The impending Lords debate on the S75 Regulations under the Health & Social Care Act will be like the many previous ones.  The argument to annul will be won but the usual spineless behaviour of the LibDems will ensure the Regulations pass anyway.  Is this the end of the NHS as we know it?

No.  Much of the doom saying ignores the reality of politics and of the way our NHS actually functions.  So we go on fighting the implementation.

Just to be absolutely clear – the whole point of the H&SC Act is to bring in a regulated market for healthcare, to promote competition wherever possible as a prelude to fundamentally changing the character of our NHS.  The Regulations just make that clear and are wholly consistent with the Act.

But – the Regulations are obviously and indisputably inconsistent with promises made by Ministers during the passage of the Bill/Act; that commissioners will be free to commission services in the best interest of patients – and they can avoid compulsory competitive tendering.  The LAW, once the Regulations are through, will mean commissioners can only avoid a competitive tender (or the Any Qualified Provider equivalent) if there is only one provider capable of meeting the requirements AND if the resulting contract meets the best value test AND the requirements of the EU procurement regime have been met (transparency and non discrimination etc).

This implies that legally almost all services should be subject to competitive tender but paradoxically it is clear that guidance from Monitor as regulator and (the hilariously renamed) NHS England as performance manager will be less explicit and offer the apparent opportunity for greater freedom.

The history of our NHS is that it does what it is told; it responds to the top down direction which is reinforced by shouting at people to come into line. NHS managers are not accustomed to looking at the law, and few lawyers are employed in the NHS.  So most commissioners will follow the guidance and assume that protects them from being shouted at (which it might) and from legal intervention (which it wont).

The political reality is that there is an election in 2015 that the Tories and LibDems could lose.  So will a private provider mount a challenge if it sees the legal opportunity created by S75 Regulations?  Do they want hero/pariah status when the whole political background might change dramatically fairly soon?  Maybe they will wait.  For almost a decade contracts between Foundation Trusts and PCTs could have been challenged but nothing has happened – no private provider saw their interest in such a challenge.

Finally who is out there likely to challenge?  We know many providers will be interested in bits of primary care, community care and back office function; and we know elective surgery is already under Patient Choice.  So who out there will want to try and enter the other parts of the NHS with some credible claim – for example to be able to provide say a full District General Hospital service?

So.  The likelihood is that the Regulations pass and not much happens.  We can campaign to prevent commissioners breaking ranks and apply pressure to protect NHS services through participation in the various new structures.

All is not lost.

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10 Comments

  1. mung says:

    This is a rather strange intervention at this point in time and misses several key points. Firstly it is unhelpfully defeatist! Secondly, the point about guidance is irrelevant. It can be as fluffy and relaxed as it likes, if these regulations go through, they will be paramount, as any lawyer will be telling the CCGs.

    And I’m not at all reassured by the idea that private providers won’t want some bits. The bits they don’t want are the bits that are threatened with closure.

  2. Martin Rathfelder says:

    Inside the NHS guidance, not regulations, is what rules the day. If the Minister issues guidance saying Black is White then that is what goes – until there is a challenge. It’s hard to see where a legal challenge will come from at the moment.

  3. martin, i have spent many, many, many hours talking to procurement lawyers & other experts over the last year and a half, and i fear your sanguinity (is that a word) is misplaced. almost everyone who has properly scrutinised these regulations can see that CCGs will be advised by their lawyers to use competition for anything the private sector could see a profit stream in.

    really hoped the SHA would have a more instinctive grasp of both the severity of the issue, in terms of damage limitation pre-2015, and also of the unhelpfulness to fellow campaigners of issuing this kind of article at this point in time.

