Category Archives: Competition and markets

In 2009 the internal market was abolished in the Welsh NHS. Seven unified Health Boards (and three trusts – Ambulance, Public Health and Velindre cancer services) took over the responsibility of the former 22 Local Health Boards and most of functions of the seven Trusts to both plan and deliver health care for the population resident in their geographical areas.

In the initial phase following the internal market abolition the acute hospital sector seemed to have “captured” the planning process. But as things have matured the Welsh Government has sought to re-balance matters with the introduction of Integrated Medium Term Plans (IMTP).

All NHS organisations are now expected to operate to three yearly IMTPs as part of their planning cycle. The latest framework covers the period 2018-2021 with yearly iterations providing firm plans for the initial year, indicative plans for Year 2 and outline plans for Year 3. At the heart of the process is the creation of a collaborative approach which will be sufficiently robust not only to withstand the continuing pressures of austerity but to deliver real improvement for patients, service users, carers and wider public health.

The planning framework ( http://gov.wales/docs/dhss/publications/171013nhswales-planning-frameworken.PDF ) and the IMTPs continue to be informed by the principles of “Prudential Healthcare” ( http://www.prudenthealthcare.org.uk/ ) and an emerging distinctive Welsh legislative backdrop including the Mental Health Measure (2010), Social Services and Well-being Act (2014), The Well-being of Future Generations Act (2015),  Nurse Staffing Levels Act (2016) and Public Health Act (2017).

The planning and delivery process needs to achieve the “Triple Aim” of improving outcomes, improving the user experience and achieving best value to money supplemented by the Parliamentary Review’s ( http://gov.wales/docs/dhss/publications/180116reviewen.pdf ) recommendation of enriching the well-being, capability and engagement of the health and social care workforce.

There are five priority delivery priorities outlined which represent a real effort to re-balance the Welsh NHS away from its initial over-focus on acute secondary care covering such areas as:-
Prevention
Tackling health inequalities
Primary & community care
Timely access to care
Mental health.

Each of these priorities are important in their own right. The prevention and tackling inequalities agendas acknowledge the social determinants of health but they also re-emphasise the importance of addressing “the inverse care law” which is about how the health service responds to the unequal health experience of people. Access to care is recognised as being both clinically important and a key quality measure of the patient’s experience. And as well as timely access to services the quality agenda requires that patients receive safe, effective, personal and efficient care in an equitable way.

Health boards and trust IMTPs must be the product of collective working that extends from the clinical experience of patients and NHS staff to engaging with a wider range of bodies outside the NHS family. Particular attention must be paid to the plans being developed by the primary care clusters ( http://www.primarycareone.wales.nhs.uk/primary-care-clusters ) as well input from traditional sources such as Public Health Wales. In addition participation in regional and local service boards, as well as bilateral discussions, must be used to co-ordinate planning and delivery with other public bodies such as local government, social care, education and housing.

The governance within the Health Boards and the wider NHS must improve if the planning process is to effectively identify and respond to local need. To date the record is not great. Health boards are not always adept at either identifying service failures or responding effectively to them. The Welsh Government has a clear pathway of escalating intervention when health organisations are struggling but even then improving performance has proven elusive ( http://gov.wales/topics/health/nhswales/escalation/?lang=en ).

The final report of the Parliamentary Review recommended that the Welsh Government itself needed to more pro-active in promoting innovation, evaluation and implementation of best practice across NHS Wales. The planning framework preceded the publication of the final report and its silence on the Welsh Government’s role in being a catalyst for service transformation is therefore missing. This needs to be rectified.

The abolition of the NHS internal market was widely welcomed in Wales. This in itself it does not provide automatic answers to all of the problems the NHS faces. But it allows for new ways of addressing them based on the principles of partnership, collaboration and public service values which are more clearly reflected in the latest planning framework guidance.

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Once upon a time there were public services that treated everyone the same, and people had to take what they were given. Patients, school children, students, welfare recipients were grateful and deferential, and prefaced all their requests with ‘if it’s not too much trouble’. There would be an audible gasp if ever they did an Oliver Twist and dared to ask for more. Then came Margaret Thatcher with her faith in markets and a feeling that government would run a whole lot better if lots of things were privatised, and those public services that remained were run like businesses. Users were encouraged to be customers of public services and to demand what they wanted, and to shop around.

Of course, this is an oversimplification– the welfare state never treated everyone the same, and before Thatcher there were groups of people who combined together to demand different kinds of public services. But beyond this simplistic picture, a cross-party assumption of governments has been that public services will flourish through adopting the entrepreneurialism, efficiency, and customer focus of the market. We have seen the customer language and approach take hold in a range of public services. Customer language is applied when people pay directly for public services (e.g. tuition fees); have choice over services (e.g. state schools and elective surgery); and/or are treated in an attentive and respectful way (good ‘customer service’).

There has been a huge growth in performance data about public services as well, so that we can be smart customers, shopping around between providers to get the best fit for what we want. We can see the death rates of surgeons before we choose a hospital; we can see the punctuality rates of trains and perhaps decide to take the car instead. The pressures of customer competition keep providers on their toes: if they want to keep customers and the money that comes with them then they need to keep those customers happy.

Public Services

There are a number of problems with this, and I’m going to focus on four:

The language of customer is individualising. It focuses on what you want to get out of public services, not on the broader collective goals of those services, which are often public in the first place because they are about shared and equal access to a good life. Prioritising people’s individual demands risks intensifying inequalities in access to services, and in generating collectively undesirable outcomes such as over-prescribing of antibiotics in response to patient demand.

It draws a false equivalence between private customer service and quality improvement. When I’m shopping for car insurance, I like being able to pick a different provider if I’m not happy with the one I’ve got, but it took me a few goes at buying car insurance before I learned how to compare them properly and make a good choice. A lot of public service choices are sticky: people make a choice once and after that it is difficult to change university, school, care home, hospital consultant. You’ve often had to work quite hard to get those services in the first place. And often (despite the plentiful performance data) the quality of the service isn’t really clear to you until you are in them. There’s little scope to make a poor choice and learn from it the next time, and that means the signals we send to providers by our choices are not a reliable guide to service quality.

The language of customer shifts the blame for bad services onto the individual. If we make consumer choice the engine of change in public services, then – if I’m not a very articulate or motivated customer – isn’t it my fault that the service isn’t better? Making choices about certain things is really difficult. We know that it’s hard to compare energy prices and mobile phone tariffs because they are designed to be difficult to compare. Now imagine choosing a care home to live in, because of advancing dementia or a medical crisis which has affected your mobility. It’s a hard time to make a choice, and we need to have more to offer people facing poor quality underfunded services than blaming them for not being good enough at making choices.

It puts staff and service users in conflict. Underpinning the customer language is the view of public services as a battleground between staff and customers, where customers have to keep their wits about them and be ready to complain, switch and be generally awkward in order to get what they want. You can see this in the language around students as customers in higher education in which tuition fees are seen as flexing customer muscle over wayward academics.

But this conflictual model fails to recognise that the interests of users and providers can be closely aligned. Successful delivery of public services often requires high trust relationships between users and providers on the front line. We need to get better at supporting good relationships, at harnessing relational power. In our 21st Century Public Servant research into the future public service workforce, we repeatedly find that people want public services and organisations that feel human and treat them as humans.

And that’s not easy. In the many presentations we have given to public service organisations what’s clear is that taking relationships seriously is a radical challenge for them. Big organisations in the public (and indeed private) sectors are not good at being human. Large organisations work through the efficient processing of people – the customer service algorithm – rather than the building and sustaining of relationships.

Creating good relationships is small-scale work. We need to find ways for even big organisations to feel small. There may be ways to nest the insights of small organisations in bigger ones, so that within large hospitals and large schools we have wards and classes where relationships can be developed and sustained. We need to get better at understanding the places where good relationships exist and celebrating and copying them, rather than allowing adversarial narratives (‘them and us’) to take hold and thrive.

First published on the  British Politics and Policy blog

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George Duoblys thought provoking essay,  One, Two, Three, Eyes on Me! in the current edition of the London Review of Books describes the application of new public management techniques and competitive markets in education.  The teaching he describes appears to be entirely teacher centred.  It may be successful in getting more pupils into universities, but what does it offer to those who fail to do that? We have tried payment by results before in education, but abandoned the idea in 1892, something this government never mentions, presumeably because it was not included in Mr Gove’s history syllabus. What he describes appears similar to reports of the Japanese education system, also seen as successful in getting students into universities.  But the Japanese approach leads to high levels of suicide.  In this country mental health problems in children  appear to be rising as a result of the relentless focus on testing. This approach may be efficient in turning children into well behaved automata, but it’s cheaper and more effective to create electronic versions.  Getting pupils into a university is an easily measured output for a school, but what is the outcome for the pupil?  Can we also publish the number of pupils from each school who end up in prision, or in mental health services?

