Category Archives: Health and Social Care Act 2012

Surveys of members of the British Association of Sexual Health and HIV (BASHH) and the British HIV Association (BHIVA) provide new evidence of pressure on over stretched sexual health services and a sector at ‘breaking point’

 

Access to sexual health and HIV services has been dramatically reduced as a result of changes to the funding and organisation of sexual health services since 2013, according to the medical professionals providing care. Over half (54%) of respondents to a survey of members of the British Association of Sexual Health and HIV (BASHH) reported decreases in the overall level of service access to patients over the past year, with a further 16 per cent saying that access had significantly decreased. In a parallel survey of members of the British HIV Association (BHIVA), three quarters (76%) of respondents said that care delivered to patients in their HIV service had worsened.

With Public Health England (PHE) data showing a 13 per cent increase in attendance of sexual health services between 2013 and 2017 (PHE, June 2018,) it is not surprising that nearly 80 per cent of BASHH respondents (79%) said that they had seen an increased demand for services in the past 12 months. Budgetary pressure means that this demand cannot always be met: more patients are now either turned away or redirected to other parts of the health system.  Six in ten (63%) per cent of BASHH respondents said that they had to turn away patients each week, with 19 per cent saying that they were having to turn away more than 50 patients on a weekly basis. While most were offered the next available appointment, 13 per cent said that patients were referred to another sexual health provider and four per cent that they were redirected to primary care. Clinicians responding to the survey report that many of the patients who are being turned away have symptoms of potential infection.

 

Reduction in prevention, cytology and mental health services

Both surveys revealed significant reductions in services such as the delivery of HIV prevention activities, outreach to vulnerable populations, cervical cytology and psychosexual health services. Three quarters of BHIVA members (75%) said that there had been an impact on access to HIV prevention advice and condoms, with 63 per cent saying access had been reduced; 44 per cent of BASHH members said that HIV prevention services had decreased. Almost half (47%) of BASHH members reported reductions in the provision of cervical cytology functions, reflected by BHIVA members, who also said that cervical screening had been halved (reduced access reported by 49.5%).  This is of particular concern in the context of a fall in national cervical screening coverage and the higher risk of HPV related cancer in women with HIV.

More than 40 per cent (42%) of BASHH respondents reported reduced provision of psychosexual health care, mirrored by a similar number (41%) of BHIVA members, who said that access to psychology input for HIV related mental health problems had been reduced. This is despite the higher risk of mental health issues the HIV population faces. Nearly half of BASHH members (47%) also said that care for vulnerable populations had reduced.

 

STI screening and HIV testing

More than 40 per cent (41%) of BHIVA members said that access to sexual health screening had been reduced, despite HIV positive people being at greater overall risk of sexually transmitted infections.  BASHH members gave a mixed response, with 29 per cent of respondents reporting reductions in STI testing in the past year and 27 per cent increased testing.  The BASHH response regarding HIV testing was similarly mixed, with 21 per cent saying there was a decrease and 26 per cent an increase.

The BHIVA survey showed that it is becoming more difficult for people to test for HIV, with 35 per cent of respondents reporting that there is now reduced access to testing in their own location.  Although 58 per cent of services offered outreach testing, with a quarter of respondents (26%) saying that it was offered locally in another service, more than half (52%) said access to testing in outreach settings was also reduced.  Almost half (47%) of BASHH respondents reported increases in access to online testing in the last 12 months, but it is not yet available in all locations. Although some respondents were optimistic about its role in helping to manage the growing demand for services, others expressed concerns about poor implementation, and suggested it was taking the focus away from face-to-face services.

Funding cuts have also drastically reduced the output of third sector organisations, such as charities and community groups, who have traditionally helped to plug gaps in services with HIV testing, advice and peer support. Nearly 40 per cent of BHIVA respondents said that peer support was no longer offered by their service, with 28 per cent of those that still do saying access to it had been reduced. 70 per cent said that overall the remaining third sector support had worsened, with services stripped back to basics or simply closed down completely.

 

PrEP availability and reproductive health

The roll-out of the PrEP programme through the IMPACT trial has led to increased availability.   Over 70 per cent (71%) of BHIVA respondents said that PrEP is now either available from their service or offered locally by another service (17%) and over 70 per cent (74%) of BASHH respondents reported increased delivery. However, provision remains mixed with 28 per cent of BHIVA respondents saying access is improving, 25 per cent saying it had been reduced, and 11 per cent saying PrEP was not currently on offer locally.

At the same time almost a third (32%) of BASHH respondents reported decreased provision of reproductive health and contraception and a similar percentage (34%) of BHIVA respondents also reported reduced access to these services.

 

Impact of separation of HIV and GUM on staff and services

Changes since 2013 have in many areas led to previously fully integrated clinics that were able to provide a range of services from a single location now being divided between differently funded suppliers.  Patients, particularly people living with HIV, may not be willing or able to travel elsewhere and staff may not be able to access records from other services.

Funding cuts have led to staff not being replaced with a knock-on effect to those remaining and to the level of service they can offer. For example, the loss of Health Advisers and nursing staff can limit support for patients.  More than a quarter (27%) of BHIVA respondents reported that access to partner notification has been affected, yet this is a key method of increasing testing of people at a higher risk of HIV transmission.  Although the majority of services (64%) still maintain counselling for the newly diagnosed, close to 30 per cent said that access is reduced.

Staff morale has been affected, with more than 80 per cent (81%) of BASHH survey respondents saying that staff morale had decreased in the last year, with almost half (49%) reporting it had greatly decreased.  Respondents to both surveys cited the damaging impact sustained budget cuts were having on staff, as well as the pressures and stresses experienced by retendering, restructuring and the loss of experienced colleagues. Some describe the situation as being “at breaking point” and nearly all are worried about the future:  more than 90 per cent (92%) of BASHH respondents said that they were worried, or extremely worried, about the future delivery of sexual health care in England.

 

Commented BASHH President, Dr Olwen Williams: “Providing high-quality free and open-access care for all those that need it has been the bedrock of sexual health in this country for over a century. Whilst we are doing our utmost to maintain standards in the face of record demand and dramatic increases in infections, such as syphilis and gonorrhoea in recent years, these surveys clearly show that continued cuts to funding are taking their toll. Current levels of sexual health funding are quite simply not sustainable and the pressures they are generating are having a seriously detrimental impact on the morale and wellbeing of staff. Without increased support to match the huge growth in demand, the consequences will likely be disastrous for individuals and our public health as a whole.”

Added BHIVA Chair, Professor Chloe Orkin:“Despite the stated ambition of policy makers to reduce health inequalities this will not be possible without robustly funded, sustainable services. Our survey results provide clear evidence that we need to upgrade, not reduce, services if we are to support and protect vulnerable populations. We have made huge strides in the control of HIV, so it is particularly worrying to see that important aspects of HIV care, such as access to prevention services, testing and mental health support, have been reduced. Public Health England (PHE) figures show a 17 per cent fall in new diagnoses, which it attributes to large increases in HIV testing (PHE, September 2018.) It therefore makes no sense to make it more difficult for people to test, as shown by the reduced access to testing in clinics and outreach locations our members report.”

