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    Something major happened in the NHS in February. No, not the new White Paper on rearranging the furniture; something else. This was the announcement, or lack of announcement, that a large number of GP Practices have been taken over by a US Health Insurance giant – Centene. AT Medics, a London based GP group, which runs 37 practices, has essentially been bought out by Centene. This means overnight hundreds of thousands of patients woke up with a new GP provider, without their consent. The acquisition makes Centene the largest provider of General Practice in England with 69 practices.

    The way this has happened follows a pattern seen in recent years. No consultation or public scrutiny; use of legal loopholes; and the use of the revolving door of ex-NHS leaders who know the system as gamekeepers turned poachers. It is possible by a sleight of hand similar to the methods of the cuckoo. The incoming company adds or replaces directors of the ‘host’ organisation, which technically still exists so keeps its NHS contracts, just as a cuckoo displaces the host’s chicks out of the original nest.

    The significance is twofold.

    Firstly, deep and comprehensive commercial involvement in our NHS is troubling. In this case the US health insurer is not only now the largest provider of GP services in the country, it also is providing contracts to NHS England and Integrated Care Systems to advise how they run the NHS – nationally and locally. This gives great insight into the decision makers and influence over how the money is spent. Combined with Centene having a major stake in private hospitals, it is not hard to join the dots- involvement in the design of systems, financing of services and the provision of services gives companies a great degree of involvement in our NHS.

    Secondly these developments are a logical conclusion to major changes for some years in the way family doctors services are organised and delivered. As a GP I have huge concerns and patients will do as well. Why does it matter?

    When invited in Parliament by his shadow, Jonathan Ashworth, to condemn the takeover, Secretary of State Matt Hancock declined, replying: ‘What matters for patients is the quality of patient care… what matters to people is the quality of care. That is what we should look out for’.

     Is he correct? Is the quality of care all that matters? Or do the people providing it, and their ethos, motivation, interests and agenda matter? Is it possible to disentangle ‘quality’, an abstract notion, from the specific people providing a service and their very non-abstract interests?

    One of the reasons I became a GP, and probably the major reason I have stayed in my practice working full time for nearly 15 years, is the deep-rooted feeling that I have of being part of something more than just a clinical service. Myself and my GP colleagues, similar to many across the country, both lead the service and work in it. Every day we see our patients and work in our communities, we know the people and the community. There is no escaping direct and sometimes blunt feedback. Our teams are small, if there is a problem, we are around to fix it. If something needs to change, we don’t need to enter into a large corporate machine for it to happen. We get the spanner out and make the adjustment.

    Can we really say the same for a company that has its eye on more than just providing a ‘good quality’ GP service for the 69 different sites it has control of? There are those who compare health care to supermarkets, or banks. The argument is that efficiency and scale are what is needed; the people who provide it can change and the patient-doctor relationship isn’t a problem, as long as the measurements prove ‘quality’. This may work for a simple transactional arrangement, such as buying some groceries or cashing a cheque, but healthcare – and especially holistic primary healthcare is a more complicated than that. It does matter who cares. It is all about the people, their motivations and their relationship with their patients and community. This is not to say that UK General Practice can’t be improved, but let’s at least keep the baby if we are changing some of the bathwater.

    If anything, General Practice feels more like farming than retail. When done well, looking after the health of the community well takes time, and deep commitment. When done badly it can result in destruction of the environment and soulless communities. Will this new huge, commercial type of model of healthcare care about this?

    I doubt it.

    https://www.theguardian.com/society/2021/feb/26/nhs-gp-practice-operator-with-500000-patients-passes-into-hands-of-us-health-insurer

    https://hansard.parliament.uk/commons/2021-02-23/debates/7CDE78FD-D275-41D3-B02E-D7690F054DB1/TopicalQuestions

     

    US Centene expands in the UK with increased stake in Circle Health

    3 Comments

    Updated 06/02/2021

    Authors:

    Liam Sunner, Maynooth and Tamara Hervey, Sheffield, in collaboration with Brian Fisher, Socialist Health Association

    22 January 2021

    The support of the ESRC’s Health Governance After Brexit grant ES/S00730X/1 is gratefully acknowledged.

    With grateful thanks to Elitsa Garnizova, LSE.

    Summary

    • The NHS and other aspects of healthcare provision and planning are at risk from future trade deals, including one with the US.
    • Some aspects of trade agreements may have direct or indirect effects on the NHSs of the UK, especially NHS England where the Health and Social Care Act 2012 requires some aspects of primary care, and hospital care, to be put out to tender, including to the private sector.
    • It is important to be attentive to the details of (proposed) free trade agreements, to think through their direct and indirect implications for every aspect of the NHS.
    • Broad brush statements, like ‘the NHS is not for sale’, are too imprecise to be useful, either in holding government to account, or in engaging about the specific content of (proposed) free trade agreements.
    • The most important effects of leaving the EU on the UK’s negotiation of trade agreements and what this means for the NHS are the loss of sites of scrutiny, oversight and mechanisms of accountability.

    Setting the scene

    The United Kingdom has left the European Union and is embarking on a new era of setting its trade policy with the world.

    More accurately, Great Britain has left the constraints of the EU’s single market trading rules (which continue to apply, in effect, in Northern Ireland).

    While the UK’s membership of the EU was perceived by some to be detrimental to the NHS in England, that trade relationship was with an entity (the EU) the members of which organise their health systems on the basis of solidarity, involving taxation or social insurance structures, rather than the market, to ensure access to healthcare for their populations. Other countries, in particular the USA, with which the UK might enter trade agreements do not necessarily share those values or structures.

    Free trade agreements (FTAs) seek to foster global trade and thus to promote economic growth. Although overall the link between economic growth and population health has been assumed to be a positive one, this general assumption must be treated with some caution. In particular, FTAs between more developed countries, especially where they have solidarity-based healthcare systems, potentially run the risk of having detrimental effects on health systems, and consequently on population health.

    On 19 January 2021, the House of Commons (357 to 266) rejected a proposed amendment to the Trade Bill 2020-21. This amendment, added by the House of Lords, would have added a clause to the following effect:

    “International trade agreements: health, care or publicly funded data processing services and IT systems in connection with the provision of health and care (1) Regulations under section 2(1) may make provision for the purpose of implementing an international trade agreement only if the conditions in subsections (2), (3) and (4) are met in relation to the application of that agreement in any part of the United Kingdom.

    (2) The condition in this subsection is that no provision of that international trade agreement in any way undermines or restricts the ability of an appropriate authority—

    (a) to provide a comprehensive publicly funded health service free at the point of delivery,

    (b) to protect the employment rights or terms and conditions of employment for public sector employees and those working in publicly funded health or care sectors,

    (c) to regulate and maintain the quality and safety of health or care services,

    (d) to regulate and maintain the quality and safety of medicines and medical devices, (e) to regulate and control the pricing and reimbursement systems for the purchase of medicines or medical devices,

    (f) to provide health data processing services and IT systems for commissioners, analysts and clinicians in relation to patient data, public health data and publicly provided social care data relating to UK citizens, or

    (g) to regulate and maintain the level of protection afforded in relation to patient data, public health data and publicly provided social care data relating to UK citizens.

    (3) The condition in this subsection is that the agreement—

    (a) explicitly excludes application of any provision within that agreement to publicly funded health or care services,

    (b) explicitly excludes provision for any Investor-State Dispute Settlement (ISDS) clause that provides, or is related to, the delivery of public services, health care, care or public health,

    (c) explicitly excludes provision for any ISDS clause regarding data access and processing in relation to patient and public health data for the purposes of research, planning and innovation,

    (d) explicitly excludes the use of any negative listing, standstill or ratchet clause that provides, or is related to, the delivery of public services, health care, care or public health,

    (e) contains explicit recognition that an appropriate authority (within the meaning of section 4) has the right to enact policies, legislation and regulation which protect and promote health, public health, social care and public safety in health or care services, and

    (f) prohibits the sale of patient data, public health data and publicly provided social care data, except where all proceeds are explicitly ring-fenced for reinvestment in the UK’s health and care system.

    (4) The condition in this subsection is that the agreement explicitly allows, in the case of any traded algorithm or data-driven technology which could be deployed as a medical device, for the methodology for processing sensitive data to be independently audited or scrutinised for potential harm by an appropriate regulatory body in the United Kingdom where it relates to trade in medical algorithms, technology or devices.

    (5) For the purposes of this section— “negative listing” means a listing only of exceptions, exclusions or limits to commitments made by parties to the agreement; “ratchet” in relation to any provision in an agreement means any provision whereby a party, if (after the agreement has been ratified) it has unilaterally removed a barrier in an area where it had made a commitment before the agreement was ratified, may not reintroduce that barrier; and “standstill” in relation to any provision in an agreement means any provision by which parties list barriers which are in force at the time that they sign the agreement and undertake not to introduce any new barriers.”

    Such a clause would have significantly constrained governmental/executive action in entering into trade agreements where those trade agreements might have had various direct or indirect effects on the NHS.

    The UK government’s position is that there was no need to protect the NHS in the Trade Bill. The Trade Minister Greg Hands stated that it was “offensive and absurd” to claim that the NHS is or would ever be “for sale”. But others in the debate expressed concern that the NHS might be “on the table” in trade agreements, and that ability to access medical treatment free at the point of delivery was in jeopardy. And according to some sources, US officials and businesses have repeatedly said that the NHS must be “on the table” in trade talks, with US pharmaceutical companies and healthcare businesses eyeing the UK health market as a source of profit.

    The aim of this briefing is to bring some specificity and clarity into discussion of these claims.

    US Trade Agreements

    The Agreement between the United States of America, the United Mexican States and Canada 2020 (USMCA) provides a recent example of US trade policy and what the US might seek to achieve in future trade agreements. Although it is a product of the Trump Administration, and we expect the Biden Administration to take something of a different approach, the incoming Trade Representative of the US, Katherine Tai’s speech on 13 January 2021 notes that the US administration will be keen to enforce its existing trade deals, suggesting continuity in at least some respects. Tai also stresses protecting American interests, including through enforcement of trade agreements. The Bipartisan Congressional Trade Priorities and Accountability Act of 2015 passed by Congress sets out the terms for then-future trade agreements. As Congress has the power to set trade terms, this serves as a good guide as to the shape of future trade agreements.

    Trade agreements do not, in general, have explicit provisions on national health systems. Rather, what is necessary when thinking about possible effects of a trade agreement on the NHSs in the UK is to look at each part (‘chapter’) of a trade agreement and think laterally about what aspects of a health system it might affect: the products that are used in the system (medicines, devices, equipment); the people who staff it; the new technologies that are developed for it; the data that is shared within it and so on. It is not enough, for instance, to secure a ‘carve out’ for all public services in a services chapter, when rules in a procurement chapter might include access for foreign products in ways that undermine the logics of a solidary-based health care system. Taking things further, we also need to consider the effects on the health system of how trade agreements might change population health, through food regulation, environmental standards, and labour rights.

    That is why our most important recommendation concerns effective scrutiny, by expert stakeholders, of any future US-UK FTA, with a specific focus on effects on the UK’s national health systems.

    For the purposes of this brief note, we focus ONLY on the NHS in England. Different rules apply to and in the NHS in Northern Ireland, Scotland, Wales, and these differences matter. NHS England alone has gone down the route of putting out to tender some of its services, which means that provision can be by privately owned entities, as opposed to bodies of the state. However, some aspects of NHS provision, broadly understood, are integrated across the whole of Great Britain, so some of what we have to say applies beyond England.

    Aspects of a health system: model

    The WHO ‘building blocks’ model of health systems gives a useful structure for considering the effects of trade agreements on health systems. To this we need to add population health matters. Combining the two, we reach the following model:

    • health service delivery
    • health workforce
    • health systems financing
    • information systems
    • medical supplies
    • leadership and governance
    • communicable diseases
    • non-communicable diseases
    • public health capacity and governance

    Of these, some areas of NHS England would be more directly potentially affected by a US-UK trade agreement (such as medical supplies), others more indirectly (such as non communicable diseases), and others (like health systems financing) not likely to be affected at all, except in the most tangential ways. We can organise the model along these lines thus:

    Potential direct effects Medical supplies
      Information systems
      Services delivery
      Workforce
    Potential indirect effects Non-communicable diseases
      Health system governance
      Public health capacity and governance
    Tangential effects only Financing
      Communicable diseases

    Potential direct effects

    Summary

    Medical supplies Potential for reduced costs to NHS.