    1. Richard Bourne says:

      Our position on S75 is the same as it was two years ago when it was S67. It is the election of a government committed to a different model of NHS and the Act that is the problem not any particular section or regulation. The fight is a political one not a legal one, and defeat of S75 would be a political success, just as the pause was.
      If, as appears likely, the Regulations pass this is not the end of the NHS and it is pointless to pretend it is. We do not just give up but continue to campaign and organise against implementation to slow down any attempts to accelerate any shift towards the regulated market.
      We can all recite the academic and legal position but what we are concerned with is reality. There cannot, as some claim, be prosecutions for departing from the Regulations and many CCGs will undoubtedly be content to rely on guidance as the NHS always does. Will there be legal challenges? Who by? If there are will they all result in private providers winning?
      If you speak to those who actually know the NHS and work in it and who are already implementing the commissioning regime they do not share the view that there will be any sudden and irreversable changes. There are not hoards of people in commissiong functions gearing up for the major exercise of tendering every service – and it would take hoards and cost sums of money that are simply not in anyones budget – that is reality.
      Reality is more complex as we have tried to explain.
      But that does not and must not stop us or anyone else from campaigning against every step in the implementation of the Act.

      1. i completely agree that the issues are as much about politics as law, and the intersection between the two. and the need to be mindful about the future.

        taking all of that into account, i find these sanguine predictions about the impact of the regulations puzzling, both in content and timing.

        i also find it rather irritating to be told ‘we should not just give up’ if we lose and that ‘reality is more complex’ and that i should ‘speak to those who actually know the nhs’.

        perhaps you’ll get to know me one day and realise these suggestions are a little reudundant!

        I’m not quite sure why you say ‘as there cannot be prosecutions for departing from the regulations’ – this is not terminology i have heard anyone use. Are you saying that companies cannot take a court challenge against a commissinoer if it considers the regulations have been breached? are you saying that Monitor cannot statutorily enforce these regulations and impose hefty de facto penalties for breaching them?

        do you recognise that lack of court challenges in itself, proves nothing – that laws can act as deterrents (in this case, to in-house commissioning)?

        the legal position in relation to the above, seems quite clear to me.

        we both know the position is complex in relation to the politics of all of this, particularly in relation to the record of the previous government. but not that complex, actually. the last government allowed local flexibility and discretion, this one is removing it.

        i’m also really not sure why the point about ‘guidance’ is being made so loudly particularly at this point in time. that is a lib dem argument and it is unconvincing. i think maybe there are issues about the new realities under a condem government here.

        I really don’t understand the timing of this article at all, it is an utter mystery to me

    2. Richard Bourne says:

      This is not just Martin’s view it is pretty common, esepcially amongst those who know the NHS well.
      Regardless of whether or not the S75 Regulations go through the strategy is just the same – to use whatever means we can to slow down implementation until we get a different government elected to repeal the Act. What we do not say is we may as well give up if the Regulations go through. We need to be confident that we can still prevent irreversible damage being done, so we should not say we have already lost.
      The key role for the SHA is to develop and argue for policies that have some credibility as an alternative. There are some huge issues to deal with around the collapse of social care, the increasingly fragmented emergency care system and the tension between the strategy to reconfigure primary and acute services confronting the tactics of opposition to any proposed changes – to suggest just three. These issue are not going away, nor are the money issues.
      Opposition in the Lords could not be in better hands but as we learned through the passage of the Bill winning votes when the LIbDems vote with the Tories is very difficult – and that is what they have said they will do.
      Prosecutions feature in a previous recent post on this site, but that kind of view is commonly expressed.
      The point about guidance has nothing to do with LibDems – it reflects the fact that the NHS habitually follows guidance and obeys top down instructions – we have already seen various NHS “leaders” saying things will be OK because of the guidance. Not convinced that has changed mostly the same people are there.
      Time will tell but if there are to be radical changes in the 14/15 contracts round (no challenges to 13/14 though plenty of legal grounds available) then things will have to start happening very soon and we will notice.

      1. i have never suggested that if we lose this vote we should give up and stop campaigning, that’s a bit of a straw man really. but as andy burnham has just said on sky news, the scale and pace of privatisation now is frightening and there is a ‘crucial’ vote next week. or is he wrong?

        there are in deed big issues to consider, for me, the betrayal of democracy, the lies of the tories, are amongst the biggest.

        i have spent a lot of time thinking about how to slow down implementation of the worst of the reforms (and indeed, doing it). But i am not sure how much realistic guidance has been produced by the party on this – i have asked repeatedly, for example, what labour has told its councillors, given that they are according to the party, the ‘front line of defence’ now. the answer appeared to be, very little. i am aware the SHA has done some work on this, in terms of lay people getting involved with new structures. i think richard grimes has written very well on this, and i’m working on stuff myself that i hope will help.