These market focussed ideas in the English NHS are now being quietly abandoned.  Paying hospitals to perform more operations and more tests is not actually an efficient way of running a health system.  Trying to measure the performance of individual organisations doesn’t get you very far.  The important question is how the system performs as a whole.  The NHS is returning to managed systems, with local government involvement. This government still seems to think that education should be run as a competitive market between autonomous institutions.  The notion that only what can be measured counts leads, as it did in health, to a focus on short term institutional outputs, and ignores the real long term outcomes for people.  Important outcomes in health and education can only be measured over the long term, and some cannot easily be measured at all.

If we move in health to paying for the outcomes which really matter for people – longer happier lives, rather than more medical procedures – we will quickly realise that for most healthcare’s contribution to such an outcome is pretty marginal.

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The UK has had a policy of competitive tendering for public services since the 1980s; this is despite the fact that there has been no research evidence of its success. At the heart of this policy are a set of policy rules, set by central government, which force local government into using a competitive tendering process to ‘purchase’ public services. These rules are often called EU Procurement Rules, although the UK has twisted these rules to make them harsher and more damaging. For instance, most countries exclude services like social care from competitive tendering – but not the UK (nor, so far, Finland). This is another example of how the UK often falsely blames the EU for its own rules. It is likely that competitive tendering has played some part in alienating the British people from the European Union.

A personal perspective

Competitive tendering began in the 1980s, but it became central to all social care (support for people with disabilities, including the elderly) after the 1992 NHS & Community Care Act. From this point onward local government was forced to become a ‘purchaser’ of services, while the private and non-profit sectors became ‘providers’.

These changes happened at the beginning of my career and much of my early thinking and practice was focused on trying to make sense of these changes. More experienced colleagues were more pessimistic than me, they believed that these changes would be wholly negative. However I felt that these changes, whilst dangerous, did present some opportunities for positive change.

In 1996 I wrote my first book Unlocking the Imagination where I argued that the model of commissioning proposed by government was wrong; however I tried to persuade local leaders to adapt that model to design a better system to promote inclusion and empowerment for local people. But it turned out that I was naïve and that my colleagues were right. The UK’s system of competitive tendering has been very harmful and there have been no serious efforts to reshape it into one that promotes better values. The dominant neoliberal ideology, which has reduced everything to financial transactions and contractual control, has won the day.

The only successful challenge to competitive tendering has come from those people who have managed to exit the system, by demanding control over their own funding. First the 1996 Direct Payment Act allowed people to ask for their own budget, instead of a service. In 2003 I led a project called In Control to individualise all social care services using personal budgets. These initiatives have had some success, but they have come into conflict with the established system:

  • We said, give people and families control, because they know best
  • The system said, no we need even more control, because we know best

Today, in England, less than 25% of the funding has been individualised, most funding remains locked inside the competitive tendering regime.

The impact of competitive tendering

The impact of competitive tendering has been wholly negative and it has caused a number of serious problems, each of which has got progressively worse over time:

1. Lowering costs by cutting frontline salaries – When competing for funding the easiest way to win a contract is to reduce the salaries of frontline staff. However, and at the same time, salaries for senior managers have rapidly increased, so the level of income inequality inside organisations is now extreme. For example, the CEO of an NGO (Non-Governmental Organisation, often called a ‘charity’ in UK law) may be earning €210,000 pa whilst frontline staff may be on €16,000 (a ratio of 13:1). Social care has also seen rapid growth in precarious work: zero-hour or short-term contracts. Things have got so bad that many NGOs can no longer afford to meet minimum legal standards for pay and have been lobbying government to be exempted from these standards. It seems shameful that some NGOs are campaigning to keep standards lower rather than fighting for better rights for disabled people.

2. Increased compliance and reduced advocacy – In the past NGOs acted as advocates for people and for important causes; however today their independence has been eroded. They are very reliant on government funding and they can lose funding very quickly. Today NGOs provide little meaningful advocacy and this has contributed to the deep cuts in social care – 700,000 people have lost support since 2009 – a cut of over 40%. This was one of the major reasons why the United Nations recently condemned the UK Government for using its austerity programme to target cuts on disabled people in breach of the UN Convention.

3. Toxic culture of mistrust and regulation – The financial, bureaucratic and transactional focus of tendering damages the quality of relationships within and between organisations. Anything too warm and human now seems suspicious and contrary to the principles of tendering; only bureaucratic processes can be trusted. This has created a culture of mistrust which has infected almost every aspect of social care. It is assumed that government only wants to save money, service providers only want to make profit and that staff are all potential abusers. Every problem is solved by adding more rules, regulations and penalties. John O’Brien has called this new world Cog World, and its spirit is entirely hostile to the purpose and nature of social care and independent living – it is like expecting a robot to dance.

4. The death of creativity – Before the era of competitive tendering most innovative work was carried out in the NGO sector and it was common for NGOs to cooperate with each other and with government. Today’s NGOs now compete with each other for work and fear cooperation. The tendering process has also killed creativity. Government officers who issue contracts for funding will never be a source of creativity; it is only people, families and practitioners who can develop creative solutions to problems. This is the true source of efficiency and positive social change. Competitive tendering creates organisational chaos, yet it is fundamentally conservative. Commissioners are constantly purchasing last year’s solutions. Contracts that are ripped up every three years will never foster real creativity, which demands time, commitment and the capacity to take risks. Competitive tendering is like gardening with hand grenades.

The myth of the social care market


Although there is no evidence to support the use of competitive tendering the idea that this is a reasonable process is sustained by a series of myths and linguistic tricks. We apply important sounding language from another world and then imagine a reality that does not exist. In the process we become blind to the critical damage that is being done. For instance, Government often refers to a social care ‘market’ but this is an illusion. In the current system:

  • Government decides what people and families need
  • Providers do the work on behalf of the government
  • People and families must accept what has been decided for them

Even if you like markets it is clear that the social care system is not really any kind of market. The current system is more like the Christmas myth:

  • Santa Claus decides what all the children deserve
  • The elves make all the presents for him
  • The children wake to find out what he has delivered

Unfortunately Santa Claus does not exist and it is not a good idea to ask someone you don’t know to make important decisions about your life on your behalf. It is also not a good idea to enslave a race of elves to carry out your wishes. People with disabilities need rights, not gifts; and professionals need to work in partnership with people with disabilities and their families, not for the Government.

The new language of social care also makes us forget that creativity is essential to human services – at every level. Notice the language we have been forced to use:

  • Procurement
  • Tendering
  • Purchasing
  • Commissioning
  • Service Provider
  • Service Delivery
  • Consumer
  • Service User
  • Regulation
  • Quality Control

This is the language of industry. Strangely, at the same time as traditional industry has declined, its language has been imported into the world of social care. We had hoped that, as the institutions began to close, people with disabilities could take their place as full citizens. Instead we’ve converted human relationships into manufactured commodities that can be sold and purchased in bulk.

The way out of the madness

After 25 years this system of competitive tendering is now approaching collapse:

  • The social care system is in deep crisis with funding slashed and service providers operating on the fringes of legality.
  • Local government cannot afford to contract with more than a handful of services because of the cuts to their own core staff, and some authorities find they must go back to providing services themselves.
  • Service providers are merging with each in order to cut costs and to reduce the level of competition for contracts.

But the biggest cost of this system is the opportunity cost: for 30 years we have missed the opportunity to do the right thing, to focus on creating inclusive and welcoming communities and on developing ourselves as active citizens. Instead of seeing people with disabilities as leaders in the transformation of our communities we have wasted our time by wrapping some people in over-regulated and under-funded services while leaving others isolated and unsupported.

The alternative is clear enough:

  1. Self-directed support – Treat people as citizens and ensure they have a clear entitlement to support, one which is implicit in the UN Convention on the Rights of Persons with Disabilities
  2. Community sourcing – Encourage inclusive communities by respecting and supporting community groups and citizens to bring about the necessary social change.
  3. Local support – Ensure that local communities have the structures, expertise and information to enables them to develop local solutions.

Finland is showing us the way. It is time to throw competitive tendering in the bin. It is time to reclaim our citizenship and design a social care system that treats us as full human beings, not as lots to be sold off to corporations at the lowest possible cost.

Read the article: Not for Sale and show your support via Citizen Network Finland.

First published by the Centre for Welfare Reform.

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The rationale of the now discredited Health and Social Care Act embedded the idea that the NHS should be regarded as just a collection of services. Regulations required that (with some few exceptions) these services should be tendered out with independent autonomous providers, public and private, competing for the business on a level playing field. The process was overseen by the 200+ Clinical Commissioning Groups who were assumed to have the expertise to understand service requirements, run competitive tendering processes, design appropriate contracts and manage them. This “market” method meant that commissioners could not talk to providers about what might be best for patients and providers could not discuss better models as this would be anti-competitive. Quality of service would be managed through contracts and overseen by the Regulator (Care Quality Commission).