    Potential for increased costs to NHS (through patents).

    Potential for earlier access to novel products than otherwise.

    Potential opportunities for UK-based medical supplies sector.

    Information systems Potential for increased diversity in provision, with lack of interoperability of systems, to detriment of patients.

    Potential to facilitate sale of NHS data.

    Services delivery Potential for foreign firms to supply clinical services in NHS.
    Workforce Potential for recognition of foreign qualifications.

    Supplies of medicines, devices, equipment; development and implementation of new health technologies (novel medicines etc)

    Free trade agreements (FTAs) bring in tariff-free trade in goods. Pharmaceuticals are zero rated anyway, so there would be no change there. But other products used in health systems could be affected, for example, medical equipment like personal protective equipment, or medical devices. Reducing tariffs could mean access to cheaper products, hence less cost for the NHS.

    FTAs also seek to reduce regulatory barriers to trade (or ‘technical barriers to trade/TBT’ in trade speak). Every stage of regulation of (novel) health technologies, from ‘bench to bedside’, is a ‘barrier to trade’ in the sense of a FTA. Different regulatory requirements add cost, but they also protect patients from harm from unsafe or ineffective products.

    However, FTAs typically also permit regulation that is not protectionist (overtly discriminatory on the basis of nationality) that protects interests like consumer safety or public health. In the context of medicinal products, and to a lesser extent other products used in the NHS, these technical standards are usually developed at international level. The recent EU-UK Trade and Cooperation Agreement, for instance, requires the EU and UK to use international standards where possible (Article TBT.5).

    Reducing differences in barriers to trade such as clinical trials rules, by reducing duplication of processes and/or enhanced opportunities for research cooperation could result in lower costs and perhaps in novel products reaching the (smaller) UK market sooner than they otherwise would.

    But the UK adopting, for instance, the authorisations for new medicines from the US FDA would mean a loss of UK regulatory control not only at market authorisation stage, but also when it comes to the question of which medicines are available within the NHS. There are concerns, for instance, that US approaches to (lack of) transparency of clinical trial data would lead to less effective scrutiny of novel products, and inefficiencies in terms of decisions within the NHS on value for money of new medicines, rather than simply their safety or efficacy.

    Furthermore, there are concerns about the UK departing from EU regulatory standards, given existing trade patterns. An agreement to align with the US on such matters could amount to an agreement to diverge from the EU.

    FTAs have chapters on government procurement of goods (and services) which require governments to open to tender contracts with the government for goods and services. Under the WTO’s Agreement on Government Procurement (GPA), governments are nonetheless required to take social policy objectives into account when they select between tenderers. This practice has been challenged as disguising protectionist agendas. While studies have shown negative effects on NHS services (negative impacts on patient care, poor value for money, employment and working conditions; variable effects on service quality and ‘productivity’ (if that is even a meaningful concept in terms of national health services) when opened up to private provision through competitive tendering, equivalent negative effects are not so obvious for products.

    Taking the recent EU-UK Trade and Cooperation Agreement as an example, we may draw some lessons to indicate the power dynamic at play for a possible US-UK agreement. The EU-UK TCA goes much further than the GPA in terms of opening up opportunities for companies established in the EU/UK to provide goods or services for governments in the UK/EU. Within the EU-UK agreement, procurement is addressed under Title VI, and “The objective of this Title is to guarantee each Party’s suppliers access to increased opportunities to participate in public procurement procedures and to enhance the transparency of public procurement procedures” (Article PPROC.1). The rest of the procurement chapter deals in some detail with the process as a whole and the requirements for transparency/ensuring openness.

    One key element to note in the EU-UK TCA’s provisions on the procurement process is that in instances where the lowest bidder is significantly lower than others, “it may also verify with the supplier whether the price takes into account the grant of subsidies” (Article PPROC.9). As such, provided such subsidies are declared within the procurement bidding process, their mere existence may not constitute a general ground for refusal. A term like this in a US-UK FTA would further contribute to the openness and transparency of the public procurement process.

    The failed TTIP also included measures associated with a ‘GPA plus’ approach. Both the US and some actors on the EU side were keen to capitalise on benefits from openness of government procurement markets. The health sector was very much included. At the time, the UK government expressed a desire to secure access to global markets for the UK’s health sector industries. Opening up markets for cross-border procurement of health products (pharmaceuticals, medical devices, equipment) is an aspect of FTAs which could be beneficial to the UK: both to the UK’s health products sectors and, so long as quality standards are protected, to the NHS as purchaser.

    It will be important to disaggregate goods from services in terms of procurement provisions in a possible UK-USA trade agreement, and to secure sufficient protection for health services (see further below).

    FTAs may have provisions about protection of intellectual property rights. These have the potential to result in cost increases in products, especially pharmaceuticals. In a study on the TTIP, alignment between the EU and the US on IP was found to be associated with a potentially significant price increase in pharmaceuticals. Price increases may come about because of rules that increase the length of time of a patent. This is an area of free trade that the Trump administration was actively pursuing, characterising European health systems as ‘freeriders’ on the US system, because of their approach to intellectual property rights and pricing of pharmaceuticals.

    The Doha Declaration on the TRIPS Agreement and public health 2001 gives significant leeway for parties to TRIPS to rely on flexibilities within the TRIPS Agreement where necessary to protect public health. TRIPS is a minimal agreement. Other FTAs have adopted an approach of securing more detailed protection for patent holders. It will be necessary to scrutinize intellectual property provisions of FTAs to ensure they do not have negative effects on pharmaceuticals pricing and pricing of other novel health technologies.

    Information systems, data sharing, health data in biomedical research

    FTAs can include provisions about data sharing. FTAs have allowed the transfer of data for the purpose of innovation but there has been very little to demand this data be shared, especially with such proprietary and personal data as health data. For example, the EU-UK TCA includes a general ‘right to regulate’ digital trade clause (Article DIGIT.3), for public interest reasons including public health protection, safety, privacy and data protection, which covers current and future regulation (Article DIGIT.4).

    Further, FTAs may also have provisions about interoperability of information systems, but these are typically quite vague commitments. For example, the EU-UK TCA includes the general commitment to ensure cross-border data flows, as well as not creating restrictions through technical requirements (Article DIGIT.6).

    So provisions in FTAs are unlikely to mandate in any way the sale of NHS data to entities outside of the UK. However, the data compatibility and data sharing rules may facilitate such a contract, if a future government decides to sell NHS data, in a similar way to, for instance, the Thatcher government selling telecommunications infrastructure or council housing stock in the 1980s. NHS data has apparently already been sold in this way, for research purposes. The recent valuing of NHS data at £10 bn has increased concern that FTA provisions would enhance the likelihood of sale to US companies.

    Separate from the sale of the data per se is the question of data handling services, where US firms might rely on an FTA to access services contracts, if the FTA’s data protection provisions were combined with the government procurement rules for services (see below).

    At present, virtually all IT systems within NHS England are privately provided (there is virtually no government-designed and provided IT infrastructure any more, with the one exception of the NHS App which gives access to GP records, which is in competition with private (better) provision). GP practices use private provisions for patient data handling. NHS hospital data handling is also conducted by private entities with which the CCGs contract. US firms are already operating in this market, and the approach adopted in England has led to an inefficient patchwork of provision with little interoperability or ease of data sharing, to the detriment of patients moving between different parts of the systems as a whole (eg GP to hospital to social care setting).

    Health/clinical services and medical treatment

    FTAs seek to secure access to markets for services in the relevant parties to the Agreement.

    As with goods, FTAs typically also permit regulation that is not protectionist (overtly discriminatory on the basis of nationality) that protects interests like data privacy or public health. Unlike in EU law, however, the ‘organisation or financial balance of a national health system’ is not typically one of the grounds for permitted regulation, unless wording like ‘legitimate policy objectives, such as the protection of public health’ can be interpreted to include this. (For an example of a FTA which includes that wording as an exclusion from the provisions on trade in services see SERVIN.1.1 (2) of the EU-UK TCA.)

    The essence of the concern about trade agreements’ effects on health and especially clinical services is the idea that healthcare is not (or should not be) organised on the basis of ordinary market principles. A trade agreement does not in general treat services in one sector any differently from any other sector.

    FTAs typically however exclude entire sectors from the application of the service provisions. For example the EU-UK Trade and Cooperation Agreement excludes audio-visual services entirely from the Title on Services and Investment (Article SERVIN.1.1 (5)). This type of provision is called a ‘hard exclusion’ or ‘carve out’. Such approach has been described as ‘’20 years of protection that works” by the European Commission. However, the caveat of the political and economic power of the EU behind such protection must be taken into account. While the provision itself works as intended, its use at a similar scale may not be applicable between the US and the UK, because of the relative disparity of bargaining power between the US and the UK.

    Another type of exclusion or exemption in a FTA can be found in reservations. A reservation is an aspect of domestic law or policy (either existing, or future) that does not comply with one or more of the main provisions of the FTA (such as market access, or national treatment), but for which it is agreed between the Parties to the FTA that the FTA will not apply.

    To give some examples, in the EU-UK TCA, these are found in ANNEX SERVIN-1 (current measures) and ANNEX SERVIN-2 (future measures). These provisions could serve as a model for protecting European solidarity-based models of the healthcare system as opposed to US models. There are three pages of EU current measures reservations for medical, dental, midwives, nurses, physiotherapists and para-medical services, at Reservation No 3; EU reservations for research and development, at Reservation No 4; and five pages for health services and social services, at Reservation No 13.

    The UK has an equivalent reservation to the EU’s for research and development. But the UK has no reservations for medical, dental, midwives, nurses, physiotherapists and para-medical services (only for veterinary surgery services), and no equivalent to the EU’s Reservation No 13, suggesting an openness to service providers from the EU to the UK’s health system. This makes sense, given the UK’s reliance on external service providers in the sector, especially in Northern Ireland.

    For future measures, the EU and the UK both have a reservation (No 1) for ‘services considered as public utilities’, which explicitly includes health services. The EU reserves the right to maintain or adopt measures that mean those types of services may be subject to public monopolies, or to exclusive rights granted to private operators. This reservation significantly impedes market access and investment liberalization in the healthcare sector, especially where the State has organised its healthcare system through public monopolies.

    In addition, for future measures, EU Member States have several reservations about health related professional services, and retail sales of pharmaceutical, medical and orthopaedic goods, and other services provided by pharmacists (Reservation No 3). So, for example, all EU Member States except Netherlands and Sweden require a local presence for supply of all health-related professional services, whether publicly or privately funded.  And the EU reserves the right to adopt future measures on supply of all other health services (for instance, ambulance services) which receive public funding or state support in any form (Reservation No 17). This looks like a useful model for a catch-all reservation clause for publicly-funded healthcare services.

    The UK’s future reservations are similar: for instance, establishment in the UK under the NHS is subject to medical manpower planning, impeding market access and investment liberalization (Reservation No 3). Health-related professional services may only be provided by human beings physically present in the territory of the UK (Reservation No 3). The UK also reserves mail order retail services of pharmaceuticals, medical and orthopaedic goods to suppliers established in the UK (Reservation 3)

    The question of access of US firms to NHS clinical services contracts is salient here.

    It may be possible for the UK Government to prevent access for US firms seeking access to NHS clinical service contracts by excluding the NHS clinical service contracts  under Art. I:3 (b) GATS. This allows the UK to exclude services supplied in the exercise of governmental authority from the notion of “services” in the meaning of the agreement and therefore from the application of GATS. The term service “supplied in the exercise of governmental authority” is defined as “any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers” (Art. I:3 (c) GATS). Further to this, the vagueness relating to the distinction between “public utilities” and “publicly financed services” used in FTAs may also be a factor to be aware of when considering health/clinical services and medical treatment. This vagueness of precisely where NHS clinical services fall may help justify a ‘hard exclusion’ or ‘carve out’ by claiming it is a service supplied in the exercise of government authority, in this case the health aspects. This vagueness, can and has been, used by the EU to achieve favourable outcomes in the past.