ENDS

Editor’s notes:

  1. Survey responses: The BASHH and BHIVA surveys were both conducted in August and September 2018. BASHH received 291 responses in total, of which 264 respondents were based in England. This press release summarises the responses provided by those members based in England.  BHIVA received 98 responses to the survey, 97 of which were from respondents based in England, which are summarised in this press release.
  2. The British Association for Sexual Health and HIV (BASHH)is the lead professional representative body for those managing sexually transmitted infections (STIs) and HIV in the UK. It has a prime role in education and training, in determining, monitoring and maintaining standards of governance in sexual health and HIV care. BASHH also works to further the advancement of public health in relation to STIs, HIV and other sexual health problems and acts as a champion in promoting good sexual health and providing education to the public.
  3. The British HIV Association (BHIVA)is the leading UK association representing professionals in HIV care. Since 1995, it has been committed to providing excellent care for people living with and affected by HIV. BHIVA is a national advisory body on all aspects of HIV care and provides a national platform for HIV care issues. Its representatives contribute to international, national and local committees dealing with HIV care. It promotes undergraduate, postgraduate and continuing medical education within HIV care.

For further information, please contact either: Simon Whalley, BASHH on 07506 723 324 or simon.whalley@mandfhealth.com or Jo Josh, BHIVA, on 07787 530 922 or jo@commsbiz.com.

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Can I appeal to everyone, individuals and organisations, to get solidly behind the judicial review as loudly and forcefully as possible.

I’d like to see all of us highlighting and publicising the judicial review in our various communications and campaigns. We are trying in Wirral.

If the review succeeds entire awful council/CCG edifices of pooling and dissembling come tumbling.

If the review doesn’t raise the required £18k we’re all doomed no matter how vocal our local and national campaigns!

Come on! The price of a few glasses of wine/beer/flat white.

https://www.crowdjustice.com/case/justice4nhs-stage5-courtofappeal/

Cheers

Kevin Donovan

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For everyone who couldn’t make the Conference, here is Jessica’s speech to our Fringe meeting on the future of Women’s health that I referred to earlier in a members email.

Jean Hardiman Smith

 

Thank you for inviting me to speak to you today. My name is Jessica Ormerod. I run a research and information organisation called Public Matters with my lovely friend and colleague Deborah Harrington.
Although we write about all aspects of the NHS and other public services, I have a particular interest in maternity. I have been writing about maternity issues for seven years since I was the chair of the maternity services liaison committee for Lewisham Hospital which coincided with our fight to save our maternity services. We won that fight but we have by no means won the war because as you know maternity services up and down the country are being closed and downgraded.
But before anything else I want to paint the picture of what is happening to the NHS as a whole. Because every closed maternity ward, service or reduction in staff is the direct result of changes to the NHS that have been happening since the 2012 Health and Social Care Act. These changes are having a devastating impact on access to care. It is no exaggeration to say that we are witnessing the reversal of 70 years of universal, comprehensive and equitable care.
The 2012 Health and Social Care Act put into place all the major elements for a step change in the privatisation of the NHS.

A QUANGO called NHS England was formed as the Commissioner-in-Chief of the service, with over 200 subordinate local commissioning units. These commissioning units broke with the tradition of planning services, replacing it with buying in from public, private and voluntary sector providers. Areas of work are subdivided into contractable units and NHS public providers are obliged to compete. The loss of a contract means loss of income, which has a knock-on effect on the viability of the public sector, which is left with high cost acute care and a reduced income.

In 2014 a new CEO was appointed to run the NHS in England. He created a new plan for the NHS, the Five Year Forward View and this was greeted by the establishment as a welcome antidote to what was seen as the fragmented mess left by the 2012 Act (this was only a mere 18 months on from it being enacted). But it’s important to recognize that far from being an accident, the Act achieved the fragmentation necessary for privatisation to be embedded at an organisational level, including many major health industry players taking key roles in the commissioning and policy-making process.

At the heart of NHS England’s Five Year Forward View is the idea that the NHS in England will never again be funded to a level that maintains its services in the way they are run now. It puts together a series of proposals for change which are not just cuts but are about a fundamental reshaping of how services are provided. Expensive specialist and emergency care are relocated to centralised hubs and more care is to be delivered in the community via partnerships with local authorities. There is an aspiration for fewer emergency admissions with an improvement to overall health which it argues will lead to less dependency on NHS services.

We could say the scope of this aspiration is far reaching or we could say it is pie in the sky. It not only assumes the NHS can cope with a growing population without corresponding growth in services but that it will do so with a reduced service with much of the change becoming the responsibility of local authorities.

The process of transforming the NHS in England, is based on close co-operation between successive politicians and Department of Health managers over many years with the US Health Maintenance Organisation or Accountable Care Organization principles of managed care. This process is continuing without any checks and balances of substance within the formal organisational structures of government. Politicians go to great lengths to deny both privatisation and US influence on the current changes.

There is, however, a groundswell of resistance to the damage being done to the NHS and there is a lot of knowledge surrounding individual service contractions and closures, but little in the public domain about the overall programme of change. And that is what I am here to talk about today.