A study by UNISON into the problems some staff faced when their jobs in Patient Transport Services  were transferred from the NHS to private providers turned out to be a valuable insight into wider problems in our NHS caused by this “market” viewpoint.

Patient Transport Services

It has always been part of the NHS that, for some patients transport, would be free with the obvious example of any response to a 999 call. But there were also Patient Transport Services to take patients to and from an outpatient appointment or to take them home after discharge. At the time the ambulance services moved into the NHS in the early 1970s they were regarded as the transport providers1 – quick scoop and drop to A&E and a slow journey to outpatients or to home.

Since 2012 there was an acceleration in the outsourcing of the Patient Transport Services away from the traditional providers and UNISON studied the consequences.

Many staff transferred from the NHS into private providers had very poor experiences. There were also a series of very well documented failures with disruption to services and considerable inconvenience to patients. Some providers that moved into the Patient Transport Services “market” were wholly unsuitable and soon proved unable to cope. Some providers with a questionable record are still winning contracts and reports of poor practices continue. Some more reputable providers entered the market, tried hard but discovered that profits were not to be forthcoming.

Feedback from the staff impacted by privatisation was either neutral or angry. In almost no instances were any staff positive about their experience. Some staff who were moved out then back into the NHS expressed the opinion that they had been rescued from the Titanic. Such evidence as is available, and it is limited, shows that there is no improvement in services because of competition, no innovation coming from new providers but many examples of very bad patient experiences; issues being caused by organisational problems rather than by treatment by staff which is almost universally praised.

Emerging conclusions in the UNISON study are that commissioners had poor understanding of the requirements even for the simpler transport situation and no understanding of the strategic possibilities of how transport fitted into a bigger picture. Many looked for low cost solutions, almost as if this was a taxi service. There were far too many small and different contracts generated by multiple CCGs; there was a huge variety in Key Performance Indicators – no attempt was made to have a simpler national template with a few local variations.

Contracts were awarded to totally unsuitable providers. The Coperforma saga in Sussex is the extreme example where major issues with a Patient Transport Services contract (signed off by 7 CCGs) were apparent within days of the contract start. It was clear no appropriate due diligence could have been done and an independent report highlighted how poor the process of procurement had been. In another well reported case the contract with a provider had to be terminated when it was discovered that reporting had been less than honest.

Elsewhere it became clear that contracts were badly drawn up even in one case failing to include the correct geographical area to be covered! Because of inadequate contracts there were disputes between commissioners, providers and hospitals about who paid for what – with the poor patient stranded. Ambulance services lost contracts but kept some costs and assets. Contract monitoring is not well developed and inspection by CQC is superficial (the CQC are seeking help with improving this). Commissioners looked at a narrow view of costs savings and failed to do any whole system analysis of the costs and benefits.

But even if all that were not true the bigger issue is that most commissioners are still looking at services in isolation. With a couple of notable exceptions they are not looking at the opportunity of reducing fragmentation and taking a wider system view.

If this sounds familiar then that is because the farce around NHS 111 (and to a lesser extent NHS Direct and GP out-of-hours) has many similarities. The NHS does not learn!

So tactically this process of outsourcing of Patient Transport Services has failed on any sensible economic test. The strategic opportunities have also been missed; so we would hope for better solutions in the new STP world of collaboration and cooperation. Sadly no STP addresses properly either PTS or the role of the Ambulance Services as the integrators of urgent and emergency care.

1 There have always been some private providers of some non-urgent patient transport and some hospitals have used their own service. But until the era of markets the service was predominantly provided by ambulance services alongside and possibly loosely attached to the blue light 999 service.

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Staffordshire was the last of the Sustainability and  Transformation Plans to be published perhaps because relationships in this part of the country are rumoured to be poor. Both providers and commissioners in the area are challenged. Despite this the commissioners in Staffordshire are going ahead with a hugely controversial project to outsource some £1.2 bn of NHS services. This is at least in part an outsourcing of commissioning functions.

The Public Accounts Committee considered a similar exercise in Cambridge with some grave concerns. The PAC report into the matter noted:-

We asked the CCG why it had decided to contract out the commissioning of services to a third party, given that the commissioning of services is the role of the CCG itself. The CCG explained it had hoped that by commissioning one organisation for all of the services, that the organisation would find ways of integrating pathways of care to get the best outcomes, which the CCG had failed to do until that point.

The CCG acknowledged that it had tried to outsource the responsibility for transforming care pathways. It accepted now that CCGs should not outsource difficult decisions that they should be taking themselves, and that the commissioner is responsible for the NHS services for their local populations. The CCG confirmed that it believes it is now able to fulfil the commissioning role and is investing in developing the organisation to be fit for purpose to do so.

So why are commissioners in Staffordshire being allowed to do something acknowledged to be unacceptable?

When the Staffordshire fiasco began back in May 2013 a press release announced that – Staffordshire’s Clinical Commissioning Groups (CCGs) are teaming up with Macmillan Cancer Support to transform the way people with cancer or those at the end of their lives are cared for and supported. This sounded like a good idea and this project was awarded Pioneer Status by NHS England.

But the twist came soon after when in March 2014 the Financial Times reported that The NHS is embarking on its biggest and most wide-ranging outsourcing of services so far by inviting companies to bid for £1.2bn in contracts to provide frontline cancer treatment in district hospitals and care for the terminally ill. The deals could see the private sector delivering all cancer and end-of-life treatment for children and adults across Staffordshire and Stoke on Trent.

The CCGs were effectively outsourcing a key part of their role as commissioners. The procurement Notice stated that “In Stage 2 the provider will assume the responsibility for managing the provision of Cancer Care (or End of Life Care)”.

The process rumbled along with Macmillan continuing to play a very active part – leading to some questions about if this was a valid use of donations.

There were some delays with the procurement process and then work was paused after the collapse of a similar huge contracting process in Cambridge. Following the involvement of the National Audit Office and Public Accounts Committee there was an agreement that NHS England would review all major contracting processes. But then in November it was announced in the HSJ that NHS England had carried out a review of the programmes and given the go ahead for them to continue. The review has not been published.

Of great concern must be that the key advisors in Staffordshire were the now discredited Strategic Projects Team (SPT), the same SPT who “advised” in Cambridge. The SPT were actually a part of NHS England so there must be a question over how sensible it was for NHS England to review itself.

The HSJ reacted to the news of the continuation of this project:-

The Staffordshire project predates Simon Stevens’ tenure as NHS England chief executive, and quite a lot has changed since it was launched. “Integration” doesn’t mean quite the same thing in 2016 as it did in 2013. In the past three years we’ve had the Five Year Forward View, new models of care and the vanguards, which all overwhelmingly focus on “population health” rather than single pathway integration.

The Stevens-led NHS does seek to integrate and improve single service pathways too – see the acute care collaboration on orthopaedics, or the cancer taskforce – but does the Staffordshire cancer pathway fit with the work now being done nationally by Cally Palmer? Hopefully someone has checked.

Although national leaders aren’t completely averse to single specialism outcomes based contracts, they are clear that you can’t build a population budget out of a mosaic of single service contracts. They want to avoid a scenario where it becomes impossible to set up a PACS on a capitated budget because there are already lots of individual long term contracts for single pathways. The two Staffordshire contracts would certainly punch two big holes in any future MCP or PACS.

The method being used in Staffordshire feels at odds with the new care models approach. No one involved in the vanguards seriously thinks you can award a massive contract to a new provider and expect services to integrate automatically. Part of the reason new care models are taking so long to be formally established is that people are (sensibly) focusing on the relationships and working practices first, and leaving the contracting until much later in the process.

Another complicating factor: the Staffordshire STP covers six Clinical Commissioning Groups, but only four are involved in this contracting exercise. Assuming this notoriously fractious patch does come up with a viable sustainability and transformation plan (nothing has been published yet), these contracts may make it harder to begin whole system working.

Lots of work has been done in parts of Staffordshire on the cancer and end of life care pathways. National leaders have decided it is better to go ahead than to abandon the tender. Presumably the work done so far is of good quality.

Let’s hope so, because, on the face of it, this exercise is a relic of the pre-forward view era and cuts across the generally sensible approach to new models of care being taken elsewhere.

So the HSJ shares the view that this approach with outsourcing of commissioning is wrong and is also incompatible with the new direction set out in the 5 Year Forward View and the STPs.

The CCGs have decided to go ahead by simply restarting the two paused procurement processes both of which only no include private sector bidders. They will decide in private based on documents nobody has been allowed to see.

If this goes the way of Cambridge who will be held to account?

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There has been a fundamental shift in how care and support for people with learning disabilities is provided over the last 20 years. During this period, quality of care has plummeted. In 1993, the independent sector provided just 5 percent of all care services. By 2013, the figure was 89 percent as local authorities shifted responsibilities to voluntary and, increasingly, private sector organisations. In learning disabilities, 80 percent of services in residential and non-residential settings are provided by the independent sector, a business worth around £8.2 billion in 2013.