        there is indeed a delicate balancing act between raising awareness of just how dreadful the tory reforms are, sowing defeatism, and sowing false hope. it is one i am acutely aware of and have many conversations with fellow campaigners about.

        i do think that advice about getting involved with new structures has to be very carefully considered, in terms of what will actually be effective, and what is principled, too. as the SHA says in its principles, its about democratic participation through elections, not selection.

        as socialists, we should not be frightened of criticising just because there is some continuity with the worst free market excesses of the last government.

        if we have a government pursuing an nhs policy designed by someone who is reported as having said ‘the nhs will not exist within 5 years of a tory government’, then i don’t think we should meekly accept criticism for being ‘oppositionalist’.

        let us never forget there is absolutely no mandate for this crap. and that in 2010 satisfaction with the NHS was at record highs.

        of course there are improvements needed and i would like to have faith that those conducting and influencing the policy review are genuinely committed to a democractic & socialist NHS. but i feel the jury is out and i also feel that the social care issue needs to be grounded, first and foremost, with an explicit acknowledgement that – whatever the failings of the previous model – the thatcherite model of social care failed utterly and it is the NHS principles that must prevail, including, being funded through universal taxation, and overwhelmingly publicly provided.

        as for credible alternatives, i agree. however, i attended an SHA event where i felt ‘credibility’ was used to shut down consideration of alternatives that were entirely credible, cost effective in the long term, but perhaps not in line with the over cautious / pro market approach of the party’s leadership. which i felt was a pity.

        lastly, the point about ‘knowing the nhs well’ – i don’t want to fall out with you richard and i know your background is management, a valuable and often no doubt often thankless task. but i think there are pitfalls for a labour movement that priviliges management experience over other forms of experience of the nhs and campaigning. sometimes, even, those who are not from a management background may hear a more unadorned version of the truth from the nhs workers and patients closer to the ground, perhaps? it is also important to appreciate the experience of those of us (campaigners and staff) who have heard nhs managers tell us over and over again, sometimes in very hostile tones, stuff that we always knew was incorrect, and turned out to be so. this is an important point. there are many different ways of being expert.

  4. shibley says:

    I really didn’t want to get involved in this debate, but virtually all leading commercial law firms have teams of procurement lawyers who are keen to have a slice of the action. Nobody is above the law and I think you’ll find the implementation of the law is VERY REAL INDEED. I am not ratcheting this up into an armageddon scenario – but anyone with any knowledge of what is happening in the private sector would merely laugh at the naïvety of some of these comments.

    1. Martin Rathfelder says:

      I am sure there are plenty of lawyers keen to get involved, but its not obvious who would want to instruct them. For commercial organisations a legal challenge to a local commissioning decision is likely to be expensive, lengthy and uncertain. Unlikely to win them any friends. Given what the Government says about the regulations they would have to support Commissioners who chose not to tender. The next General Election is now within sight. If the Conservatives win then we may be in unknown territory, but if they lose, as seems more likely at present, the NHS will be pulled away from competition as a ruling principle. Private providers looking for long term business will be looking to make friends, not enemies, in the NHS.

      We are not suggesting that the NHS is above the law, but the culture of the NHS pays surprisingly little attention to the law. Very few lawyers are employed inside the NHS. NHS managers have looked to guidance, not regulations, to tell them what to do for the last 65 years, and until they are challenged they will probably continue to do so. If the guidance tells them that tendering is not compulsory, then, although the regulations clearly say it is, they will follow the guidance.

      1. In fact, you describe the position (to some extent) as was. But not the position as is, if regs stand. Most of my key points aren’t being addressed in these responses so probably little point in pursuing through this medium.

        Just lastly, though, you say ‘given what the government says about the regulations they would have to support Commissioners who chose not to tender’… ROTFL do you remember David Cameron saying he’d enter a ‘bare knuckle fight to defend district general hospitals’ now the formulation is ‘blame local decison makers’ / ‘blame regulators’ / ‘blame EU’ / ‘blame labour’ / ‘blame giraffes for all i care, you can’t stick this one on us’.

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