The National Maternity Review, aka Better Births – A Five Year Forward View for Maternity Care, is one of the Five Year Forward View’s New Models of Care. It emphasises community care delivered through local hubs with a theoretical reduced demand on hospital services. It recommends an increase in independent sector providers and introduces Personal Care Maternity Budgets. Personal Care Budgets commoditise and monetise the system. They add layers of unnecessary complication, increase expense, fragment accountability and lead to an accounting nightmare.
44 Local Maternity Systems have been established. The systems have been introduced without consultation, peer review, pilot studies or effective oversight from public health or parliamentary scrutiny. They are small-scale Integrated Care Systems. Unlike the Integrated Care Organisations which are now under consultation, they have been put into place with very little fanfare or institutional opposition.
As with all the changes to the NHS currently taking place, there is a real problem that rhetoric about better care closer to home is not matched by real resources or access to physical structures like hospitals. NHS England consistently refers to services being more important than organisations but fail to fill in the blanks about how this works. They also insist that travelling in order to receive excellent care is not a concern to patients. There is no acknowledgment that time, expense and severity of health condition all very much effect the distance people are able to travel regardless of the excellence of the service at the end of the journey.
In the case of maternity, these questions of distance and the emphasis on community care run two different risks. The first being the potential for increase of emergencies outside hospital setting. The second is that mothers might be taken in to hospital for assisted birth or caesarean in order to pre-empt risk arising.
But what makes maternity different from other services?
Most people use health services most at the beginning and end of their lives. Pregnant women are the exception to this. During pregnancy women come into more contact with the NHS than they probably have ever done in their lives. This is particularly the case if they have a complicated pregnancy or birth. Healthy women can become profoundly unwell during pregnancy and they can be vulnerable to life-threatening complications during birth. That’s why it is so important that women have all levels of care within easy access.
Until now maternity services have been provided in the most part by the NHS. Women have always been free to employ a private midwife. But the NHS has a duty to provide a midwife at every birth even if a private midwife is also in attendance.
Maternity services are woven through the traditional structure of the NHS. Women see their midwife at home or at their local GP. They receive a minimum of two scans to check the baby’s progress and health at the local hospital. If they have a pre-existing condition or they develop a pregnancy-related illness then their specialist will work alongside the maternity team to ensure that the woman and baby are safe and as healthy as possible throughout the pregnancy.
Currently women can give birth at home, in a ‘stand-alone’ facility run by midwives, ‘co-located midwifery unit’ – that’s a midwife-run facility on hospital grounds, or in an obstetric unit which includes doctors and surgical theatre. Obstetric units can only be sited in hospitals with A&E because they require acute services which is blood, air and surgeons. A woman can become dangerously ill very quickly during birth so timely access to acute care is essential.
Put this into the context that since 2010 maternity services have been starved of funds and there has been a staff recruitment and retention crisis. Many maternity units have already been downgraded or closed, hundreds of GP practices have also closed so women already travel further to receive care. This means it costs more and takes more time to see a midwife, GP or hospital doctor. It also means longer emergency transfer times. The risk is this will only get worse once the STPs restructuring of the NHS is complete.
Who is driving the changes to maternity?
Surprise, surprise, Better Births panel includes private health providers and those private companies are working with government to re-write policy.
Although most current providers are NHS hospitals, private providers are now being strongly encouraged. Local Maternity Systems set their own payment systems. This means that they can choose whether they pay via their geographical population or they can pay per activity or service. However, they do not follow established budget areas; they do not share boundaries with CCGs or Local Authorities even though they rely on budgets from both. Across the country there is now a mish-mash of payment systems. The risk is that women will fall through the gaps.
NHS Trusts have been ‘incentivised’ to adopt Better Births by offering a chance to win ‘pioneer funding’ to speed up the transition to the New Models of Care. In November 2016, Seven ‘early adopter’ sites started to implement the recommendations – I don’t need tell you about this because you’re part of it! The sites were told to be bold and radical. Another incentive is ‘the maternity challenge fund’ which instructs successful trusts ‘to explore innovative ways to use women’s and their partners’ feedback to improve maternity services’. A pioneer site is not the same as a pilot test site.
LMSs are encouraged to work alongside private providers in order to offer women a wider choice. As most women have previously been cared for by the NHS this simply means opening the door to the private sector. In a climate of serious staff shortages, it is possible that some midwives may see the benefit of setting up an independent midwifery practice rather than staying in the NHS. Despite protestations to the contrary, this does actually reduce the ‘NHS offer’ and opens an income stream for public money to be handed over to the private sector.
Better Births tells us it is working on a new accreditation scheme for maternity providers. But in a publicly provided NHS service, this is unnecessary because the NHS trains staff to a professional standard.
Private providers are required to have a contract with the NHS in order to receive payment via a Personal Care Budget. It is claimed that the budgets (which are described as ‘notional’) will demonstrate to CCGs the kinds of choices women make during pregnancy, birth and postnatally. This will apparently encourage CCGs to respond to women by increasing their offer. The claim is that this will also empower women. But it is decidedly unclear about how this can be achieved. The guidance talks about using Personal Care Budgets for birth pools, place of birth settings or breastfeeding support but all of this should be available to every woman regardless of a personal care budget. In fact, all of these used to be available to women as part of the normal care given by the NHS.
Moreover, it precludes the notion that women become ill in pregnancy. No one chooses to get gestational diabetes, pre-eclampsia, HELLP or any other life-threatening condition. What happens when your health needs change but you’ve used up your £3000 on hypno-birthing? There should be real concern about the potential lack of access to obstetric care when women have serious complications of pregnancy. Or to return to the issue of financial balance, if £3000 is a notional budget for a normal birth which can be used up in a number of ways then the acute hospital will potentially have to pick up the cost of the emergency care without a matching budget.
What does this all mean?
Scale and pace have taken precedence over caution and evidence. Academic research will take years to catch up to establish the public health consequences of this new policy.
This is a top-down reorganisation of a national service with little to no consultation, pilot schemes, peer review, oversight or risk assessment. A Health Select Committee inquiry into the maternity transformation plan was not completed because of the 2017 election. It has not been re-opened.
The Vice-Chair of the maternity transformation programme finishes his report with the following advice to LMSs: Be Bold! Don’t wait for instruction!
Clearly long gone are the years of epidemiological study, of public health planning, of consultation with experts.
Better Births is based on consumer choice issues around personalised maternity care. There is a serious lack of evidence that this restructuring will give women the vital services they need. There are fewer services, obstetric departments are being stretched even further and technology is replacing face-to-face clinical care.

On the other hand, it embeds private care and fee-for-service. And, most importantly of all this is not how a national public service works.

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Privatisation has been the economic policy of successive governments since the 1970s. All the major infrastructure, utilities and manufacturing industries which had been brought into public ownership in the immediate post-war period have been sold off, as single share offers, wholesale private transfers, or partial staged transfers. Privatisation has been developed through the remaining public services, with local authorities increasingly turning into commissioning hubs rather than direct employers, education transferring its assets and management to the private sector through the Academy programme and courts, prisons and more being owned and run by the private sector. 

That privatisation is government policy is not in question. The question is how far that has affected the NHS.  

Privatisation of the NHS began as far back as 1983 when the cleaning services started to be put out to tender. That has had fairly disastrous consequences with the spread of ‘superbugs’ being attributable to the cleaners no longer forming part of integrated core teams on wards.

Other privatisations, including IT services, facilities management, out-of-hours GP services and the 111 service, have had patchy results; some have been a waste of money, some have failed to show any benefit over public provision, some, like the cleaning services, have been cheaper but a lower standard. Interestingly these privatisations are not discussed or presented as ‘privatisation of the NHS’, or part-privatisation, although they clearly are.

The NHS is the sum of all the parts that make it function, not just its clinical services. This intellectual sleight of hand of naming private-sector takeover of asset ownership and management, ancillary and backroom services as normal business practice or ‘just outsourcing’ rather than service privatisation has allowed a significant part of the NHS to be privatised without being acknowledged as such.  

The House of Commons Library briefing on privatisation defines the need for a competition regulator as one of the essential features of the move from public to private provision. Regulators have been brought in over the last 20 years via various bodies up to the current position of the CQC and NHS Improvement, reflecting the need for market regulation. 

The Health & Social Care Act (2012)

The Health and Social Care Act (2012) continued the process of privatisation. It has become commonplace to describe the Act as a mistake. But given that privatisation is the dominant economic policy, the Act is not a mistake, it is merely a continuation of that policy.  

Privatisation is embedded in the Act in several ways. It removes the NHS in England to arm’s length from government. The relationship between the state and the service changes with the responsibility of provision lying outside the government department. The government’s remit alters significantly from being responsible for provision and planning to providing a Mandate and a funding stream to NHS England and authorising the NHS ‘kite-mark’ through NHS Identity.  

NHS Identity’s website gives advice and regulations about using the brand to the NHS family, which includes public, private and voluntary sector partners. 

The Act also created the Clinical Commissioning Groups (CCGs). Section 75 3(a) of the Act imposes requirements relating to competitive tendering for the provision of services. 

The interpretation of this provision is a source of contention with the government arguing that the clause gives CCGs choice about tendering out services and the CCGs feeling that they are open to legal challenge if they do not tender. The CCGs and Section 75 are the engine that powers the privatisation of clinical services. The constituent members of the CCGs – GPs – do not have the collective skills to carry out the complex procurement process of putting services out to tender. They use Commissioning Support Units such as Optum, the UK subsidiary of United Health of America, to perform this function. 

The CCGs are also not bound to supply the same range of services nationally. They have some core clinical responsibilities but can put restrictions on others according to their financial needs. This can lead to situations where hospitals request patients to check with their commissioner to ensure they will cover payment before they start treatment, otherwise they have self-pay and insurance options available. In all but name this makes the CCGs act as local insurance groups to their registered patients, rather than service providers with common service standards set at national level. 

Trusts and Foundation Trusts are also empowered by the Act to increase the amount of private patient income they can earn. The Act specifies that they must earn the majority of their income from NHS funding. But that is interpreted as meaning that up to 49% can be from other sources. This can include rent from retail spaces and car parks as well as private patients.  