This shift represents a huge saving for squeezed local authority budgets with services in the independent sector around half the cost of those provided centrally. Initially, local authorities facilitated the growth of independent provision through direct funding. This has decreased over the years, accelerating through the austerity era with a £1.2 billion per year reduction in central and local government funding since 2011. As 2016 research from the Nuffield Trust into services for older people shows, the last six years of cuts to local authority budgets has meant 26 percent fewer older people receive services. Although no specific data is available for people with learning disabilities outcomes are certain to be very similar.

Social Impact Investment schemes

One of the ways governments since 2000 have attempted to fill this funding gap is through Social Impact Investment schemes. Originally overseen by ‘Father of Venture Capital’ Sir Ronald Cohen, schemes included FutureBuilders, Big Society Capital, the Social Outcomes Fund and numerous others. The schemes offer financial incentives to encourage multinational entrepreneurs to invest in the UK social care market.

This new funding system, broadly based on encouraging independent sector organisations to take on debt to finance care, has replaced the government-local authority-care provision system typical of post-war welfarism. Now, a market (or pseudo-market) system attempts to provide care by aligning the interests and working methods of an array of ‘Demand organisations’ serviced by a plethora of ‘Supply organisations’ linked through numerous ‘intermediary organisations’, using a wide variety of contractual and sub-contractual arrangements and working practices. As yet, little research has been published showing how much money is taken away from front line services and absorbed at each stage of this process through staffing, administration, and other costs. What research there is shows that resources intended to provide care are greatly diminished as a result.

‘Zombie’ care

Debt levels in the UK independent care sector are extremely high. In 2014, it was estimated that over 700 care companies were ‘zombie’ organisations with liabilities worth more than assets. In 2013, shares in market leaders such as Four Seasons, Care UK and NHP were officially rated as junk bonds, or sub-investment grade, and dangerously risky for investors to buy. As recently as April 2016 Four Seasons reported annual losses of £264M.

The National Care Association highlighted the risk that a quarter of independent sector care providers were likely to ‘exit the market’ as a result of debt and lack of government and local government support, causing a ‘loss of 40,000 beds in the independent social care market.’ A consequence of these debt levels is that merger activity in the care sector is at unprecedented levels.

The Financial Times reported in October 2012 on the ‘positive environment for ongoing consolidation and M&A [mergers and acquisitions] across healthcare services’. As Marx long ago showed this ‘centralisation’ of capital ‘involves nothing more than a change in the distribution of capitals that already exist…Capital aggregates into great masses on one hand because, elsewhere, it is taken out of my hands’. Little extra profit is generated (with which to repay debt for example). What profit exists is simply concentrated into fewer people’s pockets.

A financial context for abuse

Sir Stephen Bubb, who led the investigation into the institutionalised abuse at Winterbourne View residential home exposed in 2011 has said: ‘It is outrageous that in the 21st Century we still treat people with learning disabilities and autism in this appalling way – seclusion, restraint, injections. It is unacceptable.’ One reason for the return of the larger, this time privately-run, residential units such as Winterbourne is that staffing costs in the care sector remain central, accounting for 57 percent of costs.

To address this, learning disability care companies are building larger units to give them the economies of scale to generate profit. Larger units potentially facilitate cutting staff numbers to a minimum. One staff to 10 residents is common across the sector. Skill levels are also low with skilled workers relatively more expensive and the costs of training prohibitive within this market-driven bottom-line context. Care staff are working longer and harder equipped with fewer skills.

‘Technical innovation’

Evidence shows that attempts are being made to increase the productivity of care labour through ‘technical innovation’. At a broad systemic level this includes changes to benefits systems that have seen people with learning disabilities ‘disappeared’ from benefits provision through the shift from Disability Living Allowance to Job Seekers Allowance and the regime of sanctions that accompanies it.

According to Mencap, the sanctions regime is ‘grossly unfair’ to people with learning disabilities and helps to ‘trap them in poverty’. At care provider level productivity of labour is increased by the more intensive and extensive use of restraint and of anti-psychotic and anti-depressant drugs. This allows fewer staff to deal with larger numbers of sedated clients. Cutting staffing might reduce a wage bill in the short run but it is not a basis for securing a long-term system of care.

Quite apart from the denuded humanity and grotesque immorality of placing vulnerable people in segregated locations at a distance from friends, family and communities, in more crowded spaces with less support, and sedating and containing them with physical restraints and drug treatments, the current market model with its operational imperatives is economically inviable.

This first appeared on the  British Politics and Policy blog.

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The publicly funded, free at the point of use NHS has been described as the UK’s ‘national religion’. Its significance in our national consciousness underlined by its prominence in the opening ceremony of the 2012 London Olympics. Even Mrs Thatcher – whose government enthusiastically privatised many public enterprises such as telephones and utilities – maintained a rhetorical commitment to its ideals. Ongoing sensitivities surrounding the financing and management of the NHS are nicely illustrated by the current debates surrounding the Labour Party leadership contest, with ‘privatising the NHS’ used as a stick which to beat Owen Smith.

In spite of this rhetorical appeal to public-sector purity, a form of marketization was introduced into the NHS as long ago as the 1990s and continues to affect the NHS today, having been maintained and extended by the Labour governments of Blair and Brown. Usually called a ‘quasi market’ because patients do not have to pay when they use health services, NHS agencies are instead allocated money by the government which they spend on behalf of their local populations. Since the latest re-organisation of the NHS under the Health and Social Care Act 2012 (HSCA 2012), these ‘commissioners’ or ‘purchasers’ are known as ‘clinical commissioning groups’ (CCGs), and are led by local general practitioners (GPs), with the help of professional managers.

Although the NHS is still funded out of taxes and is still free at the point of use, hospitals and other providers of healthcare are constituted as semi-independent entities. These are known, confusingly, as ‘trusts’, even though they have nothing to do with the legal definition of a trust, and, although wholly state owned, they are expected to compete with each other for patients. The quasi market is structured so that the amount of money each trust earns should depend on the number of patients it treats. The idea is that market forces (i.e. competition) will encourage improvements in quality of care and improve value for money.

Yet this competition between state-owned providers does not tell the whole story of NHS competition. Alongside NHS trusts, successive governments (including New Labour) have encouraged non-state organisations to enter the quasi market and offer care to NHS funded patients. This includes for- profit firms, and also various forms of third sector organisations, such as social enterprises and charities. This is the ‘privatisation’ against which many are currently campaigning, taking the view that the HSCA 2012 has made a fundamental change to the NHS by attempting to enshrine the need for competition in law, and widening the opportunities for for-profit companies.

And so over the past two-and-a-half decades, the structures of the NHS and the rules governing its operation have undoubtedly shifted in the direction of greater marketisation. At the same time, there has been ongoing debate about the extent to which this marketisation has also permeated the mind-sets of NHS managers and healthcare professionals. One view is that there is a lack of fit between the enduring underlying values of the NHS, such as the focus on individual patients and seeing the NHS as a common enterprise (as celebrated in the Olympic opening ceremony), which encourage collaborative approaches, and the formal rules of commissioning which push for greater marketisation of relationships in the health system. Other researchers have found that the longstanding ‘clan’ culture in the NHS, bonded by loyalty and tradition, has been overtaken by a ‘rational’ culture bonded by competition and emphasis on winning market share.

Marketisation and management culture in the NHS

To find out if NHS culture is changing, our recent research investigated the views of managers about competition in the NHS after the enactment of the HSCA 2012 to examine the extent to which marketisation has become an internalised feature of NHS commissioning practices, and explore how far this is actually changing the NHS in any fundamental way. We investigated the views on competition of senior managers in both providing and commissioning organisations in four local health economies in England; focusing on managers is key to detecting any ‘real’ shifts in the NHS culture, because they hold the power of either translating structural changes into changes in behaviour or hampering such changes.

We found evidence that marketisation has become embedded in the thinking of some NHS managers, however, rather than a wholesale shift in attitudes, this seems to reflect creative incorporation of some market principles into everyday commissioning work – and such work still mostly seems to favour collaborative rather than competitive approaches.

Commissioners and providers (including non-state providers) found the rules introduced by the HSCA 2012 confusing, hard to follow and potentially contradictory. Instead of a shared understanding of the rules, there was a shared sense of confusion, leading to divergent interpretations and organisational responses. A lack of clear policy direction and changing policy emphasis were also noted as the government made a series of policy announcements which appeared to change the direction of competition policy in the NHS without actually repealing the legislation promoting competition.

