Whilst most of the media hubbub around the Health and Social Care Bill has, naturally enough, focused on the Government’s proposals to transfer the role of commissioning patient services from primary care trusts to GP-led consortia, little has been said about the plans to reform the arm’s length bodies, of which the National Institute for Health and Clinical Excellence (NICE) is just one.

The details about the future envisaged for NICE can be found at Part 8 (functions and duties) and Schedule 15 (constitution) of the Bill.

The salient points are as follows:

  • NICE, currently a special health authority, will be re-established as a statutory non-departmental public body corporate;
  • To reflect the broadening of NICE’s remit to provide guidance for the social care sector too, the body’s name will change to the National Institute for Health and Care Excellence, although its current acronym will remain unchanged;
  • In exercising its functions in an effective, efficient and economical fashion, NICE must continue to have regard to:
    • the broad cost-benefit balance in the provision of health or social care services in England;
    • the degree of need individuals have for such services; and
    • the desirability of promoting innovation in the provision of health services and social care.
  • the NHS Commissioning Board or the Secretary of State may commission NICE to develop quality standards (statements defining high quality, cost effective care for a particular condition) for NHS care, and public health and social care respectively (although joint directions may sometimes be appropriate). While the commissioner (Board or Secretary) would be responsible for framing the remit of each standard, they cannot determine the final content. NICE will have a duty to establish a process for the preparation of quality standards through consultation with such interested parties as it considers appropriate.
  • The Secretary of State and the NHS Commissioning Board will be required to have regard to the quality standards in discharging their new “improvement duties”. The quality standards will have statutory status once the Board or Secretary of State has endorsed their publication. If appropriate regulations are made, NICE will be able to supply quality standards to the devolved administrations and other bodies.
  • NICE will be able, under regulations, to give advice or guidance, provide information or make recommendations on matters relating to the provision of NHS services, public health services or social care. This may include guidance on new and existing medicines, treatments and procedures, and treating and caring for people with specific diseases and conditions or with particular social care needs. It may also enable NICE to publish or disseminate advice, guidance, information or recommendations to the NHS, local authorities or other organisations in the public, private, voluntary or community sectors on how to improve people's health and prevent illness and disease.
  • Regulations may be made requiring specified public bodies to have regard to NICE advice, guidance, information or recommendations or to comply with NICE’s recommendations. This provision would allow replication of the effect of the current funding Direction requiring PCTs to make funding available for an intervention within three months of publication of a technology appraisal guidance.
  • Provision will continue to be made for appeals to be lodged against recommendations made by NICE.
  • The Secretary of State may, by regulations, make provision for NICE to provide services to other bodies, eg, the devolved administrations, or to provide advice to pharmaceutical companies.
  • The NHS Commissioning Board may direct NICE to exercise any of the Board’s functions in relation to the preparation of guidance which the Board must publish under s14V National Health Service Act 2006 (commissioning guidance). Commissioning guidance will provide GP consortia with practical advice on contracting for the provision of health services with a view to improving the quality of such services.  

Schedule 16 of the Bill sets out consequential amendments to a range of existing statutory provisions, eg, amendments would be made to the Freedom of Information Act 2000 so that the Act would continue to apply to NICE, and to the Health Act 2009 so that NICE would have a duty to have regard to the NHS Constitution.

Whilst the proposals emphasise consistency and continuity in NICE’s functions, albeit ranging across a broader territory henceforth, the distinction between the rationing body we have come to know and love, and the arbiter-onhigh of quality proposed may be subtle, but that does not mean that it will not be discernible.