    If this is not the case and NHS clinical services fall outside the definition of a service supplied in the exercise of government authority, access to the NHS clinical service contracts may be open to US firms as part of the negotiations. However, it would be still possible to protect the NHS clinical services if they were to be explicitly removed per the negative list system (some issues with this system are discussed in the conclusion).

    As noted above, the application of government procurement parts of a FTA to health/clinical services is concerning from the point of view of patient care, quality of service, value for money and employment conditions. Where an NHS such as the English NHS procures clinical or other health services on the open market, a FTA can have the effect of requiring the English NHS to open tendering processes to firms established in the other party to the FTA.

    Further, some FTAs include ratchet clauses (which have the effect of limiting the circumstances in which a government can bring a sector back into a solely public realm, once a market is opened to private supply, without having to compensate private suppliers for existing/expected contracts.

    This question has taken on particular salience during the COVID-19  pandemic. For example, in May 2020, the Spanish Government declared a state of emergency in response to the COVID-19 pandemic. In doing so, the Spanish Government temporarily assumed control over private hospitals in Spain to attempt to combat the pandemic. It would be reasonable to equate a similar situation, in particular the significantly high level of infection, as a grounds for the UK government to assume control over some aspects of the health sector without having to compensate private suppliers for existing/expected contracts. However, this would be dependent on several factors, such as the declaration of a state of emergency, the nature of the emergency, the duration of the emergency, and return to an open market once the emergency in question has been resolved.

    Reservations clauses (as discussed above) can be used to prevent the application of ratchet clauses to aspects of trade barriers in aspects of sectors, such as the healthcare sector.

    Health workforce

    FTAs typically have few if any provisions on migrant labour. They may, for instance, include provisions setting up processes by which professional qualifications may be mutually recognised. This is the case in CETA, for example.

    Some FTAs have clauses that seek to protect labour rights. These are usually relatively weak, and usually involve non-regression of existing labour protections.

    Potential indirect effects

    Summary

    Non-communicable diseases Potential effects on population health through changes to food, environmental, and labour regulation.
    Governance Significant loss of sites for oversight and accountability by health sector stakeholders, Parliament, and the population in general.

    Non communicable diseases

    • Food regulation
      • The USTR negotiating objectives include the reasonable expectation that sanitary and phytosanitary regulations will “build upon World Trade Organization rights and obligations . . . making clear that each Party can set for itself the level of protection it believes to be appropriate to protect food safety and plant and animal health in a manner consistent with its international obligations.”
      • So this is a question of interpretation of those WTO rights and obligations – where it is well-known (eg Turkey Tails) that some states have tried to use public health interests to impede trade, and this has been successfully challenged as being protectionist.
    • Environmental regulation
      • Similar considerations apply for air and water quality and waste management regulation, all of which have clear effects on public health.
    • Labour rights
      • See above.

    Governance

    As a member of the EU, the UK was part of a system whereby free trade agreements were negotiated by the EU (and sometimes also its Member States, depending on the content of the agreement). The rules-based process by which free trade agreements are negotiated in the EU involves a degree of transparency and oversight by elected representatives. Under Articles 207 and 218 TFEU, both the Council and the European Parliament are formally required to be involved in the negotiation and conclusion of trade agreements. In practice, the EU system also involves oversight by relevant stakeholders, through European Parliamentary relations, as well as through governmental channels in each Member State.

    The UK has no equivalent rules-based approach to the negotiation of trade agreements.

    International treaty making is an executive power in the UK’s constitutional practice. Parliament has no formal role in treaty-making. Neither do the governments or parliaments in the UK’s devolved jurisdictions.

    Parliamentary oversight is formally required where a treaty requires a change in UK legislation or the grant of public money. Otherwise, Parliament can only use political pressure to seek to influence the government’s position. No formal transparency rules require the UK government to publish its negotiating position, or draft documents, although the government has done this as a matter of practice, often when the other negotiating party has published its texts.

    The lack of formal parliamentary involvement in treaty-making differentiates the UK Parliament from most other national legislatures. Most written constitutions require parliamentary approval of treaties before ratification for at least some categories of treaty.

    The constitutional arrangements for treaty-making in the UK significantly reduce the scope for oversight by knowledgeable stakeholders, as well as by the population as a whole.

    Process

    The phrase ‘the NHS is not on the table’ does not, by itself, equate to any real legal protection for the NHS.

    Similar language was used by the UK Government during the Brexit discussions and subsequent transition periods, but was then mitigated as part of a compromised approach to finalise the negotiations. As such, such phrasing is more political rhetoric than an absolute protection of the NHS.

    Further, the issue of how the US and the UK approach potential negotiations remains an active point of discussion. The US has previously sought the use of a negative listing system, whereby everything is ‘on the table’ unless exempted. This approach would require each service to be explicitly exempted. The US would then have to agree that the NHS is ‘not on the table’, service by service, prior to the formal negotiations. While such an approach may have some similarities to the reservations method as discussed above, in that items are removed from the negotiation, the reservation approach operates at the economic sector level while the negative listing system operates at the individual service level. Additionally, the Reservation system is removing aspects from sectors that were ‘on the table’.

    Given the value of access to certain services within the NHS, agreeing to remove the entire NHS service by service may not be achievable between the UK and the US. Thus, arguments at the level of ‘selling off’ the NHS or ‘the NHS being on the table’ are unhelpfully imprecise, and too easy for a government to rebuff with an equally broad phrase.

    What is needed is careful analysis of proposed legal texts, with a specific view to working out what their likely effect would be on aspects of the UK’s NHSs.

    2 Comments

    NHSE/I consultation on

    “Integrating care: Next steps to building strong and effective
    integrated care systems across England”

    Response to the consultation by

    Professor Allyson Pollock and Peter Roderick, Population Health Sciences Institute, Newcastle University; and David Price, independent researcher

    8 January 2021

    1. Overview

    Publication of the next steps document during the covid-19 pandemic comes at a remarkable moment. Significant shortcomings have been exposed in the NHS[1], in the systems for communicable disease control and public health,[2] in the procurement system[3] and in the social care system.[4] The lack of hospital and ICU capacity have been major drivers of national lockdowns in March 2020 and January 2021 and the causes of severe winter pressures in previous years.

    At the same time, the pandemic has demonstrated the obstacles created by market bureaucracy and heavy-handed and centralised market regulation which have developed over decades in the NHS.

    The document hints at positive effects of the pandemic (paragraph 2.1) and refers in general terms to some of them (e.g., 2.72), which have played a part in “increas[ing] the appetite for statutory ‘clarity’ for ICSs and the organisations within them.” (3.8). It also recognises “the persistent complexity and fragmentation” which is rightly complained about (1.3).

    This is largely the product of reforms premised on competitive relations and contracting among health bodies. Finally a new anti-competition consensus appears to have emerged in NHS reform[5] which has found its way, though problematically, into the document.

    But as David Lock QC has said in 2019: “The big picture is that you have a market system. If you do not want a market system and you want to run a public service, you need a different form of legal structure.” And this obvious truth raises fundamental questions, which the document seems to glimpse, but which it is unwilling to grasp.

    Why, for example, continue to insist on running health organisations as businesses if the aim is collaboration instead of competition? How should needs-assessment and population planning be undertaken if the aim is to secure comprehensive health and social care for geographic areas? Where should they be located and on which bodies does the statutory duty of universality fall? How can major political questions surrounding resource distribution be undertaken consensually outside established political processes? Equitable access and solidarity require risk-pooling and a community response.

    Rather than rising to the challenge of these questions in ways which could reliably “provide[] the right foundation for the NHS over the next decade” (page 31), the document puts forward substantial de-regulatory proposals which continue to ‘work-around’ the current statutory market­based framework and undermine risk-pooling, even when proposing legislative change; much essential detail is omitted.

    As they stand, the proposals seek to achieve integration by focussing on increasing freedoms of the various bodies involved in commissioning and contracting. They rely on general exhortations to counter deregulation. Laudable “fundamental purposes” inform an “aim” of “a progressively deepening relationship between the NHS and local authorities”. Three “important observations” which may or may not be aims relate to more local decision-making, more collaboration and economies of scale. A “triple aim” duty of unspecified strength relates to “better health for the whole population, better quality care for all patients and financially sustainable services for the taxpayer” (1.3, 1.8, 1.9, 3.3).

    The approach however leaves substantially unchanged the legal powers of the many incorporated bodies active in the health care market among which collaboration is expected but from which disintegration has spread. If the aim is “rebalancing the focus on competition” (3.3) a concrete administrative alternative is required. None is offered. Seeking to promote greater integration whilst retaining commercial autonomy will not work.

    In summary, the proposals:

    • leave in place the purchaser-provider split and commercial contracting;
    • continue the ability to give further contracts to private companies, including, it seems, integrated care provider contracts;
    • provide no response to the finding of the National Audit Office in 2017 that “The Departments have not yet established a robust evidence base to show that integration leads to better outcomes for patients”;
    • favour no controls on ICS membership;
    • give immense and barely-regulated power to monopoly providers and clinical networks
    • contain no controls on the composition of “provider collaboratives”, which could include, for example, large private hospitals;
    • are silent on public accountability mechanisms at a system level, and at the non-statutory “place” level;
    • repeal section 75 of the 2012 Act, revoke some of the ‘section 75 regulations’ and remove commissioning of NHS healthcare services from the Public Contracts Regulations 2015 – which are welcome – but are silent on the safeguards against corruption and conflicts of interest, and some of the section 75 regulations would seemingly be retained;
    • emphasise the importance of strategic needs assessment – which is also welcome – but do not require the assessment to frame provision or to qualify the power of providers and clinical networks;
    • do not appear to make ICSs responsible for all people in an area, and there are unresolved difficulties for integrating health and social care because of different funding bases for different populations;
    • are silent on whether individuals on GP lists will transfer to an ICS body, a provider or a provider collaborative;
    • are unclear on the fate of CCGs in Option 2;
    • contain no explanation of how capital investment strategies will operate, and whether charges on capital, including PFI charges, will change;
    • do not address the powers of NHS foundation trusts;
    • are unclear on how local authority public health funding will be protected;
    • are unclear on how social care funding will be protected, and how the currently different funding bases for health and social services will be addressed;
    • are silent about workforce planning;
    • envisage, but are unclear about, moving staff between organisations, and their terms and conditions.

    We discuss the details in the following two sections.

    1. ICSs during 2021/22 and before legislation

    The document seems to have two purposes: to further progress ICSs and the merger of CCGs ahead of legislation; and to explain changes to the NHSE/I’s legislative proposals published in September 2019.

    Our understanding of what an ICS will be and do, before legislation, is set out in the Box below.

    Box: What will an ICS be and do before legislation – as far as we can make out?

    1. An ICS will not have legal form and will consist of:
    • provider organisations as part of one or more undefined and self-determined “provider collaboratives” operating within and beyond the ICS playing “an active and strong leadership role” and being “a principal engine of transformation”(2.4, 2.31, 2.63); and
    • place-based partnerships”, defined by each ICS but seemingly comprising providers of primary care, community health and mental health services, social care and support, community diagnostics and urgent and emergency care – i.e., excluding secondary care, but including local authorities, Directors of Public Health and Healthwatch, and “may” include acute providers, ambulance trusts, the voluntary

    sector and other – undefined – partners (2.31, 1.16).