The Five Year Forward View

Simon Stevens, CEO of NHS England, produced a Five Year Forward View (5YFV) for the NHS in England in October 2014. This is largely presented by the media, politicians of all stripes and think tanks, such as The King’s Fund, as a way of integrating services to end the fragmentation caused by the 2012 Act and to bring an end to the split between commissioners and provider organisations. In 2013, immediately after the implementation of the Act, The Better Care Fund was rolled out as a series of local programmes under different names; ‘Better Together’, ‘Fit for the Future’, etc… Its stated intention is to shift the focus from acute hospital settings into local authority based social and community care.

The 5YFV started with a series of Vanguard testbeds and will end with Integrated Care Systems and possibly Accountable (or Integrated) Care Organisations.  The stated intention of the 5YFV is to shift the focus from acute hospital settings into local authority based social and community care. In other words, even though they have different names, the two programmes have exactly the same aim.

This illustrates that the HSCA 2012 was not a mistake but is in fact a continuation of policy. That is why the findings of Michael Mansfield’s 2015 independent inquiry into Shaping a Healthier Future in NW London is still relevant. It highlights how this programme is moving services away from those areas most in need of them towards high-density, more profitable areas.

The reality of the 5YFV is that it is a re-shaping of the NHS to fit with a predicted permanent reduction in funding levels. It is based on a reduction of the total number of fully functioning blue-light A&Es from the 144 A&Es in England in 2013 reduced to somewhere between 40-70. These will be large major trauma centres. There will be no more than two for each of the 44 Sustainability and Transformation areas (STPs) which were announced in December 2015 as part of the implementation of the 5YFV. Some STPs will only have one. This is the case in Northumberland, an early adopter of the system. 

Other hospitals are having their A&Es downgraded and services transferred to the trauma centres along with their income. When campaigners are fighting across the country to save their local A&Es they are really fighting against the 5YFV. Acute and emergency care is being separated from elective (planned) care. Planned care is more attractive to the private sector as it is low risk and high income. It is one of the areas of clinical care included in the ‘7.9%’ of privatisation quoted in the Health and Social Care Select Committee’s oral evidence session. 

The 5YFV also envisages using the sale of property as a form of pump-priming of the changes. The Naylor Review (part of the 5YFV process) goes further in working on the transfer of services out of owned properties into rented accommodation, built and managed by the private sector. 

The 2012 Act also created NHS Property Services Ltd, the ‘PropCo’, which took ownership of all the properties previously in the stewardship of the Strategic Health Authorities and Primary Care Trusts. The PropCo is a private company, currently wholly owned by the Department of Health & Social Care. It also charges commercial rents. 

The 5YFV encourages the separation of midwives from the hospitals to form their own companies to provide midwifery in the community. It contains plans for the widespread use of vouchers for maternity and personal health budgets for the disabled and those with other long-term health needs. These vouchers and budgets can be spent in the private or public sector. 

Privatisation: an economic policy

Analysing the overall effect of privatisation in the NHS will take time. Whilst there is little evidence of an increase in health insurance schemes, there is evidence that more people are turning to self-pay options to avoid waiting times. For a cultural change to happen people have to accept the principle that there will be things outside the ‘NHS menu’ that they will have to pay for – that cultural change hasn’t happened yet.

Descriptions of how little impact the private sector has currently had on the NHS avoids the issue of how little unmet need is being created by the reconfigurations. It is in the unmet need that the principles of universal and comprehensive care are being lost.

The report from the Health and Social Care Select Committee on Integrated Care is absolutely explicit about the need to retain ‘choice’ of providers and to avoid the ‘danger of creating airless rooms in which you simply have one provider who is there for a huge amount of time’.

This is the economics of privatisation and it needs to be addressed at parliamentary and legislative level. The Health and Social Care Committee recommends new legislation. On the current trajectory that will mean the introduction of ACOs.

The battle to promote the principles of public service as public good still has to be fought and won if the privatisation agenda within the NHS is to be brought to a halt.

The NHS [Reinstatement] Bill will be presented under the 10 Minute Rule by Eleanor Smith MP on 11 July 2018.

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I have not blogged about the NHS for quite some time. In fact the last occasion I explicitly did so was when Wendy Savage and I were campaigning together in 2011 to strangle the Health and Social Care Bill at birth (our talks to students still reside somewhere on YouTube). I remain sceptical and confused about the BMA’s slipshod, innocent or opportunistic failure to act decisively. I was alongside many others literally yelling at them through a megaphone even as they reached their momentous resolution to step aside and raise the white flag. In doing so, as Wendy and I had both tried to spell out, they effectively condemned the NHS as we had come to revere it through the post-war, social democratic or welfare statist era. The post-2011 careers of the principal decision-makers should be researched? Who won? Who lost?

In this offering I draw on a paper co-authored with Sasha Scambler and Ewan Speed and published in Social Science and Medicine. It represents an extension of an argument I have been pushing for some time. I have maintained that not only the national distribution of longevity and health but also the planning and delivery of health care have been undermined and perverted by the very predictable implementation and extension of the Health and Social Care Act of 2012.

Trading on a plea for forbearance, I must refer once more to the greedy bastards hypotheses (GBH), namely, the announcement that it is the rich who – mostly indirectly, but issuing nevertheless from an expedient strategic amorality – restrict and sometimes totally cut the supply of oxygen from those asset flows conducive to health and well being and threaten the NHS.

So how to understand the prospects/plight of the NHS? I will offer a summary (sociological) analysis before committing to a series of personal/political interventions.

In the 1970s the American abrogation of Bretton Woods and the emergence of the Eurodollar freed up money capital from national regulation by central banks; plus the international recession drew banks deeper into the global arena. The word financialisation was used to encompass not just this deregulation and internationalisation, but also a shift in the distribution of profits from productive to money capital, and to a reorientation reaching deep into industrial corporations towards the financial sphere. Within banking, deregulation precipitated capital centralization in banks with ‘global tentacles’, whose activities ranged from financial production to speculation in derivatives, while institutional investors controlling capitalized deferred wages became important centres of allocative as well as strategic power. This was all before the global financial crash of 2008-9.

The greedy bastards referred to above comprise a small proportion of the 1% who have profited most, and obscenely so, from post-1970s ‘financial capitalism’. A cabal or hard core of CEOs/directors of largely transnational corporations, major rentiers, and, most conspicuously, financiers or ‘banksters’, now provide financial capitalism’s cutting edge. They epitomise fine-tuned class action (or ‘class warfare’). We are witnessing a new breed of ‘super-rich’ pitted against a squeezed middle, enlarged ‘precariat’ and a US-like category of the abandoned. Their class supremacy has been accomplished via the purchase of power from Britain’s political elite (whether New Labour, Coalition or Tory), which has in turn become more controlling of its publics, even repressive. Britain is now ruled by a governing oligarchy or plutocracy. Capital buys power, and in financial capitalism it gets more for its money than during the preceding postwar era.

In the early Thatcher years, attempts were made to introduce ‘corporate’ management structures to the NHS, leading commentators to talk of a ‘new managerialism’. Her commitment to markets prompted the NHS and Community Care Act of 1990. The resultant ‘internal market’ sat on a spectrum somewhere between a bureaucratic ‘command and control’ economy and a private fee market. If it was closer to the former it was also a sign of things to come.