There also existed a whole spectrum of underlying opinions about the place of competition in the NHS. Although most interviewees preferred collaboration as a main method of solving local service delivery problems, especially in cases of complex service transformations, this was not the only attitude encountered. Some pointed out the benefits of competition when used in a non-prescriptive, creative way. This suggests that, notwithstanding the strong commitment to a ‘public’ NHS amongst NHS patients and staff, some NHS managers have internalised the idea of a more pluralistic NHS. In the face of contradictory and ambiguous rules, participants were preoccupied first of all with preserving their own organisation’s interests and identities.

Overall, this suggests that, whilst in general NHS managers remain committed to co-operation and collaboration, two and a half decades of marketisation have introduced pockets of pro-competitive thinking. The outstanding question is how the changes which are starting to occur in NHS managers’ attitudes will affect our NHS; will the common NHS identity expressed by Danny Boyle at London 2012, which has successfully supported the delivery of care to all citizens regardless of ability to pay, withstand this shift in attitudes?

Note: this paper draws from research published in Public Administration and co-authored with Dorota Osipovic (lead author), Elizabeth Shepherd, Lorraine Williams, Marie Sanderson, Anna Coleman, Neil Perkins and Katherine Checkland.

It was first published on the British Politics and Policy blog

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The Murky Pro-Corporate Trade Agenda is Bad For Our Health

In the run-up to the EU referendum, discussion of the threat posed by the Transatlantic Trade and Investment Partnership (TTIP) to the NHS and Britain’s wider public sector moved from the shade of the NGOs and think-tanks, through the Overton window, and out into the fresh air of public debate.

Important but arcane issues were discussed, such as how TTIP’s procurement rules would force the NHS to contract out services, and the new rights afforded to private health companies to sue Britain for national public health policies that could harm their future profits.

But while I am thrilled that the secretly-constructed Transatlantic Trade and Investment Partnership between the US and the EU has made headlines, I am concerned that Britain’s vote for Brexit will sap the fight against TTIP, which would affect us until we actually leave the Union.

Jeremy Corbyn has said that Labour would reject TTIP in its current form. But the UK is threatened by other trade deals such as the EU-Canada deal CETA, and the highly secretive Trade in Services Agreement (TiSA).

The Conservative government’s cheerleading of an unreformed TTIP suggests that after Brexit it will likely leave Britain with a bilateral US-UK trade deal that is even worse than TTIP.

The Tories pushed the abolition of rules for big banks, offering up the NHS for locked-in privatisation while refusing to release legal advice on the issue, and ensuring the deal was kept firmly in the dark.

Thankfully, TTIP has been subject to intense public opposition across Europe, putting its future in jeopardy. However, as I have previously written, due to the deal being conceived as a template to be imposed unilaterally on world trade, it is not just ‘Europeans’ who would feel the consequences of a completed TTIP.

Through the dystopian Investor-State Dispute Settlement (ISDS) private justice system, trade deals such as TTIP and CETA are, quite simply, charters for locking in deregulation of our social and health rules, the privatisation of public services and consolidating corporate power. They have profound implications for our ability to uphold human rights, fight climate change and bring about equitable and sustainable international development.

It is little wonder then that at the outset of TTIP negotiations, the European Commission applied a 30-year ban on public access to the deal’s key documents; or that when key texts were leaked earlier this year, it almost destroyed the deal.

World Health Organisation director Margaret Chan, who I met earlier this year, has spoken of the new global threats to health driven by factors including climate change, spiralling drug prices, increasing drug resistance and the “globalized marketing of unhealthy products.”

Chan argues: “Preventive efforts that aim to address these root causes [of new threats to health] often face fierce opposition from powerful economic operators, like the tobacco, alcohol, food, and beverage industries, and their equally powerful lobbies. Economic power readily translates into political power.”

Trade deals such as TTIP, CETA and TiSA are a key means by which this opposition gains traction – at the expense of global public health.

In this, the ISDS ‘corporate court’ mechanism is crucial: it grants big business the power to sue governments for policies affecting anticipated profits – it is nothing less than a form of “taxpayer-funded risk insurance for corporations” which must be abolished.

At every level of TTIP, we can see trade rules being used to undermine public health goals.

A key aim of the US is to ensure beef treated with growth hormones, including antibiotics, is no longer barred from entry to Europe by food regulations. The excessive non-clinical use of antibiotics in animal feed is at the heart of the crisis of antimicrobial resistance we now face.

Under the influence of pharmaceutical lobbyists, drug companies are using trade deals to extend patents on their drugs. Campaigners in the USA call the move “big pharma’s death sentence clause.”

Trade is also used to ensure countries cannot choose to run a public health service. After the Slovakian government won an election on a promise to nationalise health, it was successfully sued for doing so by a Dutch health insurance company accessing a deal between the Netherlands and Slovakia.

And under ISDS, we have seen corporations challenge public health legislation covering everything from sugar taxes to patents for drugs and the use of plain packaging on cigarettes.

Although TTIP appears to be on ice, our government’s complicity with the anti-democratic corporate trade agenda is continuing at full pace: fresh from the EU deciding last month that CETA must face votes in all EU national parliaments, the UK government confirmed that it supports the deal’s implementation before a vote.

Worse still, if CETA is agreed before any Brexit deal is completed, it will apply to the UK until we leave, meaning that a huge number of US corporations in Europe which also have offices in Canada will be free to use ISDS to sue the UK under CETA. And in a grotesque dilemma, if the deal isn’t applied before a parliamentary vote, ISDS protections for investments will last for 20 years – regardless of Brexit.

With a government bent on enforcing a pro-corporate trade agenda at the expense of the rights of citizens, public services and democracy itself, we have much to fight against – and for.

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Who would have thought that the NHS would be such a significant aspect of the debate on the UK’s membership of the EU?

With campaigns for the referendum on 23 June 2016 underway, all sorts of claims are being made about the effects of EU membership on the NHS, and people have been rightly wondering whether they are accurate. Here are some of the questions that I have been asked (others are covered here):

Q1.  What influence does the EU have on the NHS now – does the EU make decisions about our NHS?

Q2.  What – if anything – do EU membership; the Transatlantic Trade and Investment Partnership (TTIP); and the NHS have to do with each other?

Q3.  Assuming the EU agrees to the TTIP, how does EU membership impact, or not, on ‘privatisation’ of the NHS?

Q4.  How – if at all – would it be different if the UK left the EU?

Q5.  Would being in the EU prevent a future government from ‘renationalising’ the NHS?

In answering these questions, I want to make clear that this is not just an argument about facts, or a disagreement about how tointerpret the data.[Note 1]

It is also a discussion about interpretation of texts. Those who are not lawyers may find this frustrating, and may be looking to lawyers to ‘just tell me, what is the legal position’. However, I will insist that the craft and professional skill of lawyers (in practice and in the academy) is to provide credible and convincing interpretations of legal texts, a matter on which there can be justifiable and mutually respected disagreement. Lawyers do not simply state ‘what is the law’. So my answers to the questions are – in that sense – not definitive.

However, the answers I give in this blog are based not only on my political convictions: I am convinced that, on balance, to remain in the EU is by far the best outcome from the June 2016 referendum. My interpretations are also based on over 20 years of researching and teaching EU law, and how it applies in health contexts. My collaborator Professor Jean McHale and I were among the first to think about health and EU law. Of course, I will also freely admit that I think my answers are the best interpretations of the legal texts.

In summary, here are my answers. The analysis supporting these conclusions follows below.

A1.  The EU does not tell our government how to run the NHS. Some EU rules affect the way in which the NHS may be run, but those rules are interpreted in ways which respect national decisions about how national health systems are organised and the values they express.

A2.  The EU and its Member States will be bound by TTIP, if it is agreed. To the extent that the TTIP rules apply to public national health systems across the EU, and to our NHS in particular, if we remain in the EU, the TTIP rules will apply. However, TTIP only applies where there is a market element to the provision of services. That means that it does not apply to some aspects of any of the national health systems in the EU, including our NHS. Even where it might apply to NHS services, it is still open to our government, which will likely have a veto over TTIP as an EU Member State, to negotiate a ‘reservation’ (opt out) from TTIP or parts of TTIP. And even where no reservation has been negotiated, TTIP still permits regulation limiting free trade for ‘legitimate policy objectives’.

A3.  Assuming the EU agrees TTIP, EU membership would not require continued existing ‘privatisation’ or further ‘privatisation’ of the NHS except to the extent that TTIP applies to national health services in general, and our NHS in particular, as outlined above.

A4.  If the UK left the EU, it would not be bound by TTIP, but as I’ve already said, TTIP is not the danger to the NHS that some people claim.  Anyway, the UK will seek a free trade deal with the US if it leaves the EU, raising the TTIP issues again, but outside the context of the EU’s respect for the ways European countries organise their national health.

A5.  No. Being in the EU does not prevent a future government from ‘renationalising’ the NHS.