    1. It will receive a “single pot budget” which would comprise “current CCG commissioning budgets, primary care budgets, the majority of specialised commissioning spend, the budgets for certain other directly commissioned services, central support or sustainability funding and nationally-held transformation funding that is allocated to systems” (2.40), and will decide how that budget should be delegated to local “places” within the ICS.
    2. Providers will “agree proposals developed by [undefined and self-determined] clinical and operational networks” and will “implement resulting changes” including “implementing standard operating procedures to support agreed practice; designating services to ensure their sustainability; or wider service reconfiguration”; and will “shape the strategic health and care priorities for the populations they serve, and new opportunities – whether through lead provider models at place level or through fully-fledged integrated care provider contractual models – to determine how services are funded and delivered, and how different bodies involved in providing joined-up care work together” (2.11, 1.44).
    3. The ICS will undertake more strategic needs assessment and planning than CCGs can do, resulting in “the organisational form of C.’CGs…evolv|ing|” (2.62-2.63).
    4. The ICS will be subject to governance and public accountability arrangements that are said to be “clear but flexible”, but will not be statutory. (2.28-28, 2.19)

    We make a number of key points under the following headings:

    • Strategic needs assessment
    • The emphasis on strategic needs-based assessment and planning is welcome, yet there will be no single body which has the responsibility to carry it out and no legal mandating of it. This is likely to lead to buck-passing. Perhaps more importantly, it is also likely to lead to needs-based planning being overridden by increasingly powerful monopoly providers having pivotal influence over a single budget, and over its allocation both for non-secondary care services to undefined “places” with no statutory identity, and for secondary (and tertiary) care.
    • Moreover, it seems highly unlikely that services provided would be based on the needs assessment, because clinical networks are expected to carry out “clinical service strategy reviews on behalf of the ICS” and “develop proposals and recommendations” which providers will agree.

    Indeed, “[c]linical networks and provider collaborations will drive…service change” (2.26, 2.11, 2.72). No tie-in to the strategic needs assessment is proposed, let alone a requirement for it to frame provision.

    • Public health experts have traditionally performed the functions of needs assessment, facilitating service development and service planning. However, public health sits outside of health services and is further fragmented between local authorities and the Secretary of State (Public Health England, to be replaced by another non-statutory body, the National Institute for Health Protection) as a result of the 2012 Act.

    Clinical Support Units provide information and support for commercial contracting. They are not substitutes for public health, are not integrated into CCGs or local public health departments, and do not inform strategic needs assessment and service planning.

    • The single pot budget

    It appears – certainly before, and perhaps after, legislation – that ICSs will not be responsible for all people within an ICS area. That term – an ICS area – is conspicuously absent from the proposals. The CCG membership model (‘persons for whom they are responsible’) cannot be changed without legislation and so will presumably be ‘scaled-up’ to cover all the CCGs involved.

    We have previously expressed[6] concern about how Accountable Care Organisations would have been able to integrate health and social care services because their funding would have been for a different population (GP lists versus local authority), and would not have health service funding allocated for unregistered CCG residents who might be eligible for local authority social services. This concern still applies in relation to ICSs, including provider collaboratives and place-based partnerships, both with and without legislation, and with and without integrated provider care contracts.

    In addition, the bases upon which resources will be allocated to secondary (and tertiary) care and to place-based partnerships, and within those partnerships are entirely unclear. This is presumably deliberate. Already there has been a marked decrease in administrative accountability for spending, and multiple contracts and subcontracts – which will continue – make it increasingly impossible to ‘follow the money’, let alone to assess the costs of contract administration. Detailed financial reporting to NHSE/I is obviously essential and may be provided for, but public transparency in funding as between primary care, community and mental health services, and acute, secondary and specialist care, including sub-contracting, is also essential.

    • Provider collaboratives

    No control is proposed over the composition of these collaboratives. They could and presumably will consist of private as well as public providers, e.g., of mental health services, residential and nursing care, acute hospital care and pathology services. The potential inclusion, for example, of large private hospitals, which have been contracted during the pandemic, needs to be clarified immediately. No control is proposed over the granting of contracts to providers within these collaboratives, who may in fact be distant from and have no connection with the local community and be subject to commercially-driven mergers, acquisitions and closures that threaten patient care.[7]

    Full integrated care provider contracts can be awarded, though there is no reference to the House of Commons Health and Social Care Committee in June 2019 having “strongly recommend[ed] that legislation should rule out the option of non-statutory providers holding an ICP contract [in order to] allay fears that ICP contracts provide a vehicle for extending the scope of privatisation in the English NHS”. In September 2019, NHSE/I acknowledged this and stated that it supported the recommendation. If private companies are not likely to be awarded such contracts, then what is lost by legislating to that effect? And what prevented a clear statement to that effect being made in this document?

    Neither is there any reference to the HSC Committee’s recommendation that “ICP contracts should be piloted only in a small number of local areas and subject to careful evaluation”.

    • ICS membership

    There are two potential aspects in this regard.

    The document proposes for legislative change Option 2 that the ICS body should be able to appoint such members to the ICS body as it deems appropriate “allowing for maximum flexibility for systems to shape their membership to suit the needs of their populations” (3.19). It seems that this will be possible de facto before legislation, e.g., via the unspecified provider collaboratives. This risks giving private companies influence over the allocation of NHS funding: “they are there to make money from the NHS” in the words of Dr Graham Winyard – and should not be admitted as members. Yet the document is silent on this point.

    As for patients, the document is silent on whether individuals on GP lists will transfer to any provider (e.g. under an integrated care provider contract), or even to a provider collaborative – or, after legislation based on Option 2, to an ICS body; and, if so, how that would be achieved and whether individuals would have any choice in the matter. In addition, will individuals be able to move from one ICS to another? And what happens, for example, if an individual is on the list of a GP (or provider or provider collaborative) within the ICS, but lives in a local authority area within another ICS and requires social care?

    NHSE/I should clarify these issues as soon as possible.

    • Public accountability

    ICSs will be making major resource allocation decisions, which will often be controversial. Transparency and scrutiny will be critical. However, the document says nothing about how current public accountability requirements and mechanisms will work in an ICS context. These mechanisms are based mainly around CCGs and local authorities, but in reality these bodies will no longer be the decision-makers. Actual decision-making will be de-coupled from legal functions and the effectiveness of public accountability will be diminished in the process.

    • Competition and contracting

    Proposals to remove market competition, compulsory contracting and the commissioning of NHS healthcare services (only) from the Public Contracts Regulations 2015 – which are welcome – cannot happen without statutory change; the rights of private providers and the purchaser-provider split remain in place. The work-arounds continue.

    • Social care

    Adult social services are means-tested. Health services are not. Providers of social care and support are said to be included in place-based partnerships, but the allocation of resources to and within the partnerships is entirely unclear. There is no mention of any safeguards to prevent services which are currently free from being re-designated as social care and so subject to means-testing and possible charges.

    • Public health

    Local authority public health will fall within place-based partnerships. As for other services covered by these non-statutory partnerships, there is no mention of how protecting public health funding will be achieved in the face of the power of provider collaboratives and clinical networks operating at the level of the ICS and beyond. Representation by DPHs and other local authorities is unlikely to be enough.

    • Workforce planning

    The next steps document is silent about work force planning. Lack of doctors and staff is already a serious issue after years of fragmentation, lack of investment and, appallingly, absence of a strategy: the Kings Fund described it recently as “a workforce crisis”. NHSE/I need to be clear about how attempts to improve this critical function would operate in the ICS context.

    • Moving staff and their terms and conditions

    It is proposed that there should be “frictionless movement of staff across organisational boundaries” (bizarrely in the context of data and digital technology, page 20). This is capable of different meanings across a spectrum, but nothing more is said about this, nor on the terms and conditions of staff in the ICS context. Much more information should be provided.

    1. ICSs after legislation

    There is much less information on legislative changes in the next steps document than was contained in NHSE/I’s September 2019 document entitled The NHS’s recommendations to Government and Parliament for an NHS Bill. The next steps document lists some of those recommendations and states, oddly, “We believe these proposals still stand” (3.3, 3.4). This statement makes it unclear whether they continue to be proposals.

    The next steps document proposes two options for legislation.

    Option 1 would establish the ICS as a mandatory statutory ICS Board in the form of a joint committee of NHS commissioners, providers and local authorities with an Accountable Officer, and with one CCG only per ICS footprint which would be able to delegate “many of its population health functions to providers” (page 29).

    Option 2 would set up a new statutory ICS body as an NHS body by “repurposing” CCGs, taking on their commissioning functions, plus additional duties and powers, and having “the primary duty…to secure the effective provision of health services to meet the needs of the system population, working in collaboration with partner organisations”. It would have “flexibility to make arrangements with providers through contracts or by delegating responsibility for arranging specified services to one or more providers”. It would have a board of representatives of system partners (NHS providers, primary care and local government alongside a Chair, a Chief Executive and a Chief Financial Officer as a minimum) with the ability to appoint such other members as the ICS deems appropriate “for maximum flexibility for systems to shape their membership to suit the needs of their populations” (page 30).

    NHSE/I prefer Option 2.

    Most of the points we have made pre-legislation continue to apply. We expand on some of those and add to them as follows:

    • Major reorganisation

    It is striking that despite the apparent opportunity for primary legislation following the Queen’s Speech neither Option grapples with the fundamental questions posed in the Overview above, which flow from the anti-competitive consensus (if such there be). This might be because NHSE/I wish to avoid being seen to be proposing a major reorganisation. But this is exactly what is happening, even without legislation.

    In September 2019, NHSE/I stated:

    “The Select Committee [in July 2019] agreed that NHS commissioners and providers should be newly allowed to form joint decision-making committees on a voluntary basis, rather than the alternative of creating Integrated Care Systems (ICS) as new statutory bodies, which would necessitate a major NHS reorganisation.” (emphasis added)

    • Competition and contracting

    No legislative changes are proposed to the purchaser-provider split. Whilst repeal of procurement rules under section 75 of the 2012 Act and removal of commissioning of NHS healthcare services (only) from the Public Contracts Regulations 2015 are welcome, the document is silent on safeguards against corruption and conflicts of interest.

    It is also important to recall that in September 2019 NHSE/I stated that it would retain a number of the provisions of the NHS (Procurement, Patient Choice and Competition) (No.2) Regulations 2013 – commonly referred to as the ‘section 75 regulations’. Of particular worry, exacerbated by the covid- 19 pandemic, is retention of “the requirement to put in place arrangements to ensure that patients are offered a choice of alternative providers in certain circumstances where they will not receive treatment within maximum waiting times”. The possibility of the use of private providers in these circumstances, rather than increasing NHS capacity, is obvious.

    • Fate of CCGs

    NHSE/I still seem undecided about the fate of CCGs in Option 2. Under both Options, the document states that “current CCG functions would subsequently be absorbed to become core ICS business” (2.64). Yet the document only proposes, in relation to Option 2, to replace the CCG governing body and GP membership, but for some unknown reason does not state that CCGs will be abolished, which presumably they must be, under Option 2, with no replacement.

    • ICS membership

    The document proposes in Option 2 – though we are not clear why this is not a possibility in Option 1 nor de facto from now onwards (see section 2(4) above) – that the ICS body should be able to appoint such members as it deems appropriate. This would be a blatant undermining of the ICS as an NHS body.

    In addition, as stated above (section 2(4)), it is unclear whether individuals on GP lists would be transferred to the ICS body.

    • Missing proposals
    • Even though both Options propose primary legislation, the document contains no proposal for ICS- specific public accountability mechanisms, for abolishing the purchaser-provider split, or to give place-based partnerships a legal identity.

    • A fundamental omission is how capital investment strategies will operate and whether charges on capital will change. NHS Property Services is now charging market rent for property occupied by Trusts, CCGs and some GP premises. Foundation trusts have autonomy over the property they hold and investment decisions. However, the Private Finance Initiative has left a legacy of major debt in health services and in local authorities. There has been no public scrutiny of the impact of the covid- 19 pandemic on PFI contracts, on debt repayments and on renegotiation of the exorbitant rates of interest being paid out as part of the annual payments.

    • The powers of FTs are not addressed not least the ability to generate up to half their income from outside the NHS, at a time when public capacity is reducing and waiting lists, e.g., for surgery and cancer care, are growing. Nor is it made clear whether current contracts with large private hospital chains (SPIRE et al.) are long-term and whether they will be involved in provider collaboratives.