Thatcher’s displacement by Major saw the introduction in 1992 of the Private Finance Initiative (PFI). This allowed for the private sector to build (and own) new hospitals and other health care facilities, which they then leased back to the NHS at often exorbitant rates on the back of 20-30 year deals. It was a convenient arrangement for the political elite since PFI building and refurbishment did not appear on government books (they represented an investment of private not public capital). Blair and Brown lovingly embraced PFIs from 1997 to 2010. As Alyson Pollock presciently noted, one day the chickens would come home to roost. And they have: PFIs are a major contributor to the indebtedness of many an NHS Trust, the more so given the cuts or austerity measures following the financial crash.

The 2010 election resulted in a Cameron/Clegg coalition that backtracked on a (Tory) pre-election promise not to engage in a top-down reorganization of the NHS. Health Minister Lansley published a White Paper ‘Liberating the NHS’ a mere 60 days after the election. It was the product of protracted and insistent pre-election private sector lobbying. This was followed by the Health and Social Care Bill that opened the door for a root-and-branch privatisation of health care in England. It was a long, complex and devious Bill. There were five main ‘rhetorical’ themes: strengthening commissioning services; increasing democratic accountability and public voice; liberating provision of health services; strengthening public health services; and reforming health and social care’s arm’s length bodies. Five organizational changes were mooted: by April of 2013 the existing 192 primary care trusts to be abolished and GPs to join commissioning consortia; consortia to control 80% of NHS budget; services to be purchased from ‘any willing provider’; all NHS hospitals to be foundation trusts by 2014; and commissioning to be overseen by an NHS ‘financial regulator’, Monitor. Like many others, critics like Wendy Savage and I were not fooled. Why would the new commissioning consortia be better than primary care trust commissioning? What would the role of private companies be with regard to commissioning criteria? What would be the role of Monitor in European law? How would patients have ‘more choice’? Where would the efficiency savings come from? Would the pursuit of efficiency savings be at the expense of quality?

A period of ‘consultation’ and debate was extended. The medical profession, a reluctant recruit to the original concept of an NHS, questioned and subsequently opposed the Bill. Then it folded. They were ready to take industrial action to defend their pay and conditions but not to safeguard a public NHS. Public protests were similarly ineffective and the Bill became an Act in March of 2013. Later in 2013 the coalition pushed a (strategically re-written but equivalent) ‘regulation 75’ through the Houses of Parliament, removing residual obstacles to the unfettered promotion of for-profit health care.

A number of comments are in order here. Neither the Tories nor the coalition had a mandate to ‘reform’ the NHS in the way they did. Moreover it was a reform carried out against the background of Brown’s efficiency savings announced in mid-2009 and amounting to £15-20bn in three years starting April 2011. The reform was opposed by the medical, nursing and other health professions; polls showed widespread public concern; and a series of campaigns and protests were sidelined and ignored. Although a small number of health professionals and academics were recruited to the coalition cause, there is no doubt that ‘best evidence’ on comparative health care bore testimony to the regressive nature of the Health and Social Care Bill/Act: this was ‘policy-based evidence, not evidence-based policy. Finally, it emerged later that for-profit providers were not only lobbying the Tories before the election, but were intimately involved in the thrust and composition of the Bill (e.g. via the Future Forum). They were lining up to takeover NHS services. The leading private providers – H5, accounting for 80% of private hospitals and 85% of private beds – formed an alliance as early as December 2010. Much of this ‘secret’ activity was portrayed as ‘internal to the NHS’ rather than as external lobbying.

We are already experiencing the predictable short-term effects of the Health and Social Care Act, with ill-equipped and predatory for-profit providers taking over services and benefitting from the NHS ‘brand’. The ‘revolving door’ is also well oiled. Alex Scott-Samuel has taken a medium to long-term view, anticipating that: the NHS will become a subcontracting operation privileging competing private providers; that services of ‘low clinical priority’ will cease to be free; that a market for health insurance will emerge, affordable for the affluent, which will drive up costs (administrative, fees, private profits); and that the development of personal health budgets will lead to personal charges as commissioning groups come to operate on an individual basis in order to be compatible with the insurance companies (i.e. an end to ‘population-based pooling of risk’).

In short, the Health and Social Care Act was always going to be and is an unmitigated disaster for which the BMA in particular was a shameful accomplice. PFI debt, cuts and privatisation are destroying perhaps the most just, efficient and effective – ‘imperfect’ – health care system in the world.

The point of this blog is to ask why. It seems clear enough. The super-rich greedy bastards who fuel our governing elite or plutocracy – that is, those who buy, hold and use power to their advantage – now have sufficient sway in financial capitalism to open up (even) the NHS for profiteering. Follow the career trajectories of Lansley and his successor Hunt (and a few Blairites). The privatisation of the NHS, and the future commodification of health care, might have been halted by a BMA-led campaign provoking a crisis of legitimation for the power elite, but that opportunity was lost. We need to recognise that if capital can purchase enough power, it will pursue accumulation via, to borrow Wallerstein’s phrasing, ‘the commodification of everything’. It’s a class/command issue. If we ignore this sociological/structural dimension, we become ideological co-optees and deny ourselves the theoretical capacity to explain and counter regressive policies. To paraphrase Bill Clinton, ‘it’s class warfare, stupid’.

Reference

Scambler,G, Scambler,S & Speed,E (2014) Civil society and the Health and Social Care Act in England and Wales: theory and praxis for the twenty-first century. Social Science and Medicine 123 210-216.

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Legal and Policy Briefing for the Second Reading of the National Health Service Bill 2015-16 in the House of Commons, on 11th March 2016

The NHS in England is being dismantled. This is the result of Parliament over 25 years applying market ideology. The main Acts which made this happen were the:

  • NHS and Community Care Act 1990: introduced the internal market into the NHS; split purchasers from providers, so that the planning and delivery of services was to be undertaken by separate bodies, with the money flowing between them; ended direct management of services by health authorities with the creation of ‘NHS trusts’ as self-governing accounting centres (bodies corporate) with borrowing powers, and their own finance, human resources and PR departments; brought in GP fund-holding, which delegated budgets to individual GP practices enabling them to be commissioners or purchasers of services and to retain surpluses.
  • NHS (Private Finance) Act 1997: empowered NHS trusts to enter into externally financed development agreements;
  • Health Act 1999: introduced Primary Care Trusts;
  • Health and Social Care (Community Health and Standards) Act 2003: introduced NHS foundation trusts and their regulator, Monitor;
  • NHS Act 2006: de-coupled the Secretary of State’s duty to provide and secure services in accordance with the Act, from the duty to promote a comprehensive health service;
  • Health and Social Care Act 2012: abolished the duties of the Secretary of State to provide and secure services in accordance with the Act, and to provide listed health services throughout England, replacing the latter with a duty on over 200 new clinical commissioning groups to make contracts for those services for persons for whom each Clinical Commissioning Group is responsible; established the NHS Commissioning Board (NHS England); prospectively abolished NHS trusts, with the intention of them all becoming NHS foundation trusts; allowed NHS foundation trusts to receive 49% of their income from outside the NHS; created “public health” functions as two legal categories split between the Secretary of State and local authorities, and carved them out of the NHS; introduced virtually compulsory contractual tendering for providing NHS services; extended Monitor’s role as an economic regulator with functions aimed at preventing anti-competitive practices.

    Summary of main Clauses of the NHS Bill

Clause 1: restoring the founding principles and excluding EU and international trade, competition and competition rules.