The starting point in considering the EU’s influence on the NHS is that the NHS is a matter of national competence. Article 168 (7) of the Treaty on the Functioning of the EU clearly states that the organisation and delivery of health services is a national responsibility, not even a matter of shared competence between the EU and its Member States. Nothing in EU law requires governments to organise health systems in any particular way. Choices about the way our NHS works are national – they are the decisions of ourgovernment(s) [Note 2], enacted in law by our Parliament(s), and interpreted by our courts and administrative bodies. Other EU countries organise their health systems in very different ways, and are entitled to do so, although we share common values about national health systems.

That said, there are features of EU law that have an impact on aspects of our NHS. The Single Market – which is regularly cited as one of the main reasons to Remain – requires free trade in products and services across EU borders, and fair competition between market actors operating within the EU. EU law is based on market liberalisation: as its ‘better regulation’ shows. This has been heavily criticised from the political left, for instance, by those seeking to protect labour rights. But EU law also includes labour rights: for instance, all employers including hospitals must comply with EU rules on working hours. Note also that recently-commissioned legal advice to the Trades Union Congress is that remaining in the EU is a better way to protect labour rights than leaving.

For a long time, it was thought that EU rules applied only to private health service providers, so not to national health systems. But all EU Member States have elements of market provision within their national health systems – these are part of a broader liberalization agenda being promoted by the World Bank since the 1990s. EU law applies to those market actors in the NHS.

But it does so in ways that respect national decisions. EU law does this through three legal mechanisms:

  •    In some instances, EU law leaves national health systems outside the scope of its application. For instance the Services Directive excludes health services altogether.
  • Relevant EU laws that do apply have significant exceptions for ‘services of general interest’ and health is such a service.
  • Restrictions on free movement of products or services that would otherwise breach free trade law, and cartel-like or monopolistic behaviour that would otherwise breach competition law, can be justified under EU law, if they are necessary to protect ‘legitimate public interests’ such as effective organisation of hospital care in a particular region.

In an analysis of scores of decisions of courts and competition authorities, across all the EU’s Member States, our Cambridge University Press book European Union Health Law found that the closer a health institution is to the ‘heart’ of a national health system, the more readily national preferences are respected through the way that EU rules are interpreted. Funding arrangements, hospitals, laboratories, blood and tissue centres all enjoy a protected position in EU law; pharmacies to some extent; dental clinics and opticians less so.

Like EU law, the TTIP (along with all other trade agreements) is based on an ideology of free trade. If such an agreement were to apply the ordinary rules of free trade to all sectors of the EU, then it would indeed represent a significant threat to the European ways of organising health services.

But it doesn’t.

All the EU Member States have national health systems based on dignity in terms of how patients are treated; solidarity in terms of how systems are funded; and equality in terms of access. So it is not surprising that the EU is negotiating a trade deal that will respect those values. Each government normally has a veto in EU trade deals: if we don’t get the deal we want in TTIP, our government could oppose it. [Note 3] What is intended by the parties to the agreement in TTIP (the EU, its Member States and the US) is important, because it is taken into account when interpreting the legal texts. Safeguards for public services are embedded in EU law, so they were probably assumed in the EU’s negotiating position with the US over TTIP from the start. We don’t have those early negotiating texts, so we can’t tell for sure.

But we do have the more recent negotiating texts – thanks to the response of the EU to significant grassroots pressure for transparency.[Note 4] The ways in which the latest (March 2016) texts express support for those European values in health services involve the scope of the agreement; exceptions; and justifications for departing from its general rules.

  • Exceptions and justifications include:
  • The opening provision in the chapter of TTIP on services and investment liberalisation, which confirms that the EU, its Member States and the US may ‘adopt, maintain and enforce’ national measures that restrict services or investment liberalisation, as ‘necessary to pursue legitimate policy objectives’. In other words, states may adopt justifiable regulation. A non-exhaustive list of such regulatory policy objectives includes protecting public health; securing dignity, solidarity and equality within the NHS constitute such an objective.
  • Similarly, the ‘general exceptions’ clauses include agreement that nothing in the TTIP should be interpreted in such a way as to prevent the EU, its Member States, or the USA and its states, from adopting or enforcing measures ‘necessary to protect human … health’.
  • Neither of these provisions is explicitly about the NHS, but they will be taken into account when interpreting the TTIP should it apply to future US service providers or investors in the NHS. It is hard to think of a service of general interest with a stronger claim to legitimate and justifiable regulation.
  • The TTIP will include Annexes in which existing national laws ‘derogating’ from the liberalisation provisions (permitted exceptions to those rules), and areas in which individual national governments reserve the right to make future derogations, are listed. I say more about these ‘reservations’ below.
  • It’s important also to understand that non-discriminatory rules, such as a requirement to be licensed, quality standards, obligation to provide a universal service, or language proficiencies, are all allowed under TTIP – they are justifiable regulation. So none of these, or similar, aspects of the NHS would be affected.
  • The approach being proposed in TTIP to determining the scope of application of the services and investment provisions is a variant of ‘negative lists’, in which the EU and US will (if they can agree) explicitly exclude certain sectors from the TTIP.
  • TTIP will also probably include ‘standstill’ or ‘ratchet’ clauses, to prevent reintroduction of national rules restricting, eg foreign ownership of firms.

How should we interpret the TTIP provisions in the context of our NHS? A legal opinion prepared for Unite, based on the July 2015 negotiating texts, concluded that ‘TTIP proposes a real and serious risk to future UK government decision-making in the NHS’. (Incidentally, Unite’s position on the referendum is Remain.) The advice proposed ‘a blanket exception’ for the NHS in the main text of TTIP, or a reservation in one of its Annexes, as the solution. The negotiating texts explicitly reserve the right to make changes at any time prior to the conclusion of the negotiations, so such an exception or reservation could still be included.

But so far, the TTIP text does not do so.

Austria, Germany, Greece and Italy all have explicit reservations in the text from the services and investment provisions of TTIP forexisting rules about some health professions. France has a general reservation limiting the nature of legal entities through which foreign investors can provide health services.  But the UK hasn’t entered any reservations in either category in this part of the TTIP text. (Cyprus seems more worried about US hairdressers than the UK is about this. It has a reservation for hairdressing services.) In the context of market access, the UK’s reservation is only to state that ‘establishment for doctors under the National Health Service is subject to medical manpower planning’.  As should now be clear, these reservations clauses of TTIP express preferences of the UK government. They are not a function of the EU’s negotiation of TTIP per se.

The UK has entered reservations for possible future provisions which restrict cross-border provision of health services, pharmaceuticals, or medical and orthopaedical products, where the provider is not legally established or physically present in the UK. These could be used to restrict access of US-based firms to these aspects of the UK market in the future.

The EU itself has entered reservations for future provisions in the publicly funded or state supported health sector:

“with regard to the provision of all health services which receive public funding or State support in any form, and are therefore not considered to be privately funded …. The EU reserves the right to adopt or maintain any measures with regard to all privately funded health services, other than privately funded hospital, ambulance, and residential health services other than hospital services … with respect to requiring the establishment of suppliers and restricting the cross-border provision of privately funded hospital, ambulance, and residential health services other than hospital services …”.

The text here embodies the notion of European national health services, which regardless of exactly how they are funded, or the form in which state support is given, are not considered to be part of the ‘private’ sector. Market access under the TTIP is only for privately funded health services. This is consistent with the values of EU health law.

The EU’s position is also expressed in an important general exclusion from the market access and investment rules of TTIP for ‘activities considered as public utilities at national or local level’, which may lawfully be public monopolies and enjoy exclusive rights to supply public services. The text explicitly says that these include health services. Future sales of nationally-held equity interests in or nationally owned assets of state enterprises providing health, social, or education services may prohibit or limit sale to or ownership by US firms. EU countries may also introduce rules on nationality of management or board members, or limiting suppliers. Furthermore, although TTIP is all about greater regulatory coherence between the EU and the US, the TTIP texts explicitly embody the right to regulate to pursue legitimate public policy objectives. The EU can be expected to exercise that power consistently with its approach to public national health services. The European Commission has assured the House of Commons Health Committee that this is so, in a formal letter in December 2014.

The rationale for the Unite legal advice was that the TTIP texts did not provide sufficient assurances that the UK government would not be required to pay substantial compensation to US investors in the national health sector in the event of a decision of a future UK government to change the way the NHS is organised. The threat of litigation, or worse, the use of the widely-criticised investor-state dispute settlement mechanism involving private and secret arbitration, would provide a ‘chilling effect’ on a future government’s discretion, for example, to take back ‘in house’ certain services now provided by private contractors.

It is the case that, under TTIP, governments would be obliged to protect foreign investments, respect contractual commitments, and not to expropriate property through nationalisation without fair compensation for ‘market value’ of investments made.  But this is true inexisting international trade or investment agreements, and would apply in any future trade or investment deals that the UK were to negotiate if it left the EU. There’s a nice summary explaining this here.