    • In September 2019, NHSE/I recommended abolishing the prospective repeal of the power to designate NHS trusts that was enacted in the 2012 Act but never brought into force, to support the creation of integrated care providers. The next steps document only mentions this in passing (3.3). It remains unclear if this still being proposed and, if it is, the circumstances in which it could be exercised.

    1. Conclusion

    These proposals are incoherent, de-regulatory and unclear, and are not equal to the existential threat that is posed by the current government to the NHS as a universal, comprehensive, publicly- provided service free at the point of delivery. This has been amply demonstrated by the government’s response to the covid-19 pandemic which has directed billions of pounds to private companies to provide services that should have been provided by the NHS, Public Health England and local authorities. The proposals allow this to continue and increase.

    Neither can the ambition of providing a sound foundation for the next decade be sensibly addressed without considering the inevitable but uncertain changes that will be necessary post-pandemic to the public health and social care systems, and to the functions of local authorities.

    The challenge now is much greater than it was in 2019, when the difficulties of getting major NHS legislation through the House of Commons was used as a reason/excuse for not proposing legislation equal to the task of taking the market out of NHS once and for all. We urge MPs who are committed to the NHS as a public service to support scrapping the 2012 Health and Social Care Act in its entirety and to support the NHS Reinstatement Bill which would put back the government’s duty to provide key services, delegated to Strategic Integrated Health Boards and Local Integrated Health Boards.

    END

    [1] E.g., lack staff, beds and other capacity following inadequate investment and the absence of a workforce planning strategy over many years; inadequate planning and personal protective equipment (PPE); marginalising GPs.

    [2] E.g., devaluing local authorities and the NHS by centralising and privatising tracking, tracing and testing; spending hundreds of millions of pounds on inaccurate lateral flow tests; by-passing the established system for notifying suspected cases.

    [3] E.g., spending billions of pounds on untendered contracts, including to companies with no track record.

    [4] E.g., shortages of staff and PPE; high excess deaths; inappropriate discharge of hospital patients to care homes.

    [5]  “These developments [of STPs and ICSs] represent an important shift in direction for NHS policy. The 2012 Act aimed to strengthen the role of competition in the NHS, consolidating a market-based approach to reform that has been in place since the establishment of the internal market in 1991. By 2019, however, competition rarely gets mentioned in NHS policy. Instead, the Five Year Forward View, STPs, and ICSs are based on the idea that collaboration – not competition – is essential to improve care and manage resources, including between commissioners and providers”. Health Foundation submission to the Health and Social Care Select Committee inquiry into legislative proposals in response to the NHS Long Term Plan, April 2019

    [6] Pollock AM, Roderick P. Why we should be concerned about accountable care organisations in England’s

    NHS. BMJ. 2018;360:k343. https://allysonpollock.com/?page id=11

    [7] E.g., Care Home Professional, Terra Firma close to £160m care home sale to Barchester Healthcare, 15 November 2019, https://www.carehomeprofessional.com/terra-firma-close-to-160m-ca re-home-sale-to- barchester-healthcare-report/

     

    ICS Next steps Consultation Response 08Jan21

    2 Comments

    by Esther Giles, Former Director of Finance (Specialised Services) South Region of England, SHA member”

    This article tracks the extent and nature of marketisation and privatisation in the NHS up to the current proposed move to Integrated care systems (ICSs) and argues that the current ICS proposals are the logical conclusion of the marketisation reforms implemented progressively from Thatcher onwards.

     

    Some of David Cameron’s many famous last words were his pre-election pledge in 2010 that there would be no more “top-down reorganisations” of the NHS[1]. He then presided, in 2012, over the most chaotic and unlegislated top-down upheaval of the NHS that can be imagined or remembered. The resulting fragmentation and damage were never resolved, and so the NHS goes limping in the logical conclusion of the relentless drive away from a universal national service, and towards the current proposals for Integrated Care Systems (ICSs) modelled on the US Kaiser Permanente system of Accountable Care Systems.

    The 2012 Health and Social Care Act and Marketisation

    The internal market was given a fundamental boost by the Health and Social Care Act 2012. Under this Act, all NHS services above a stated value had to be put out to competitive tender, turning the provision of healthcare into an economic activity and, as such, subject to EU competition Law.

    Thus, private providers such as Capita and Virgin have been seen bidding to provide NHS services, mainly in community services. Sometimes they win and sometimes they don’t. And if they don’t, they look for opportunity to sue. In the South West, we saw Virgin win contracts for Community Services in Devon[2] and Bath and North-East Somerset (BANES). Richard Branson’s Virgin HealthCare won £1bn worth of contracts in 2016/17. It won these services from the NHS and from non-profit making services such as community interest companies.

    NHS acute hospitals have all stayed within the NHS so far, except for a short flirtation between Hinchingbrooke Hospital and the Circle Group, which ended in disaster, with the provider being put into “special measures” in 2015. The picture is very different for mental health care, where the private sector has had continued domination of parts of the market, in 2012/13, 22% (£1.7bn) of NHS mental health spend was with the independent sector, compared with 4% (£1.8bn) of acute spend. Providers include St. Andrew’s Healthcare, Partnerships in Care, and the Priory Group. For secure MH services, they are all building ‘private’ because the NHS cannot afford the capital funding to do so, Typically, these independent sectors beds cost the NHS 20% more than NHS beds[3].

    There is no evidence that the Internal Market has been any sort of success. No evidence that competition has improved outcomes in any but a few limited examples where causality is neither clear nor proven. The costs of the internal market are huge. Administrative costs in the NHS were estimated at 14% in 2005 compared with 5% before the 1980s; costs of the internal market alone are estimated in the range of £5bn per annum.  To quote Professor Paton in his 2015 study:

    “The ‘market’ in the NHS is a major source of waste. Creating and maintaining markets has incurred huge direct costs and significant ‘opportunity costs’ – money which could have spent upon patient care and clinical redesign.”

    The Private Finance Initiative

    The Private Finance Initiative (PFI) was introduced by John Major’s Government from 1992 and was embraced by the subsequent Blair government as a means of removing spending from Government balance sheets and thus reducing public spending in the short term. Most authorities would accept that the PFI has failed, and at material cost to the taxpayer.

    The promulgation of the Neoliberal Ethos in the NHS

    Progressive neoliberal reforms have reinforced the ideology of the market. All have fragmented the provision of healthcare and siphoned public money off into private sector balance sheets, shareholder dividends and profit margins. At the same time, pressures on NHS budgets require NHS management to reduce costs. It seems that the NHS has been presented with an imperative to cut costs and handed privatisation as an alleged means to this end.

    The NHS is one of the most efficient and trusted healthcare systems in the World. One of the reasons for its efficacy and efficiency is that people are given care according to their needs and irrespective of their means. This ethos belongs to its workers as well as to the organisation; for many people who work for the NHS, it is a vocation, and they care deeply about what they do. They have the intrinsic motivation that drew me to a career in the NHS. But, over the past thirty-five years, this ethos has been progressively undermined by the neoliberal ideology that delivery and innovation must be driven by competition and the profit motive, and that input costs must be minimised. This ideology appears to have been accepted, without challenge, by every government since and by the top management of the NHS, despite many public campaigns against privatisation. The consequence of this, combined with a political austerity consensus – that the deficit must and will be reduced by cutting public spending and selling off public assets, means that cost-cutting is accepted as part of the “solution” for the NHS. In a ‘business’ where more than 70% of costs are staff related, the next leap of logic is that staff costs must be cut.[4] This is interpreted and delivered in a number of ways, all of which serve to undermine the quality and energy of the NHS workforce and which include pay freezes, dilution of skill mix, reducing “management costs “, and the outsourcing and privatisation of individual components of the NHS.

    Many people- and not just socialists- have been dismayed over the years at the continuing and relentless reorganisation, marketisation, privatisation and fragmentation of the NHS. The market, with its endless and costly hand-offs between one commercial entity and another, cripples the best efforts of professional staff and those that support them.  Not only are these hand-offs costly to procure, but they also require constant and detailed policing. Furthermore, continuous reorganisation and market testing destroy morale and organisational memory. All these results of the market take focus away from patient care. I believe that the NHS works best with a collaborative rather than a competitive ethos. Where decisions about care are driven by the needs of the patient, not by the scope for profit. Where quality is a prerogative always, not just when it helps to win a contract. Where the entire NHS budget is used to provide and support patient care.

    NHS workers bear the brunt of the rhetoric and dogma at the heart of current policy, being presented as a cost rather than a benefit, a “burden” on the state, the costs of whom must be minimised. They must” tighten their belts” like everyone else – apart from the wealthiest. Now, the biggest crisis in the NHS is the lack of qualified staff, exacerbated by the removal by the current government of bursaries for nurses and by its disastrous instrumentalisation of migrants’ rights in Brexit negotiations. ​ It is a crisis brought on by what appears to be deliberate incompetence by the Government, mitigated only by the continued introduction of qualified staff from third world countries.

    The Extent of Privatisation

    A simple measure is the proportion of NHS spend on private sector providers as reported in the Department of Health Accounts. In 2004, this was 2.8%. and in 2018/19, it was reported as 7.3%. with privatisation accelerating after the Health and Social Care Act 2012. However, these figures mask the extent of private provision within NHS providers, where many ancillary services- such as cleaning, catering, portering and pharmacy- have been outsourced since Thatcher’s 1983 initiative. There is also spending on private providers of primary care (including GPs) to take into account. After adding these into the figures, the total spend of NHS England in the private sector in 2018/19  is estimated by David Rowland, Director of the Centre for Public Health and Interest as £29bn, or 26% of NHS England spending. So, there’s little doubt that privatisation is increasing in the NHS, and that “market reforms”, compulsory tendering under EU Law (until now), and a lack of ready cash are important drivers of this. It is of huge credit to NHS workers that, despite these onslaughts and years of pay freezes and cuts to services, they soldier on.

    Consultation on Integrated Care Systems

    The fragmentation forced by the disastrous 2012 Health and Social Care Act exposed the gross dysfunction of the internal market. It set commissioners against providers in an endless spiral of tactics to gain at the expense of the other, at huge administrative and organisational cost. The concept of the ICS could, in theory, see a return to the local system approach adopted in District Health Authorities (DHAs) prior to NHS marketisation, with funding being based on populations adjusted for cross boundary flows, with no internal market, and with local systems agreeing plans and setting budgets and quality standards for local services. This would provide the opportunity to remove layers of bureaucracy and unnecessary accounting and contracting and enable savings to move out to fund the front line. But it is clear from the consultation document that this is not the intended approach. And neither was this ever intended.

     

    The very core purpose of ICSs is to drive down care based on demanding cost savings targets imposed by the Government, in a service that is already one of the most efficient in the world. The ethos, even the language[5]  is that of the American accountable care system, where being seen to be cutting costs (and creating an industry out of that) is a key organisational driver and measure of success. And it is crystal clear that the policy march started by Thatcher and continued through Major, Blair, Brown, Cameron and May was to implement the Kaiser Permanente model first introduced by Alain Enthoven, and whose thinking was adopted by the Central Policy Think Tank when the internal market was first introduced into the NHS

    Specific Areas to address in the consultation document (and for Labour to develop) are suggested as follows:

    • the document retains the language and structure of the internal market in that it refers to provider organisations and provider collaboratives, and commissioners. The inference is that fragmentation can be addressed by provider collaboration (and, presumably, ultimately merger). Thus, it intends to retain the most pernicious and inefficient components of the internal market. A socialist radical approach (and which is Labour Policy) would be to remove the internal market altogether, and focus on quality assured service provision, supported by rigorous benchmarking of quality and cost and an overarching strategic and operational planning function. Undoubtedly there are extraordinarily strong vested interests in retaining the status quo, with “providers” having developed as big businesses in their own right.
    • The consultation document refers to “digital and data” to drive system working, and yet there appears to be no single NHS solution for this. Instead, there is a “Framework” calling on a wide range of “providers”, and the suggestion that there should be “shared contracts and platforms to increase resiliency”. An alternative to this would be an NHS-wide and provided digital data and information service.
    • Each System/Geographic area will have its own pot of money covering the whole of local spending on healthcare. Transactional costs are intended to be reduced through the “blended payment” model. An alternative approach would be to remove tariffs and set budgets based on the costs of the services required by the system. These costs could be budgeted on a variable basis using agreed parameters (such as variable capacity requirements).
    • Specialised Services need to be planned on a larger geographical footprint than other general services. This will require collaboration and planning between ICSs so that the needs of each ICS population are met in an equitable and efficient way. The funding for the relevant services should sit with the local ICS (managed on the same principles as RAWP with DHAs) so that they have the funding required to budget for all their locally provided services. Whatever mechanism is put in place should minimise transaction costs.