The Bill would reinstate the Secretary of State’s legal duty to provide the NHS in England, abolished by the Health and Social Care Act 2012 (Clause 1(1)). It would be delegated to local Health Boards, to NHS England with its regional committees and to local authorities (see especially Clauses 6, 8 and 9 below).

Taken together, these and other provisions of the Bill will have the effect of taking the market and pricing tariff out of the NHS. The uncoupling of resource allocation from service provision through the pricing system and market competition would be discontinued, and resource allocation would return to being on the basis of all-inclusive geographic populations, not membership of a group. Commissioning would focus on the essential tasks of assessing needs, planning to meet those needs, setting clinical standards, matching funding to delivery, capturing information to support the various stages of the cycle, and ensuring accountability, without commercial contracting except in the most exceptional circumstances when absolutely required. At the same time the billions of pounds saved from administration of the market will enable new positions to support and enhance planning information and direct clinical care including employing more doctors, nurses, therapists and support staff and restoring much needed services such as mental health and therapy services.

Clause 1(3) provides a primary legislative framework for integrating health and social care services (see further Clause 9 below).

Clause 1(4)(a) declares the NHS to be a “non-economic service of general interest” which is aimed at exercising the UK’s competence to provide, commission and organise health services free from any constraints in the EU Treaties; and declaring the NHS to be “a service supplied in the exercise of governmental authority as a service supplied neither on a commercial basis, nor in competition with one or more suppliers” is aimed at excluding the operation of the World Trade Organization’s General Agreement on Trade in Services (Clause 1(4)(b)). This is supplemented by Clause 23, which is aimed at preventing the Transatlantic Trade and Investment Partnership (TTIP) and other international agreements affecting the NHS without the approval of Parliament, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly.

Clauses 2-5 contain provisions intended to frame restoration of the founding principles. These include particularly the duty of the Secretary of State to provide key services throughout England.

Clause 6: re-integrating public health into the NHS and allowing delegation to local authorities, Health Boards, and to a re-constituted Public Health England and NHS England Public health functions were carved out of the NHS by sections 11 and 12 of the Health and Social Care Act, supplemented since by regulations. (The Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2013 (S.I. 2013/351), amended in 2015 (2015 No. 921).)  For example, the Secretary of State’s public health functions include vaccination, immunisation and screening, whilst services to promote healthy living, such as sexual health services, are the responsibility of both local authorities and the Secretary of State. A general power to provide services to prevent, diagnose and treat illness – previously only a function of the Secretary of State – was conferred on local authorities; a power that may be exercised as a result of the ‘devolution deals’ that will be implemented through secondary legislation under the Cities and Local Government Devolution Act 2016. Regulations now require local authorities to provide or make arrangements securing provision of open access sexual health services in their area by exercising the public health functions of the Secretary of State to make arrangements for contraceptive services; and by exercising their functions relating to preventing the spread of and treating sexually transmitted infections.

Clause 6 re-integrates these functions into the NHS by returning them to the Secretary of State. These would then be delegated in accordance with regulations to local authorities and Health Boards in accordance with joint proposals that they would prepare under Clause 9; and to Public Health England and to NHS England reconstituted under Clause 7 as Special Health Authorities. The re-constituted NHS England’s functions would be performed via regional committees (Clause 8).

The reason for this ‘re-integrate, delegate and propose’ approach is to acknowledge the view that public health and many community services should be delivered through and by or in conjunction with local authorities, whilst restoring these services as an integral part of the NHS. The fact that a service was designated as a ‘public health service’ and provided by a local authority would not be a basis for permitting charges.

Clause 9: Health Boards would plan and deliver services, and be jointly responsible with local authorities for public health and integration of social care

Health Boards would plan and deliver health services on behalf of the Secretary of State on the basis of bottom-up proposals prepared by local authorities with NHS England, clinical commissioning groups, NHS trusts and foundation trusts and approved by the Secretary of State. Patients, clinicians and other staff, voluntary organisations, trade unions and academics would be empowered to participate in preparing the proposals which would be finalised over two and a half years and would be required to minimise disruption in accordance with regulations.

Having assisted in developing the proposals for Health Boards, clinical commissioning groups, NHS trusts and NHS foundation trusts would be replaced by the Health Boards (Clauses 13-15), and NHS re-constituted (Clause 7); and the regulator, Monitor, would be abolished (Clause 18).  Health Boards would also be responsible jointly with local authorities for bringing forward proposals in accordance with regulations for the planning and delivering public health services, and integrating health and social care services.

Integration of health and social care requires careful consideration, and ideally its own primary legislation (not only regulations), as in Scotland. ( Public Bodies (Joint Working) (Scotland) Act 2014.)  The original distinction, which sought to balance the interests of hospitals and local authorities, was created by the NHS Act 1946 and the National Assistance Act 1948, and has been fairly described as “a fudge”. (Bridgen, P and Lewis, J. Elderly people and the boundary between health and social care 1946-91: whose responsibility? Nuffield Trust, 1999.)  The broad formal differentiation was between free nationally-provided health services and means-tested locally-provided social services. Over time this fudge has been exploited in various ways to enable a shift from NHS-funded to means-tested local authority care, using policies such as Care in the Community, closure of NHS long-stay beds and NHS day care provision, and introducing continuing care criteria which enabled the NHS to discontinue NHS care by time limiting care or redefining eligibility.

There is much genuine concern that integration would lead to the provision of means-tested – and reduced – health services. Changes proposed by the Bill in the location of functions through delegation do not extend to changes in the power to charge, and health services must remain free. We support the principle of free publically provided social care, but this is an issue which ideally requires further primary legislation.

Contracts with and/or grants to voluntary organisations would be permitted.

Administration of medical, dental, ophthalmic and pharmaceutical services would also be the responsibility of the Health Boards (Clause 10).

Clause 12: the Secretary of State would be given a limited power to give directions

The Secretary of State would have a general but limited power to give directions to Health Boards and NHS England (and others). He or she would be obliged to have regard to the desirability, so far as consistent with the interests of the health service and relevant to the exercise of the power in all circumstances, of protecting and promoting the health of patients and the public, and of the bodies being free to exercise their functions in the manner that they consider best calculated to promote the NHS. Neither could the power be used to interfere with the professional independence of health service staff. Their professional autonomy and right to participate in scientific and public debate on matters relating to health and the needs of their patients would be guaranteed as happened prior to 1990.

These directions must be contained in regulations, except in a genuine emergency, so that the exercise of executive power would be open to Parliamentary scrutiny and procedure. This provision is a modified version of the duties of autonomy (the hands – off clauses) introduced by the 2012 Health and Social Care Act and which would be abolished by Clause 2.

Clause 16: Transferring staff should not result in large redundancy payments for technical job losses

After consultations with trade unions, the Secretary of State would be required to make regulations to set out the terms and conditions applying to the transfer of staff. These include entitlement to redundancy payments, particularly for senior staff whose job loss is technical rather than real. The Bill will not affect the vast majority of staff engaged in clinical care, and those skilled in the essential tasks of commissioning will still be required.

However, the inescapable down-side of the Bill is that there will be the unavoidable loss of a number of jobs directly connected with administering the market bureaucracy and promoting competition, such as managing commercial contracting and billing, as well as positions in finance, human resources and the marketing and press departments. This is particularly distressing because most of the jobs that would be lost would be those performed by people with clerical, accounting, media and similar skills, many of whom will not be particularly well paid. Their positions need to be addressed with the greatest sensitivity and flexibility, in close consultation and cooperation with trade unions, in bringing about a just transition. This should involve proactive opportunities for redeployment and re-skilling. Involvement of trade unions in the design of the Health Boards is also intended to help keep job losses to the absolute minimum.

