not stay in hospital
P
Patient Advice and Liaison Service (PALS) – helps people access the NHS complaints
procedure and provides information to patients/public on local health services
Primary Care – first port of call for people seeking health care, normally a GP but could be
dentist or health visitor
Private Finance Initiative (PFI) – partnership between a NHS Trust and private sector that
makes private money available for public sector projects
R
RCN – Royal College of Nursing
Respite Care – provides an opportunity for a carer to have a break
S
Secondary Care – specialised treatment usually provided by a hospital
W
Walk-in Centre – NHS Walk-in Centres offer fast access to health advice and treatment
Useful Websites
Democratic Health Network – www.dhn.org.uk
Offers policy advice and information on health issues
Centre for Public Scrutiny – www.cfps.org.uk
Offers advice on scrutiny in the public sector, has a particular section related to health issues
Department of Health (DOH) – www.dh.gov.uk
Provides health and social care policy guidance and publications
Torbay NHS Care Trust – www.torbaycaretrust.nhs.uk
South Devon Healthcare NHS Foundation Trust – www.sdhct.nhs.uk
Devon Partnership NHS Trust – www.devonpartnership.nhs.uk
South Western Ambulance Service NHS Trust – www.swast.nhs.uk
Healthcare Commission – www.healthcarecommission.org.uk
Appendix 1
Framework of Criteria for determining whether proposals are “substantial”
Characteristics Likely to Diminish Defining
Proposal(s) as Substantial


Characteristics Likely to Increase Defining
Proposal(s) as Substantial
Where questions are about quality
Strong weight of evidence about clinical
 Weak evidence base about clinical
performance and sustainability (e.g.,
performance and sustainability (e.g.,
compliance with European Working Time
compliance with WDT) supporting
Directive) supporting proposed
proposed development
development
 Proposed service not tried and tested,
An area of proven practice with robust
prompting concerns regarding clinical
clinical governance and risk assessment
performance and outcomes
arrangements
 Area of conflict or controversy,
including where changes not supported
by clinical staff




Where judgements required re Quality
and/or Choice versus Access1
 Ethical issues
Groups affected and nature of impact
Preliminary view from patient groups
 Preliminary views from patient groups
2
affected (and/or their advocates where
affected (and/or their advocates) that
they have difficulty in advocating for
change significant – patient impact
themselves) that change insignificant
should be a primary focus for identifying
whether a variation is considered
substantial
Positive impact upon patients, carers or
families (demonstrated through the effect
on patient care journeys or pathways), or
 Inclusion of options with differential
inclusion of proposals which minimise any
impact in levels of benefit between
negative impacts
different constituencies (geographical or
otherwise)
Increases in capacity and/or overall
improvements in patient access/equality
 Reduction and/or widening in
of access, and/or inclusion of proposals to
inequalities in local accessibility/
address any adverse travel implications,
capacity of service or changes,
eg, offer of choice of location, availability
particularly when indicating adverse
of a volunteer car service, follow-up care
travel implications for public1.
being provided closer to home following
the acute period of care
Changes in access prompted by robust evidence that centralisation or concentration of services is required to improve the quality
of care, may need to proceed to formal consultation with a focus on addressing the implications of the relocation of services.
2 Patient groups affected could apply to a local population or a small, dispersed group of patients accessing a specialised service.
1

Wider implications:
Adverse impact on, or loss for, other
patient groups/in other parts of the
system/other sectors
Lack of cohesion/consistency with
other NHS/community strategies
Widening in inequalities
Cumulative effect
Concerns over prioritisation
/opportunity costs, ie what is being
foregone in pursuing proposals





Concerns about impact of proposal on
wider community, e.g. transport
impact, economical impact
Climate of Opinion
Expressed clinical support
 Lack of clinical consensus within NHS
(national and local)
Positive levels of support from local
community based on robust patient and
 Following robust involvement process,
public input at all stages of planning
more than one viable option
and/or local sign-up to direction of
remaining, with no obvious consensus
travel/prioritisation already evidenced,
re preferred way forward
e.g. through robust stakeholder
engagement on LDP
 High ‘noise factor’, including:
Strongly negative perceptions/level
of acceptance associated with
Inclusion of assurances to meet
anxieties, e.g., provision of transport to
change, e.g., overseas/private
and support at home following day-case
provider, differing expectations,
treatment
change in ethos, cultural issues
unsatisfactory PPI process
undertaken in developing proposal,
Proposal with easily accessible rationale,
including where there are concerns
e.g. clear recognition and understanding
that those affected may have been
of need for change and consensus on way
disempowered from contributing to
forward
the engagement phase, e.g. in
instances where vocal minorities or
people with influential voices, such
as politicians, prevail or for
proposals affecting vulnerable
groups who have difficulty in
advocating for themselves and
where local advocacy
underdeveloped/under-utilised

Proposal with complex rationale/
seemingly counter-intuitive case for
change, etc