    [1] In a speech at the Royal College of Pathologists on 2 November 2009, Cameron said: “With the Conservatives there will be no more of the tiresome, meddlesome, top-down re-structures that have dominated the last decade of the NHS.”

    [2] https://www.somersetlive.co.uk/news/health/virgin-care-set-lose-multi-2038196

    [3] Based on tariff data collected internally by NHS England in 2018/19

    [4] “‘Since it takes time to train skilled staff, (for example, up to 13 years to consult), the risk is that the NHS will lock itself into outdated models of delivery unless we radically alter the way in which we plan and train our workforce. HEE will therefore work with its statutory partners to commission and expand new health and care roles, ensuring we have a more flexible workforce […]” [5 Year Forward View, page 30.]

    [5] Along with the structures, the purpose, and the key role of US healthcare corporations in importing it to the UK, even phrases like “Right care, right time, right place” to advertise the NHS Long Term Plan’s service closures programmes, are lifted straight from the language of accountable care in the US. It is not a coincidence that the Healthcare Financial Management Association (the professional organisation representing finance professionals in the NHS) has, for many years, operated an exchange programme with the US, and with many conferences featuring US healthcare models. The HFMA offers courses based on the US model.

    6 Comments

    John Lister (editor Health Campaigns Together, co-editor The Lowdown)

    This is an opinion piece – it is not SHA policy

    Despite all the other issues that might be expected to be priorities, it seems NHS England remains focused on driving through its plans for yet another reorganisation, to establish a network of 42 “Integrated Care Systems” (ICSs) to control services at local level – and possibly even fewer than that, with the possibility some smaller ICSs might also merge

    A new 39-page NHSE consultation document “Integrating Care” at the end of November follows on from a volley of instructions to local health chiefs in a circular on July 31, which appeared to be about rebuilding services after the first peak of Covid infection, but took the opportunity to drive forward the process of merging Clinical Commissioning Groups (CCGs) and establishing ICSs in a final page of instructions.

    The new document piles on pressure for prompt government action, setting an ambition of securing new legislation that would allow the whole of England’s NHS to be run through ICSs by 2022.

    It makes the extraordinary claim that the establishment of ICSs – driven relentlessly from the top by NHS England, and resisted at local level by local government bodies, GPs and campaigners – is in fact “a bottom-up response.”

    It rehearses the stock arguments for creating ICSs, with lofty, inflated and largely baseless claims that the handful of early ICSs “have improved health, developed better and more seamless services and ensured public resources are used where they can have the greatest impact.” In fact all the improvements that have been made along these lines have been made under existing legislation, with ICSs, lacking power or authority, having been able to do little or nothing.

    There are also multiple references to “digital” and “data” as ways of driving system working and improving outcomes, despite the lack of evidence for these claims. New “digital” technology and number-crunching for “population health management” are among the more lucrative areas in which private companies from the US and elsewhere are seeking to gain a profitable foothold, not least through the Health Systems Support Framework established by NHS England.

    Many campaigners remain justifiably suspicious of the extent to which ICSs, which have been set up and function largely in secret, would be in any way accountable to local communities if given statutory powers.

    And while Integrating Care argues for the need to establish ICSs as “statutory bodies” with real powers, notably “the capacity to … direct resources to improve service provision,” there are real fears that NHS England, facing more years of tight and inadequate budgets, sees ICSs and system-wide policing of finances as a way of more ruthlessly enforcing cash-cutting reductions or restrictions on availability of services through “control totals” limiting spending across each ICS, and growing lists of excluded “procedures of limited clinical value”.

    The HSJ, normally happy to go with the flow of NHS England, has pointed out how vague are the proposals in the new document, and raised questions over funding:

    “While the paper makes it clear the current system doesn’t work, it gives little indication of what a better solution will look like and how that efficiency drive will be maintained.

    “For example, it said ICSs will be given a ”single pot” of money from which to manage spending priorities. But there is no framework for how this will be spent that assures fairness, value for money and quality outcomes.”

    Integrating Care suggests two alternative routes to establishing a legal status for ICSs; one by setting them up as new “joint committees” once the remaining unmerged CCGs had been merged to leave one per ICS, with the resulting loss of local accountability. The joint committees would enable NHS “commissioners, providers and local authorities” to take decisions collectively, although NHSE admits that this leaves “many questions” about accountability and clarity of leadership unresolved.

    In the second option an ICS would effectively take the place of a CCG, replacing its governing body (along with its GP membership model) with a new board consisting of representatives from the “system partners” – including representatives of NHS providers, primary care and local government alongside a Chair, a Chief Executive and a Chief Financial Officer. In other words the CCGs, having been merged into bodies far larger in scope than the original 207 CCGs, would be abolished, with their commissioning role taken over by the ICSs.

    This second model is the one favoured by NHS England. But it has raised concerns amongst GPs, some of whom fear that they and primary care as a whole would once more be marginalised by new structures that could be dominated by bigger providers, and especially by large-scale acute hospital trusts.

    GP Online has highlighted “alarm” among GPs over the development of ICSs, and a recent motion adopted by Doctors in Unite which warns:

    “ICSs have been introduced and developed undemocratically, without consultation and with a lack of transparency. Their aim is to impose ‘reduced per capita cost’ control totals to force unproven and unsolicited innovation, including elements of privatisation and paid for care, in each system’s struggle to meet local population need.”

    NHS Providers, representing trusts and foundation trusts, has also expressed some reservations, warning that:

    “It makes sense to collaborate and deliver different services at different levels of scale, but all of these partnerships will need appropriate resourcing and cannot necessarily continue operating from within the existing staff base. …

    “What we do know is that trust leaders – and partners from across the health and care system – are cautious about any top-down, inflexible reorganisation of the NHS, particularly in the middle of a pandemic.”

     

    Will ministers back NHSE plan?

    While NHS Providers expect an NHS Bill to be announced in the next Queen’s Speech and introduced in the late spring next year, this is up to ministers. In pushing hard and publicly now for legislation NHSE might be motivated by concern that the Johnson government (whose manifesto this time last year promised legislation to carry through NHS England’s Long Term Plan, which includes ICSs) may have since changed tack.

    Last month the Department of Health published outline plans for “Busting bureaucracy” which appeared to back the NHSE approach, and committed to “bring forward legislative reform to reduce bureaucracy and promote collaboration across the health and care system,” building on “previous NHS recommendations to remove the two current procurement regimes which apply to clinical healthcare services and replace them with a new procurement regime.”

    However revelations that Matt Hancock had been held back during the summer from plans to speed through the promised changes, and that  a secret Downing Street “task force” on health policy has been meeting over the summer and autumn – without inviting NHSE chief executive Sir Simon Stevens – suggest the PM may have been steered away by his advisors from what appeared to be a common agenda.

    The only legislation on the NHS since last December’s election gave Johnson a Commons majority of 80 was to lock in the government’s inadequate promise of an extra £20 billion in real terms (£33.9bn in cash terms) by 2024 – effectively limiting government health spending.

    And while the Covid pandemic has clearly preoccupied ministers and MPs since the early spring, the lack of any firm timetable or commitment for government action does raise the possibility that they have pulled back from the new legislation which NHSE argues is necessary to roll back key sections of the 2012 Health and Social Care Act – and pave the way for ICSs.

    However we should not confuse NHSE’s moves to limit the requirement to put services out to tender with rolling back privatisation. As we have seen with so many Covid contracts, awarding contracts without competitive tender does not by any means end privatisation – or the “market” in health care, separating purchasers (commissioners) from providers.

    The whole focus of NHS England’s proposals is on limiting contracting and competitive tendering …  to clear the way for even large-scale mergers of providers, which are free to involve the private sector as “partners” or as sub-contractors.

    The Lansley Act’s version of tendering has already to a large extent been supplanted by the proliferation of “Framework contracts” in which NHS England or its privatisation sub-division NHS Shared Business Services sets up a list of pre-approved providers including private companies, non-profits and some NHS-led organisations, which can be allocated contracts WITHOUT formal tendering or competition, or from which a small group can be selected for a ‘mini-competition’.

    Because no public process or advertisement is required, this type of contracting out/privatisation can take place with little or no public scrutiny.

    So far, regardless of the government’s obvious hesitancy, it appears that the consensus assumption within the NHS is that NHSE will get legislation along the lines it has requested.

    Even then there are many unknown factors. How far does Johnson’s clique of advisors really want to go with NHS reform? How fast?

    How much priority can they and will they give it as Brexit chaos breaks out from January?

    Do they really want now to marginalise Stevens and replace him with a more pliable Tory crony like Dido Harding – who would lack any credibility with NHS chiefs?

    What we do know is that whatever the organisational changes, without additional revenue and capital funding and a properly resourced workforce plan the NHS is headed for constant crisis.

    And for the Johnson government to assert greater central control over the NHS as it fails, or visibly attempt to privatise the most popular public service would be risking electoral disaster. We will have to wait to see which way they will go … and whether Johnson will – as rumoured – reshuffle his government, or even seek an early exit from Downing Street.

    Problems for campaigners

    There are also tough decisions for campaigners on how best to respond. The process of transition from CCGs towards ICSs is already well-advanced with the majority of CCGs already merged, and 29 of the target 42 ICSs now formally in place. This makes any nationally coordinated campaign extremely difficult.

    However the mergers have also served highlight the fact that defending the status quo against NHS England’s plans is also a non-starter, since merged CCGs are already showing themselves more than capable of implementing policies as bad as many fear from ICSs.

    In Nottingham, for example, the merged CCG covering the city and the whole county has embarked on a vicious combined attack on one of the best performing primary care practices in the area, putting the services up for tender while slashing the per capita funding by over 40% – with a subsidiary of the US-owned Centene corporation apparently lined up to snatch the contract.

    With CCGs as bad as this, and with as little accountability to local communities, ICSs could prove to be little worse.

    So while campaigners will continue to resist the forced mergers of more CCGs, the wider campaigning goal must not be limited to retention of the structures created by the 2012 Act.

    NHS England want to repeal only selective parts of the Act. But to create any chance of genuine local accountability it’s necessary to scrap the remaining elements of the Act and the competitive market and purchaser/provider split it entrenched, to roll back tendering and privatisation, and create unified local health boards.

    In other words the alternative would be genuine re-integration of health services split asunder since the days of Margaret Thatcher. However there’s no sign of any government appetite for such progressive reform, or of opposition pressure in this direction.

    So with the Johnson government still bolstered by a huge Commons majority it appears that for the time being genuine integration is an ambition that is largely limited to propaganda, while campaigning focuses on exposing the flaws in the current system and fighting every move that advances privatisation.

    (This article is adapted and updated  from an article in The Lowdown (December 6).