The obligation to compensate also applies, of course, to compensation for national firms, were a future UK government to breach contracts with such firms by renationalising the NHS. In this regard, the EU and TTIP are a red herring.

But if under a future renationalised NHS, which provided health services through publicly owned entities, contracts with private providers were simply not renewed, claims in contract law would not apply.  The idea of a potential ‘chilling effect’ comes from the fear that there might be a claim under TTIP for foreign investors.  The argument has been made that a US investor in a private provider contracting with a Clinical Commissioning Group (CCG) under the Health and Social Care Act 2012 might claim that their investment in England and Wales was on the basis of a secure future market for such contracts. Investment decisions made on the basis that, although each contract was time-bound, there would be many future opportunities to contract with CCGs, and so to remove all possible future contracts would deprive the US investor of its property.

That argument assumes that the new national law would be a breach of TTIP, notwithstanding the UK’s right to adopt justifiable regulation to achieve legitimate policy objectives embodied in the TTIP text.  As I have already argued, a better interpretation of the TTIP text is that such regulation is permitted. The 12 November 2015 negotiating text on Investor Dispute Settlement begins with the ‘right to adopt justifiable regulation’:

“The provisions of this section shall not affect the right of the Parties to regulate within their territories through measures necessary to achieve legitimate policy objectives”

and

“the provisions of this section shall not be interpreted as a commitment from a Party that it will not change the legal and regulatory framework, including in a manner that may negatively affect the operation of covered investments or the investor’s expectations of profits.”

The text confirms that expropriation of private property may take place ‘for a public purpose’, and it is undoubtedly the case that a decision of a government to renationalise the NHS would be for such a purpose.

The ‘right to adopt justifiable regulation’ clause is general, and in itself doesn’t provide explicit protection for a decision of a government to take an action that indirectly results in expropriation of property. What I am suggesting here is that the proper interpretation of the text of TTIP (especially of the exclusions from the scope of TTIP, the reservations clauses, and the ‘right to adopt justifiable regulation’ itself) would take into account all of the above arguments about the place of health services within EU health law: not as an ‘ordinary’ service, subject to the rules of free and fair trade, but as a service of general interest, for which significant exceptions, flexibilities, and exclusions apply. This is what the EU’s Court of Justice has done (see Hervey & McHale). It is what the TTIP investment courts should understand as the intention, and meaning, behind the legal texts.

Moreover, even if the TTIP court concluded that there had been a breach, it would still have to decide what is a ‘fair market value’ for compensation for the relevant investment.

The original idea in the TTIP’s proposed procedure for settling such disputes was to use international arbitration. This has been criticised as lacking in the transparency and respect for the rule of law associated with decisions made by courts. The EU’s November 2015 negotiating text indicates a different approach. Disputes about investment settlements would be resolved by an ‘investment court system’, consisting of a tribunal and an appeal tribunal. The 15 first instance judges (sitting in panels of three) and 6 appeal judges would be independent of any government, qualified to hold judicial office in their own countries, and would have appropriate experience. They would either be paid a retainer fee, or would be salaried judges. A code of conduct would require disclosure of judicial interests, independence and impartiality. Judges would not be permitted to hear claims where they had a conflict of interest, and a specific procedure to assert such conflict of interest would be available. The proceedings and documents would be made transparent, subject to redacting confidential information. All of these rules are designed to secure a system respecting the principles of judicial process. While it is impossible at this stage to assess the possible future working of such a system in practice, the legal texts suggest something more akin to a court than to a private dispute settlement mechanism, with the concomitant expectation that a properly judicial approach would be taken to textual interpretation.

So, to recap, as for whether being in the EU would prevent a future government from ‘renationalising’ the NHS, of course that question is based on the premise that a future UK population elects a government that seriously proposes renationalisation. Others are better judges of the likelihood of that, but I note that even the Blair government continued with the NHS ‘marketisation’ agenda. It should be apparent from what I have already said that I do not think that EU law prevents such renationalisation. Indeed, in general EU law does not prevent nationalisation of business.

I have written about this in the past, taking the opposite view. It is certainly possible to argue that EU law ‘locks in’ arrangements for liberalized service provisions. This is sometimes known as the ‘aquarium to fish soup argument’ (you can make the latter from the former but not the other way around). But I now have a different understanding of the ways EU law includes significant flexibilities and exceptions for ‘services of general interest’. EU law cannot simply be said to promote competition at the expense of other NHS values, such as dignity, solidarity and equality. On the contrary, those values themselves are embedded into the legal texts of EU competition and free market law, and the ways in which they are interpreted.

Furthermore, the UK government could agree a TTIP reservation clause for the NHS. Many other Member States have done so, reflecting the way they organise their national health systems. For instance, Germany, one of the countries which has gone some way towards liberalizing its national health system, has many such clauses already in the negotiating texts. Nothing prevents the UK government from including such reservations while continuing to be part of the EU.

In summary: Is Brexit ‘necessary to protect the NHS from TTIP’?  No.

My view, along with that of many in the health policy community, is that the greatest threat to the NHS remains the policy of successive British governments, based on the idea that a market is the best approach to efficiency, and undermining the historic approach to the NHS as a service based on need and dignity, with no place for austerity narratives. Staying in the EU keeps us within that kind of vision for a public national health service.

Photo credit: NationalHealthExecutive.com

Barnard & Peers: chapter 21, chapter 24

Notes

[Note 1]: Conflicting data has been presented on, for instance:

  • numbers of incoming patients from other EU countries who are treated within the NHS;
  • how much that costs;
  • how much is reimbursed to the NHS by other countries, or by insurance or other private means;
  • how much they spend on other services while they are here;
  • how many UK citizens access free health care when in other EU countries on holiday;
  • how many UK citizens live permanently in another EU Member State, accessing health care there [1] [2] [3] [4] [5];
  • how many non-UK EU doctors, nurses, or other health professionals work in the UK [6] [7] [8];
  • how many new private providers there are within the NHS and;
  • how many of those are incorporated in the USA? (I couldn’t find any report on that, although it would seem that the contractual clauses seeking to block tax-avoiding incorporation have been abandoned recently, and the links with shareholding MPs reported here seem interesting).

Disagreements about how to interpret that data concern, for instance:

  • what is its consequence for hospital trusts’ budgets;
  • how might we expect clinical commissioning groups to behave;
  • or health professionals from other EU countries who work here [9];
  • are the EU’s working time regulations bad for quality of care when applied in hospital contexts (see the arguments supporting the Private Members Working Time Directive (Limitation) Bill);
  • does the UK get more than it gives through EU-funded research collaborations, including in medical fields [10] [11] [12];
  • on balance, is EU membership a good thing for the NHS or not?

[Note 2]: Responsibility for health services is a devolved matter in Scotland; Wales; and Northern Ireland. This blog refers to the UK government, because this is the body that negotiates international trade deals. But decisions about the organisation of health services, including the extent to which health services are subject to market liberalisation, differ between the UK’s nations.

[Note 3]: The European Commission is negotiating TTIP with the USA.  But it can only negotiate on the mandate given by the Council. The Council is the governments of the Member States, including the UK government. The Council votes unanimously on general trade agreements like TTIP, since they include non-trade issues as well, so our government has a veto.  The negotiation is supervised by a special committee appointed by the Council (ie the Member States), to which the European Commission has to report regularly. The European Commission also has to report to the European Parliament. The European Parliament has a veto.  See Article 207 TFEU.  It is likely that each Member State will also have to individually ratify the TTIP too (because it is what is called a ‘mixed agreement’, not entirely within EU competence), giving national parliaments a de facto veto in most Member States, including ours. This blog is written on the basis that the TTIP is a mixed agreement – see further [1] [2] [3].

[Note 4]: This is highly unusual for trade deals, which are normally negotiated entirely in secret. So one possible implication of Brexit is that we may have less access to negotiating texts of future UK trade deals, unless our government chooses to adopt a similar approach to transparency.

None of this analysis would have been possible without access to the negotiating texts.

This article was first published on the EU Law Analysis blog.

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George

I actually feel as if I know Danny Finkelstein from his Spotify choices – not giving anything away but we share a mutual ‘like’ of a ukelele song about cleaning windows. Also, I do sometimes wonder how our Man in Pinner can get away with stripy shirts and spotty tie combos on Newsnight.

It was with some incredulity that I witnessed an exchange on Twitter. But to be honest, I am often in awkward public Twitter exchanges, and invariably they appear much worse to the outsider than they actually are.

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Prof Liz Lightstone is well respected. That goes without saying. I know of the powerhouse that is renal medicine from Imperial – including Prof David Taube and Prof Charles Pusey. Renal medicine is well known to be one of the more demanding specialties for a physician.

As such, many people are expected to play their rôles, and I don’t deny that. But overall I think both parties in this Twitter conversation want a resolution to this crisis in the workforce.