Clause 17: local accountability would be ensured by Community Health Councils

Community Health Councils, with the duty of representing the interests of the local public in the health service, would be re-established. Since 1990, there has been a progressive downgrading of the systems and mechanisms for local accountability alongside growing complexity resulting from the increasing fragmentation of services and the different responsibilities of local authorities, CCGs, trusts, foundation trust boards, Monitor, NHS England and the Care Quality Commission for commissioning and providing NHS funded services. The Bill simplifies those structures and restores area responsibilities. Further consultation will be required to enhance representation of the public, patients, local authorities and trade unions in order to strengthen local accountability.

Clause 19: preventing NHS foundation trusts from reducing services

This Clause, whilst not technically necessary within the scheme of the Bill, highlights the need to prevent NHS foundation trusts reducing NHS services and disposing of assets.

Until April 2013, Foundation Trusts were required to provide “mandatory services” listed in their authorisations. From April 2013 until March 2016, these services were listed as “Commissioner Requested Services” (CRS) under their licences. From April 2016, CRS will be re-designated, and Monitor has said that it expects services CRS – i.e., mandatory services until April 2013 – to be reduced.

Buildings and equipment needed to deliver CRS must be identified on an Asset Register, with restrictions on their disposal. Reductions in services designated as CRS will give NHS foundation trusts greater freedom to dispose of them or use them for other purposes such as for private patients. This is particularly worrying in the context of the ability of NHS foundation trusts to obtain 49% of their income from outside the NHS.

It is also very worrying and unacceptable that Monitor has stated that “[i]t is not intended that the [CRS asset] register should be a public document so the licensee can apply appropriate measures to ensure its confidentiality”. (The asset register and disposal of assets: guidance for providers of commissioner requested services. Monitor, April 2014.) These are NHS assets and the public must have the right to know what they are.

Clause 20: national terms and conditions would apply

This Clause is intended to ensure that the UK-wide ‘Agenda for Change’ system under the auspices of the non-statutory NHS Staff Council that has been in place since 2004 would apply to all staff employed by those who provide NHS services. Recognising the NHS as a national service and the desirability of staff being able to move freely between its constituent parts without suffering detriment would help ensure fairness, equity and equal value for NHS staff and good patient care. This Clause would not affect those staff not currently covered by the Agenda for Change system such as hospital doctors and dentists and very senior managers.

We are aware that currently junior doctors have been told by the Secretary of State that a national contract will be imposed on them. If they do not agree to this, Foundation Trusts have the ability to and may decide to offer locally negotiated terms and conditions of service thereby introducing local pay bargaining on a foundation trust by foundation trust basis. Under these contracts junior doctors would be required to treat both NHS and private patients regardless of their own moral position on the NHS and its values. Junior doctors must be protected from exploitative employers and not be used to facilitate new inequalities.

Clause 21 – Centralisation and reduction of PFI obligations

The Private Finance Initiative (PFI) in the NHS has placed excessive financial burdens on NHS trusts and NHS foundation trusts which detrimentally affect their ability to deliver services to patients.

Clause 21 would transfer financial obligations for the buildings and maintenance under NHS PFI agreements to the Treasury, which would have the duties to assess and publish the obligations, and to explain to Parliament how it proposed to reduce them. This would include publication of detailed information on interest rates, equity returns, refinancing deals and subcontracts, so that all public money would be auditable.

Service contracts linked to PFI for ancillary and other services would not be renewed, as these services would be directly provided and managed in-house by Health Boards. Adjustments would need to be made to the resource allocation formulae as required to reflect differences between Boards, for example, in maintenance, capital charges and other obligations. (In time, the capital charging system should also be abolished.)

Since the Bill was tabled, one potential limitation in the Clause as currently drafted that has been pointed out is whether it would ensure a return to the public sector of any property and other assets that PFI deals may have transferred to or vested in the private sector; this should be covered and can be addressed at the committee stage of the Bill. Concerns have been expressed that taking the debts away from trusts would render them a more attractive privatisation prospect; this cannot occur under the Bill as trusts will no longer exist and will be replaced by Health Boards.

However, one clear limitation of the Clause is its applicability only to NHS PFI deals. We think there is merit in a new Bill to propose ending PFI deals across all sectors.

Clause 22 – Abolition of new charges for migrants and overseas visitors

Sections 38 and 39 of the Immigration Act 2014 enable the imposition of new charges on certain categories of persons.

Section 38 empowers the Secretary of State by order to require certain migrants to pay a charge for NHS services, known formally as “an immigration health charge”, payable in advance when applying for leave to enter or remain in the UK or when applying for entry clearance. The Immigration (Health Charge) Order 2015 has now been made under this section, imposing since April 2015 an annual immigration health surcharge on people applying for a visa to enter the UK to work, study or join their family for more than six months, or to extend their visas for a limited time. EEA nationals are excluded. Australians and New Zealanders were also initially excluded, but the government has announced that they will be included from April 2016. Exemptions apply to about a dozen categories of person, such as those who are seeking asylum, are identified as a victim of human trafficking, and have suffered certain domestic violence). This charge is currently £200 per person per year, or £150 for students. Children and other dependants are also charged at these rates.

Section 39 of the Act has the effect of extending the categories of persons who can be regarded as “overseas visitors” and so in the words of the Explanatory Notes to the Act, “ensuring they can potentially be charged for health services throughout the UK.” It provides that people needing leave to enter or remain and not having it, and people who have limited leave to enter or remain, are not to be treated as ordinarily resident. This includes people who have lived in the UK and paid taxes for several years. (These charges are now imposed under The National Health Service (Charges to Overseas Visitors) Regulations 2015.)

These sections offend against the fundamental principles of the NHS. They are also potentially in violation of the United Kingdom’s long – standing international legal obligation under the International Covenant on Economic, Social and Cultural Rights to respect, protect and fulfil the right to health without discrimination, and so would be repealed.

Moreover, the complexity of both sets of the 2015 Regulations makes determining the people who must pay or who do not have to pay a bureaucratic nightmare; and it is highly questionable whether the rules will raise more money than the costs of administration.

Clause 24: allows flexibility in timing of implementation of the Bill

The timescale for implementation is flexible over a twelve-month period, save for clause 1 which would come into effect on royal assent. Further flexibility is provided by allowing proposals for Health Boards to be prepared and finalised over two and a half years, and not replacing CCGs, NHS trusts and NHS foundation trusts until after they have assisted local authorities with those proposals.

Clause 25: further amendments and repeals are necessary

Many more amendments to and repeals of existing legislation than are mentioned in the Bill would be needed. It was originally proposed that these would be included in a parallel Act of consequential provisions, as was done in 2006. However, as that Act does not exist currently as a Bill, Clause 25 proposes that this would be done via regulations. These amendments would include, for example, abolition of Healthwatch.

Professor Allyson Pollock and Peter Roderick, Queen Mary University of London.  The authors of this Briefing are the co-authors of the Bill.