    Comments Off on NHS England pushes for “integration” … but not as we know it
    There has been too much reliance on the private sector when it comes to laboratory testing for coronavirus and not enough investment in long-established NHS facilities, Unite, Britain and Ireland’s largest union, said today (Wednesday 16 September).
    Unite’s stance is underpinned by its Biomedical Scientist Covid-19 survey, launched today, which highlights the under-use of NHS science facilities and resources as the crisis over the nationwide gaps in the Covid-19 testing regime escalates.
    The survey reveals Unite members’ unhappiness at the government’s reliance and priority given to the seven Lighthouse Laboratories, with private sector involvement, while long-established NHS facilities are being apparently sidelined when it comes to investment.
    The report is being sent to health and social care secretary Matt Hancock, and the chair of the Commons health and social care select committee Jeremy Hunt, as well as MPs.
    The survey said: Concerns about under-utilisation of NHS resources were matched by concerns around the introduction of the new Lighthouse Laboratories and the impact this was having on NHS services.
    “Broadly these concerns focused on the quality of services provided, the diversion of resources from the public sector and the decision making, and transparency process used to commission these new laboratories.
    Healthcare science staff and their trade unions have been left in the dark regarding these processes.”
    More than 85 per cent of the survey’s respondents agreed that there was concern about the service quality from the Lighthouse Laboratories and over 90 per cent concurred that there were worries about the transparency and contracting arrangements for these laboratories.
    In contrast, only 38 per cent said their NHS laboratories were working at full capacity, but there was near unanimous support for further investment in NHS labs, so they are well-placed to undertake the mass testing of millions envisaged by Operation Moonshot.
    Unite said that Operation Moonshot should not become ‘an ill-deserved pay day bonanza’ for private healthcare companies which had fallen short during the pandemic to the extent that they have asked the NHS to help out.
    Unite lead officer for healthcare science Gary Owen said: “The government’s obsession with involving the private sector in the Covid-19 ‘trace and test’ regime has been shown to be flawed and misguided, as more and more people report difficulties in trying to get a test near to their home.
    “If ministers have learnt any lessons from Covid-19 it should be that the NHS, with the right level of investment, is best placed to provide laboratory testing for such a global pandemic as we are currently going through.”
    Chair of the Unite healthcare science committee Ian Evans said: “Long-established NHS laboratories with a wealth of professional experience built up over decades appear to have been marginalised in the battle against coronavirus – this has been a huge mistake.”

    The report can be accessed via:

    https://unitetheunion.org/media/3331/9199_biomed-scientists_survey_summer2020_final-digital.pdf

    The survey was distributed on two dates in June by email to all Unite members within healthcare science. This snapshot survey generated 388 responses from across the UK.

    Unite senior communications officer Shaun Noble

    Comments Off on Stop private sector outsourcing, as NHS laboratories ‘sidelined’ for Covid-19 testing, says Unite
    Proposals to create a new super NHS laboratory in the northwest by closing local sites while 200 biomedical scientists are busy testing for Covid-19 will create delays in processing samples, Unite, Britain and Ireland’s largest union, warned today (Thursday 7 May).
    Unite said the plans by Lancashire and South Cumbria Central Laboratories Partnership to merge the labs at Blackburn, Blackpool, Lancaster and Preston into one super lab at a yet–to-be identified site would mean delays in testing samples which would have a detrimental impact on the estimated 500,000 people the super lab would serve.
    Unite, which has 100,000 members in the health service, accused NHS bosses of using the coronavirus emergency to push through this already rejected merger plan ‘under the radar’ when other similar collaborations, such as at Guy’s and St Thomas’ NHS Foundation Trust, have postponed all further plans until the Covid-19 crisis has passed.
    Unite said the plans were ‘a stab in the back’ for the biomedical scientists currently working at full stretch to process lab samples, including those for Covid-19, who have not got the time to examine the plan.
    Merger plans for a super lab at Lancaster, covering the areas of five NHS trusts, were rejected last year as it would make the service too remote from local GPs and hospitals, and increase processing times from the current 24-to-48 hours.
    In a letter to the partnership, Unite regional officer Keith Hutson said: “Unite finds it totally unacceptable that during the Covid 19 crisis you have seized upon this opportunity to force through merger plans and exclude the participation of Unite, the main representative of laboratory workers for this project.
    “Unite calls upon this project to cease until the Covid-19 crisis has ended.  I can say that apart from the despicable manner the trusts have chosen to progress this matter, be aware that when it is appropriate Unite, if necessary, will move to immediately ballot its members for industrial action.”
    Commenting Keith Hutson added: “NHS bosses are using the pandemic to reintroduce this flawed plan under the radar which will increase the times for processing samples. Our members who have given their all during this crisis feel the deliberate lack of consultation is a stab in the back.
    “We are going to involve the region’s MPs in this campaign, including The Speaker Sir Lindsay Hoyle, MP for Chorley, as, in the long-term, we fear that any super lab could be ripe for being sold off to a profit-hungry healthcare company.
    “If one thing has become clear during the last two months, it is that the British public respect and deeply value the NHS and its staff – and don’t want to see it being salami-sliced and privatised.”
    Twitter: @unitetheunion Facebook: unitetheunion1 Web: unitetheunion.org
    Unite is Britain and Ireland’s largest union with members working across all sectors of the economy. The general secretary is Len McCluskey.

     

    3 Comments

    One on International Trade dispute settlements and the other on Social Care.

    These are not official SHA policy.

    Issues for the NHS during UK Trade deal Negotiations

    As socialists we have an almost irreconcilable set of principles

    Comments Off on 2 papers from Jean Hardiman Smith

    Integrated Care is the most recent re-naming of Accountable Care: the system currently being implemented in the NHS in England and which is derived from the US. This blog addresses issues arising from this implementation and whether or not Integrated Care is fit for public purpose.

    The narrative that comes from Westminster, echoed by parts of the media and even some campaigners, is that whilst cuts and closures, underfunding, understaffing and poor NHS management at the highest levels are all contributory factors to the problems the NHS faces, there is no overarching concern with Integrated Care itself.

    On the contrary, the bringing together of commissioners (purchases of services) and providers of services is viewed as getting rid of the hated ‘purchaser-provider split’ which is isolated in this narrative from all other structural components and becomes a proxy for the market system. On this point alone the move to Integrated Care is seen as a stepping stone to a return to public service. There is even some movement to reclaim ‘integrated’ as a term of public service.

    There are very good reasons why tackling this issue head on may be politically sensitive. Labour is keen to claim for itself not only the creation of the NHS (which it historically deserves) but a current role as the best defence against Trump. The Secretary of State for Health also claims that he will not allow the NHS to be in US-UK trade talks ‘on his watch’. That is understandable, but the love affair of the major UK political parties with United Health and Kaiser Permanente, amongst others, goes more than skin deep. US Integrated Care has been introduced into the NHS piecemeal over the last 30 years and we are now into the full adoption of an NHS ‘version’ being rolled out at speed. It’s here where the argument lies for politicians, think tanks and amongst campaigners . A question mark is raised over its origins and over whether it is irredeemably bad for the NHS or not.

    Our counter argument is threefold:
    1. The Integrated Care System does not in fact remove the ‘purchaser-provider split’, but merely changes it to a different type.
    2. The constraints put upon the NHS to meet the requirements of Integrated Care are set out in terms of restructuring the service in such a way that it will no longer meet the key tenets embedded in it from its creation: delivering all services for everyone within (mostly) easy reach.
    3. “One thing the community cannot do is insure against itself. What it can and must do is to set aside an agreed proportion of the national revenues for the creation and maintenance of the service it has pledged itself to provide.” Bevan’s statement worked on a national level while the ICS model creates a risk and reward system in which profit and loss are to be shared locally between the constituent players of 44 ‘local health economies’. This is entirely upending the basis for financing the NHS.

    Integrated Care
    The concept of Integrated Care is a longstanding method in the United States which was created to try and reduce the healthcare costs which are spiralling out of control. The most expensive part of any healthcare system anywhere in the world is acute care. It needs higher concentrations of staff per patient, more infrastructure – both buildings and equipment – and changes more rapidly than other parts of the service in its response to technological advances.
    It follows from an accounting point of view that any measures which can be taken to ‘reduce demand’ on the acute sector will reduce costs. Part of the cost reduction exercise in the US involves forming collaborative bodies (Accountable Care Organisations aka Integrated Care) which share profit or loss across the different constituent bodies – that is to say the insurance groups who provide the funding from their clients (state or private) plus various hospitals, GP practices and other health services. The profit and loss sharing is designed to provide incentives for keeping people out of hospital and in theory to keep them more healthy in the community.
    From the above, it is clear that purchasing and providing still exist within US Accountable Care and that it in no sense represents a return to the kind of planning required to run a public service NHS. The same is true of the system being implemented in England.

    Restructuring the NHS
    In order to attempt to meet the accounting criteria behind Integrated Care, the NHS’ historical provision of local GP family practices, local District General Hospitals that include full Accident and Emergency and other local services must be dismantled. Acute and emergency provision is calculated to be more cost effective if it is concentrated in hospitals that service a much larger population. Local hospitals then become satellites to the centralised major trauma hospital no longer offering the full service we are used to.
    GPs are being corralled into much larger units which may run the satellite hospital or work from large centralised clinics. Property made ‘surplus’ from these restructurings can be sold as a result.
    These changes are an intrinsic part of the development of Integrated Care. They are not optional, nor do they come about only as a result of the last nine years of below inflation funding.
    None of the descriptions above are based on assumptions. They all come from official NHS England and Sustainability and Transformation Partnership policy documents. The reality is evident on the ground.

    Risk and Rewards
    “Risk and reward sharing is underpinned by a theory of change that expects a provider to adjust its behaviour in response to financial incentives”
    Early adopters of the ACO model in 2012 in the US, known as Pioneers (see our report on ACOs for more details), were allowed to move to a full capitated budget. This represents the full transfer of risks from the commissioner to the ACO and it means the ACO has the incentive to cut costs in order to maximise its profit share from the budget. As in those early pioneer ACOs, NHS England has made it clear that it wishes to pass all financial risks to the Integrated Care Systems. But unlike the US model, an NHS ICS does not necessarily have to include acute hospital services in its provider collaboratives. As the greatest losses fall on acute hospital services this creates the possibility of a collaborative being formed only from those providers who can best make profits.
    Our report into ACOs explains how many of the participants in the early US pioneer programme failed to see many of the implications of a shared savings programme, seeing only its potential benefits. They later discovered that they had serious financial difficulties.
    This question of risk and reward sharing is one of the most important issues for an NHS provider and illustrates how they have moved from being government provided services to government commissioned services. Under this scheme an NHS provider could potentially suffer significant losses risking its financial viability to the point where it may collapse as a business.

    The failures of private sector providers, as we have seen in recent years, causes inconvenience for commissioners and loss of services for patients but the potential collapse of an NHS body would have far more serious ramifications. There is also the case where a majority of an ICS’ services are provided by private sector organisations which opens the door to profits flowing out of NHS funds. Furthermore the arrangements for how both risks and rewards will be shared between providers adds another layer of complexity to the transaction costs of the NHS. This, of course, provides yet more work for management consultancies, big accountancy firms and lawyers.

    What’s to be done?
    We fully appreciate the desire of campaigners to achieve victories in the face of what feels to be overwhelming odds. Each local victory does throw a welcome spanner in the works. However, to ignore the structural changes being brought in and not to recognise the part that each individual closure or downgrade plays in the overall pattern of change is to ignore the elephant in the room.
    That is why we think the slogan ‘Act Local, Think National’ should always be embedded in every campaign. It is important to understand that the national picture gives the corporate sector a major role in the future of the NHS as it has done increasingly over the last thirty years and that the model currently being adapted is specifically based on US Integrated Care.
    This is a system built fundamentally on business principles with competition and the profit motive in its DNA. This is not a system that lends itself to public ownership and provision serving the public interest.
    President Trump’s statement about the NHS being on the table in future trade talks set off a raft of responses including Jeremy Corbyn tweeting, ‘Labour will [..] ensure US private companies cannot lay a hand on our NHS. The NHS is not for sale’ and Matt Hancock saying, ‘not on my watch’. It has understandably provoked a lot of comments on social media and discussions in the press about the importance of keeping the US out of the NHS in the future. But the challenge is to change the conversation so that we openly oppose US corporate interests influencing our NHS now.

    Deborah Harrington

    Who We Are

    4 Comments

    This article was first published in the Camden New Journal under the title, Brexit, and spectre of NHS US sell-off, on 16 May 2019.