I think part of the problem is the sheer level of distrust of Jeremy Hunt. As far as the medical profession is concerned, he appears to have gone ‘rogue’ like a ‘lone trader’ – like a dog who won’t let go of the bone of an unfair, unsafe contract. But it’s easy to underestimate the mass appeal he has within the Conservative Party, who view this dispute as standing up to “those evil unions.”

But Lord Finkelstein would be the first to admit, surely, that the current state of affairs on the NHS is not ideal. There are some people who’ve been closely watching the NHS policy for years, like me. And we feel that NHS policy is not being held hostage by the BMA, but by the private markets.

The cost of implementing the markets has gradually crept up from about 5% of the NHS budget to about 15-20% – if we go the full whack, it’ll be about 30% like America with the worst outcomes in healthcare.

The reason we’re in this mess is that the McKinsey report on NHS efficiency and productivity some years ago gave Sir David Nicholson, Simon Stevens’ predecessor, the license to impose efficiency savings of billions. Even a former Conservative Secretary of State for health, Stephen Dorrell, has expressed incredulity at how they could be achieved.

Anyway, the Labour opposition led by Andy Burnham MP stuck to the efficiency savings line – and so does Heidi Alexander MP – to my knowledge. Efficiency savings are cuts – and forced austerity on the NHS.

But the NHS is facing strong winds from elsewhere. One is fraud, and this is not just mega bucks corporate fraud against which the Health and Social Care Act does not produce any statutory protection interestingly. This is the same Act which abolished the National Patient Safety Agency. The current Secretary of State for Health has done nothing yet on the apparent loophole of lack of legal protection for junior doctors in whistleblowing.

The fraud comes from other areas, like GPs commissioning the same services they make money from, a known risk of the Health and Social Care Act. It includes “upcoding” – hospitals claiming for patients with “urosepsis” rather than “urinary tract infections” to make more money. Mega money grants siphoning off money for even more snazzy ways of gauging patient opinion.

The big one is the private finance initiative. Whilst gestating under the Major administration in a special department in 1993-6, Coopers and Lybrand were able to hit the ground running in 1997 with the Ascent of Blair. And the rest is history. PFI has gone full throttle under all subsequent administrations since, including the current Tory one.

Another huge ‘sink’ on resources is that the fact that every transaction is costed, with the disastrous ‘purchaser provider split’. Even the original architects of ‘activity based costing’, upon which the contemporary NHS purchasing system is based, warn against excessive administration costing money.

So against these immutable headwinds, Jeremy Hunt wants to slash the current staff budget. The cost of staff is a huge proportion of the NHS budget. The reason the NICE guidance on safe staffing is currently in the dustbin, from Jeremy Hunt, is that the aim is to reduce the staff costs through various means, such as employing less skilled staff and reducing the budget to pay Doctors. That drive to cut costs is for him ‘a price well worth paying’ despite the destruction of value to the overall service.

Of course, if older GPs fail to revalidate, there is a recruitment crisis in various specialties, or younger Doctors emigrate to Australia, that is one way for Hunt to control this staffing budget.

And with this fetish for being fettered by private markets comes the chipping away of universality and comprehensiveness from the NHS – “minor procedures” become out of scope, co-payments get introduced in obscure guises, such as contributions for expensive medications, and personal budgets where choice is restricted by the money simply running out.

It’s extremely tricky to spin it any other way – but Hunt lied about “the weekend effect”. Dr Fiona Godlee, Editor of the British Medical Journal, wrote to give a stark warning about the misuse in interpretation of that famous paper by Prof Nick Freemantle and colleagues.

But Hunt and Keogh are playing with fire. By refusing to lift the imposition on the contract, the Junior Doctors Committee are having to go ahead with a strike they don’t want either. And with the current Government refusing to negotiate, the Junior Doctors Committee’s hands are tied.

And there’s still plenty to discuss, for example how it can possibly be a legitimate purpose to increase the gender pay gap of female doctors under the proposals, or how it can be good for patient safety to remove ‘safeguards’.

There are plenty of ‘useful idiots’ on Facebook and Twitter who will tell you the contract is a good thing too. And they come in various guises. Some even write for the Guardian.

Michael Fallon MP said last Friday on BBC Any Questions that overtired doctors were the cause of the spike of deaths at the weekend, hence the need to revise the contract. He offered, by the way, no indication how the new contract would mitigate against this effect.

There’s a sense that it’s their party, and the Conservatives will simply lie if they want to.

@dr_shibley

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NHS logo on signpost

Many of us have expressed grave concerns about the Transatlantic Trade and Investment Partnership, better known as the TTIP. In 2013, European governments instructed the European Commission to negotiate a free-trade deal with the United States. Like all free-trade deals, TTIP brings potential benefits, but also considerable risks. However, in this case, the stakes are especially high given the difference between the market oriented health system in the United States and the system of national health systems in Europe based on universal coverage and solidarity. The situation has not been helped by the high level of secrecy that has surrounded many of the negotiations. The two parties justified this using the argument that neither side wished to reveal their negotiating position in advance. A particular concern was the proposal to use the Investor State Dispute Settlement (ISDS) mechanism to resolve any claims made under the agreement. This has involved a process that takes place in secret, involving negotiations rather than hearings on the facts, as would be the case in a court of law, using negotiators rather than legally qualified judges. Unsurprisingly, we were concerned that the TTIP could lead to an acceleration of the privatisation, under its many guises, that has been taking place in the NHS since the 2012 Health and Social Care Act.

Individuals and organisations across Europe have raised these concerns with the European Commission, both in meetings and in the media. The Commission has responded, and its negotiating position is now publicly available. It is clear that it has listened to these concerns and, while negotiating with the USA is never easy, it has taken them on board. As someone who has been highly critical of the TTIP negotiations in the past, I am now substantially reassured. In this blog, I hope that I will be able to reassure you too.

Of course, I’m not so naive as to believe that publicly funded health services, like the NHS, are safe. However, it is now clear that the threat to them arises from national governments, rather than the EU or international trade deals. Indeed, in some ways, European law offers some protections, just as it did in the various cases on cross-border care heard by the European Court of Justice, in which the court consistently upheld the importance of maintaining a sustainable national health system.

The EU approach to the TTIP negotiation contains four important safeguards, consistent with all previous trade agreements negotiated by the EU, and consistent with the clear statement in the European treaties that EU governments retain the freedom to manage public services and the way that they wish. If they choose to open up these services to the market, then they must play by the rules of the market. However there is no reason for them to do so. This is entirely a political choice.

First, there is no reason why EU governments should give up monopolies in the provision of health services. Second, in healthcare, as in social services and education, those services that receive public funding or other support of any form need not be opened up to competition from outside the EU. Third, governments remain free to provide subsidies to public health services, or indeed not to. If they do provide subsidies to domestic providers, there is no obligation to do the same with providers from outside the EU. Fourth, governments retain the freedom to regulate health services in the way that they choose. This can take many forms, for example by giving licenses to suppliers that require them to provide services equitably, such as the universal service obligation in relation to postal services, or by setting quality standards, such as accreditation mechanisms. They can do this at any level of government, whether national, regional or local.

In its negotiations on TTIP, the EU is negotiating for specific safeguards for public services. In its previous trade agreements, the means of doing so have varied. Some, such as the EU’s trade agreement with South Korea, involves a positive list, in which those services opened up to international competition are specified. Others involve a Negative list, such as the EU’s trade agreement with Canada, in which all services are opened up to competition but certain ones, such as health, can be excluded by adding them to an annex to the agreement. In practice, the difference is purely technical.

However, for many of us, the most important element of the Commission’s negotiating proposal is an entirely new form of ISDS. This is the issue that has caused most concern to those of us anxious about the TTIP. In this model, judgements would be given by publicly appointed, legally qualified judges. Investors could only bring a case in circumstances that would be precisely defined and limited such as discrimination on grounds of gender, race, religion, or nationality or denial of justice. The right of governments to regulate would be enshrined in the provisions of the TTIP. All proceedings will be transparent, with all documentation available on-line, while other parties with an interest in the dispute, such as advocacy groups working on human rights, will be able to intervene. This is very different to what has been in place with previous international trade agreements.

Few of us are in any doubt that there are significant threats to the NHS. Indeed, I have been one of the most vociferous in drawing attention to them. However, as is apparent since the passage of the 2012 Health and Social Care Act, which was entirely a piece of domestic legislation, not even extending to Scotland, Wales or Northern Ireland, the risk is one arising from domestic politics rather than any agreements being made in Brussels.

Postscript: on 18th March 2016, Martin Schulz, president of the European Parliament, speaking at the 2016 Brussels Forum, was absolutely clear. Unless the USA agreed to the protections being negotiated by the EU, the TTIP would never be agreed by the European Parliament. No ifs and no buts. Can those who support Brexit be sure that the UK parliament would be quite so robust?

First published by Healthier IN the EU

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