    There is much talk at the moment about the prospect of Brexit resulting in a trade deal with the US which will sell off our NHS to American private healthcare providers.

    This fear has also been expressed by Shadow Health Secretary Jonathan Ashworth. [1] But it is critical to understand this “sell-off deal” has been under way for a long time and is fast gaining momentum, argue Susanna Mitchell and Roy Trevelion.

     

    The driver of the “sell-off deal” is Simon Stevens, who in 2014 was appointed head of NHS England, the body that controls all NHS spending. Before this, Stevens had been vice-president and CEO of the mammoth American healthcare corporation the UnitedHealth Group.

    Stevens has proceeded to “Americanise” the service through his subsequent NHS policy, based on a privatisation strategy he had outlined at the World Economic Forum at Davos in 2012. [2]

    From first to last, his NHS policy – the Five Year Forward View, the Sustainability and Transformation Plans and Accountable Care Organisations (renamed Integrated Care Programmes) that back it up, and now the 10-year Long Term Plan – have worked to import the US model into the UK.

    Unsurprisingly, the UnitedHealth Group will make major gains from this transformation. It is now the largest healthcare company in the world, with a 2018 revenue of $226.2 billion. It has many secondary companies that serve more than a hundred-million people globally. [3]

    Over the years it has been prosecuted for fraud and bad faith practices. This included limiting insurance payments to doctors, and not stating its true financial results in reports to shareholders. [4] [5]

    One of its fastest growing subsidiaries is Optum (formerly UnitedHealth UK). This is a leading information technology- enabled health services business. In February 2015, it was one of the commercial organisations approved by NHS England as “Lead Providers” to carry out the financial work of GPs.

    It is now firmly positioned in the system and ready to take away more public money. [6]

    The healthcare system in the United States is hugely more costly, and outstandingly less effective than that in the UK. In terms of funding and wellbeing, there is no rational argument for imposing it on our NHS. The only benefit it brings is increased profits for shareholders in the commercial healthcare sector.

    To take three examples, first comparing cost:

    On average, other wealthy developed countries spend about half as much per person on health as the US – in the US $10,224 compared to $4,246 in the UK. In 2017 the US federal government spent 7.9 per cent of GDP directly or indirectly on healthcare; however in total, taking into account private expenditure, the US spent a vast $3.5trillion or 18 per cent of GDP. This private sector spending is triple that of comparable countries. [7] [8]  This structure excludes many citizens from affordable health­care. Appallingly, one in four adults skipped a medical treatment in 2017 due to an inability to pay. [9]

    Secondly, from the point of view of efficacy and wellbeing, statistics are also devastating. The US has the lowest life expectancy at birth among comparable countries (US 78.6, UK 81.2). Statistics show that life expectancy for both men and women has increased more slowly in the US. It comes 12th in the global life expectancy table. [10]

    Thirdly, the US maternal mortality rate is truly shocking. It stands at 26.4 per 100,000 live births, the worst among all developed countries. [11]

    In the UK the rate stands at 9.2 per 100,000. [12] [13]

    Deaths for African-American women are three to four times higher than for white women. [14]

    The infant mortality rate is also worse. The US rate is 5.79 deaths per 1,000 live births. [15]  The UK rate is 3.8 deaths per 1,000 live births. [16]

    It is clear that if we follow the American model of healthcare it can only reduce wellbeing in the UK. Simon Stevens’ “sell-off deal” simply increases the wealth of global corporations (such as the Mayo Clinic, which has recently opened in London [17]).

    It is time that this fact was “called out” loudly and clearly. All possible measures must be taken to prevent the continuing imposition of this ineffec­tive and costly system.

    Susanna Mitchell and Roy Trevelion are members of the Socialist Health Association.
    References, some links, live at the time of writing, may not have been maintained:
    [1] BBC Question Time 25.04.2019  at 47.21 ff  https://www.bbc.co.uk/iplayer/episode/m0004hkk/question-time-2019-25042019 .
    [2] https://www.sochealth.co.uk/2017/05/25/truth-stps-simon-stevens-imposed-reorganisation-designed-transnational-capitalism-englands-nhs-stewart-player/
    [3] http://selloff.org.uk/nhs/CVforSimonStevens260516.pdf
    [4] https://www.sec.gov/news/press/2008/2008-302.htm
    [5] https://law.freeadvice.com/insurance_law/insurers_bad_faith/unitedhealth-pays-400-million-in-bad-faith-claim.htm
    [6] http://selloff.org.uk/nhs/CVforSimonStevens260516.pdf
    [7] https://www.crfb.org/papers/american-health-care-health-spending-and-federal-budget
    [8] https://www.healthsystemtracker.org/chart-collection/health-spending-u-s-compare-countries/#item-average-wealthy-countries-spend-half-much-per-person-health-u-s-spends
    [9] https://www.federalreserve.gov/publications/files/2017-report-economic-well-being-us-households-201805.pdf
    [10] https://www.healthsystemtracker.org/chart-collection/u-s-life-expectancy-compare-countries/#item-le_the-u-s-has-the-lowest-life-expectancy-at-birth-among-comparable-countries_2019
    [11] https://www.npr.org/2017/05/12/528098789/u-s-has-the-worst-rate-of-maternal-deaths-in-the-developed-world?t=1560004210914
    [12] https://vizhub.healthdata.org/sdg/
    [13] http://digg.com/2017/uk-birth-us-safety-comparison
    [14] https://www.huffingtonpost.co.uk/entry/elizabeth-warren-black-maternal-mortality_n_5cc0e93fe4b0ad77ff7f717b?guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAACQmWXh6QTnSJI5sjLN1KEdQCuSnVb__LEQLJAyEiK2PZwqnVABYxo500JrU24NHWCooflTZAia50H4OJ-YzSPMUqXyGODWHMGcBXUxhfVY-fau-ViM-Ly9n32SQ1vXD-SGhWXohZRVo2givDSEbM1D3TVs38R5MjmfY_5rGZXuP&guccounter=2
    [15] https://www.cdc.gov/nchs/nvss/deaths.htm
    [16]https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/bulletins/childhoodinfantandperinatalmortalityinenglandandwales/2016
    [17] https://www.medcitybeat.com/news-blog/2019/mayo-clinic-oxford-university-clinic-partnershiphttps://www.medcitybeat.com/news-blog/2019/mayo-clinic-oxford-university-clinic-partnership.

     

     

    1 Comment
    All the Tory contenders to be prime minister should categorially rule out the NHS being part of any future US/UK trade deal, Unite, Britain and Ireland’s largest union, said today (Wednesday 5 June).
    Unite, which has 100,000 members in the health service, said the new prime minister ‘should not offer up the NHS as a sacrificial lamb to US president Donald Trump’.
    Unite national officer for health Colenzo Jarrett-Thorpe said: “The Tory prime ministerial contenders need to put the national interest – in this case, the safeguarding the NHS from US privateers – before the personal ambition of getting their hands on the keys to 10 Downing Street.” 
    Concern about what a US/UK trade deal could mean for the NHS has heightened this week following remarks by Donald Trump and his ambassador in London, Woody Johnson about the NHS being included in a future US trade deal
    Colenzo Jarrett-Thorpe added: “The NHS is the UK’s greatest achievement – but for Trump and his ilk, who despise the very idea of universal healthcare free at the point of delivery, all they can see is the money to be made from the sick, frail and vulnerable. 
    “This was made obvious by the US ambassador’s very frank comments about his country’s intentions towards the NHS in any future US/UK trade deal, a point that was again made by Trump himself. The president’s comments today are not reassuring in any way. Unless the government categorically says that the NHS is not for sale, then patients and staff will face increasing uncertainty and worry.
    “The Tory leadership hopefuls need to state categorially to the British public that the NHS is not up for sale to profit hungry US private healthcare companies as part of a future trade deal.
    ‘Leading Tories and their cheerleaders in the media may think that the US offers a blueprint for how a post-Brexit Britain should be – however, it should not be forgotten that millions of Americans don’t have any health insurance which does not inspire confidence.
    “We strongly believe that the NHS should not be offered up as a free trade sacrificial lamb to the mercurial whims of Donald Trump – our sick, frail and vulnerable deserve so much better.”

     

    Comments Off on NHS should not be ‘sacrificial lamb’ in any US/UK free trade deal, says Unite

    The following article was first published in the Camden New Journal on 06 December, 2018

    A private company being promoted
    by government to recruit patients to its doctor service spells ruin for the whole-person integrated care we need from the NHS, argue
    Susanna Mitchell and Roy Trevelion

    The sneaking privatisation of our National Health Service now aggressively threatens our GPs. In Camden and across London, we all need to be aware of the long-term harms this development will cause GPs and primary care NHS services.

    Last year, a global multinational corporation called Babylon Healthcare – owned by a former Goldman Sachs investment banker and Circle Health CEO – established a “digital- first” business called “GP at Hand”.

    Disastrously for the NHS, Babylon Healthcare Services Ltd can be traced back to a holding company in Jersey, the offshore tax haven.

    GP at Hand is contactable through a mobile app which uses standard calculations as a symptom checker. Unfortunately NHS England have not provided our existing practices with this software.

    Instead any patient registering with this commercial enterprise will be deregistered from their normal GPs. And, although the GPs employed by the company can also be accessed by video or phone, this process delivers no continuity of care or whole-patient assessment.

    Continuity of care is a cornerstone of general practices. However, Matt Hancock, the health secretary says, “If we need to change the rules to work with the new technology then change the rules we must.”

    In addition GP at Hand’s own promotion material actively discourages older people from registering. Explicitly these are those who are frail or living with dementia, or in need of end-of-life care. Pregnant women and those it describes as having complex social physical and psychological needs are also discouraged from signing up.

    In other words it is “cherry-picking” young and healthy patients who will be more profitable to its shareholders. Its use of standard practice via information technology, and the easy access it offers, is particularly attractive to the young.

    Of the 31,519 new patients who have signed up with GP at Hand over the past 12 months, 87 per cent are aged between 20 and 39 years, while patients over 65 now make up just 1 per cent of the population registered with the service.

    All this poses serious problems both for patients and general practices. In the first place, our present primary care system consists of GP practices committed to whole-person and integrated care for everyone in their local communities. Healthcare services are organised around geographic areas to enable better co-ordination with hospitals and social services.

    In contrast to this, GP at Hand fractures this fair and impartial community-based model, registering patients who live or work anywhere within 35 to 40 minutes of one of the clinics. In addition, should any of their patients require more complex care, they will no longer have their own GP to turn to.

    Secondly, by picking the most profitable patients, GP at Hand drains money away from ordinary GP surgeries. Normal GPs are funded according to the number of people on their patient list and this funding is combined into a single budget to provide the services they offer. This means that funding from the roughly 80 per cent of patients who remain reasonably well helps to pay for the 20 per cent who are elderly, who are chronically sick, or have multiple illnesses.

    But if the “capitation fee” of the young and healthy is scooped up by a for-profit company like GP at Hand, it will critically undermine the funding available to surgeries. This will leave practices to deal with the sick, the frail and the old on a much reduced budget.

    Shockingly this commercial entity is funded by NHS England. It can be commissioned through our clinical commissioning groups (CCGs).

    It’s expanding fast, and already has over 35,000 patients. Currently the corporation operates out of five clinical locations in London including one in King’s Cross. Plans for rolling it out nationwide are under discussion. It is also advertised widely, with the health secretary Matt Hancock recently announcing that he has registered with the company.

    Future developments in information technology and artificial intelligence that can be useful to our public health systems should be funded directly towards our existing GP surgeries.

    It should not be used as a vehicle for profit-making by private corporations at the expense of our NHS.
    We need to make the dangers of adopting this business model clear to the widest possible public. We must encourage those who care about our publicly-funded NHS to boycott Babylon’s GP at Hand.

    We need to bring public pressure to bear and end this attack on a valued and trusted institution that serves us all.

    The NHS has always been for the benefit of everybody. It must be kept that way.

    • Susanna Mitchell and Roy Trevelion are members of the Holborn & St Pancras Labour Party and of the Socialist Health Association.

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