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The National Health Service in England is being dismantled. But you wouldn’t know it from listening to the radio or reading the newspapers. As so often, you have to look beyond the headlines about pressures on funding and the junior doctors’ dispute to find out what’s really going on. In 1990, Kenneth Clarke introduced an internal market into the NHS, following on from the ‘options for radical reform’ set out by Oliver Letwin and John Redwood in 1988. It had three pillars: GP fund-holding (delegating budgets to individual GP practices); the replacement of health authorities by ‘NHS trusts’ (self-governing accounting centres with borrowing powers, and their own finance, human resources and PR departments) and the splitting of purchasers from providers (the planning and delivery of services was to be undertaken by separate bodies, with the money flowing between them). In its 1997 manifesto, New Labour promised to ‘end the Tory internal market’. It did get rid of GP fund-holding (only to reintroduce it later as Practice Based Commissioning), but otherwise took the Tories’ ideology even further by introducing, in 2003, the market-oriented ‘NHS foundation trusts’ and their regulator, Monitor, as well as scaling up the Private Finance Initiative. Clarke was able to say on the sixtieth birthday of the NHS in 2008 that ‘in the late 1980s I would have said it is politically impossible to do what we are now doing.’

Then came Andrew Lansley’s Health and Social Care Act 2012. No longer does the government – or anybody else – have a legal duty to provide hospital services throughout England. The hundred or so NHS trusts were all prospectively abolished, and a plan set out to transform them (if not to close them down or sell them off) into foundation trusts. The 150 or so foundation trusts had their private patient income cap abolished and were permitted to receive 49 per cent of their income from non-NHS sources. About 113 private providers have since been licensed by Monitor, and tendering for services has been made virtually compulsory. ‘Public health’ has been carved out of the NHS, and shared between local and central government. Meanwhile, Lansley, having stood down as an MP before the election in May, has been given a peerage and hired as a consultant to Bain & Company, which, according to its website, ‘helps leading healthcare companies work on the full spectrum of strategy, operations, organisation and mergers and acquisitions’. The appointment at Bain was signed off in July 2015 by Baroness Browning, who chairs the Advisory Committee on Business Appointments – herself a consultant to Cumberlege, Eden and Partners, ‘a specialist consultancy to the health sector’ led by Baroness Cumberlege. You couldn’t make it up.

We are now at a crucial time in the wrecking process. Under the 2012 Act, clinical commissioning groups (CCGs) buy services from providers, especially from NHS foundation trusts. But the trusts are no longer obliged to provide particular services. Since April 2013, their services have fallen essentially into two categories: Commissioner Requested Services (CRS), and the rest. Services designated as CRS are subject to ‘continuity of service’ restrictions on the trust’s ability to cut or alter them. Monitor has the power to make the trust provide CRS services for a specified period, but cannot stop them being cut once that period expires. Trusts also need to have Monitor’s consent before they sell off buildings and equipment used to provide CRS. Services that are not CRS are not subject to these restrictions. So the more services that are not designated as CRS, the more freedom an NHS foundation trust has to do what it likes – so long as 51 per cent of its income comes from NHS services.

When the 2012 Act was implemented, the services that foundation trusts had to provide under the previous rules were automatically designated CRS for three years, until April 2016, in their new licences. But Monitor said then that the planning and purchasing responsibilities of CCGs include ‘designating a range of services that local commissioners believe should continue to be provided locally if any individual provider is at risk of failing financially. We call these Commissioner Requested Services.’ CCGs are supposed to imagine that the foundation trusts they contract with could financially fail and to use a four-stage Designation Framework to come up with a new list of CRS by April 2016 on the basis of that imagining. ‘We expect the number of services that are designated as Commissioner Requested Services to decrease as a result’ of CCGs doing that, Monitor says, because if a trust goes bust it is expected to provide fewer services than it would otherwise. In other words, services that were mandatory until April 2013, and which for three years afterwards will have had some protection from ‘continuity of service’ conditions, are expected to decrease. This is an instance of applying powers supposed to ensure continuity in order to bring about discontinuity.

Halting the demise of the NHS in England won’t happen without a new law. The National Health Service Bill, scheduled to have its second reading in the House of Commons on 11 March next year, would prevent the specific sleight of hand I have described from going ahead, as well as reversing 25 years of marketisation. It was tabled in June by the Green MP Caroline Lucas, and is supported by Labour (including Jeremy Corbyn and John McDonnell), as well as by Lib Dem, SNP and Plaid Cymru MPs and the British Medical Association.

The question now is whether Labour under Corbyn will end its support for the market in the NHS and get behind the bill. The shadow health minister, Heidi Alexander, is still finding her feet, but the signs are not good. Unlike McDonnell, she has not brought in new political advisers. She is being advised by those who advised Andy Burnham, and judging from a meeting I had with her very recently New Labour thinking on the NHS is for now still very much in place. Ross McKibbin, writing in the LRB of 8 October, expected Corbyn’s leadership to end in tears. If that turns out to be the case, one reason may well be that Corbyn just wasn’t able to translate the support he has in the party into parliamentary backing.

First published in the London Review of Books.

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Back in 2011 there was thought to be a consensual political narrative on the NHS: no pointless reorganisations. However, David Cameron was soon persuaded by his old mentor Andrew Lansley to bring in market oriented reforms and, supported by the `orange book’ LibDems he did just that. However, the story of those reforms are not the focus of this article (see here for information on the reforms). The Health and Social Care Act of 2012, which was widely anticipated to be a disaster in waiting, has been a disaster in actuality.

The re-organization that has followed the Act led to an extremely complex organizational and governance structure which has been distracting to the NHS, to say the least. It has taken place during a period of financial turmoil resulting from a fixed budget and the Quality Innovation Productivity and Prevention Programme (QIPP), which is itself linked to cost and efficiency savings in the order of £20billion over the next parliament.

What’s more the leadership of commissioning has been stripped out at a time when major service change is needed. Things are so bad that even the King’s Fund (who were cautiously optimistic about its introduction at the time) have been critical of its outcomes. Lansley was reshuffled out of the job by September of 2012 and Jeremy Hunt was brought in to `steady the ship’. By 2014 it became clear that the Health and Social Care Act couldn’t be made to work so a face saving solution had to be found.

The incoming Chief Executive of the NHS, Simon Stevens has subsequently been quietly sidelining the reforms and Jeremy Hunt, seemingly bereft of ideas himself has been supporting him. This has taken place quietly, because politically the Government cannot openly accept the failure of the reforms.

The QIPP challenge has been redoubled and Stevens put forward a plan whereby if the Government funded £8bn a year then the NHS would reform to achieve the rest of the £20bn Government requirement. One of the first steps in the Stevens process was to create Units of Planning around each `health community’ in November of 2014. These new bodies (which have different names in different places) comprised of the CEO’s of all the NHS and local authority social services in each health community area and it has the job of planning health and social services and has the authority to make decisions on behalf of the individual health and social care organizations. It can make decisions that will be binding on all other health organizations. It’s very unwieldy and certainly has its own governance issues, but it’s there. This quietly sidelines the Health and Wellbeing Boards that are meant to be setting local strategy (though many of the same players are present).

A second change Stevens has brought in is to bring about shared commissioning, between CCGs and Area NHS Teams,  of primary care services. In practice there is little shared about the commissioning. I chair a Primary Care Commissioning Committee of a CCG and we are being performance managed by NHS England. This creates a conflict of interest issue within the CCGs as the GP membership organisation is now responsible for commissioning GP and community health services. In short, the CCG is increasingly taking on the roles that the old Primary Care Trusts used to do and the freedom of clinical commissioning groups is being reigned in to an extent by the new developments.

However, it’s the Five Year Forward View (FYFV) (and the separate devolution agenda) that sets out the new direction and, yes, this is essentially reforming the reforms. The NHS budget as a percentage of GDP is set to fall from its high of 9% in 2009 to under 7% of GDP by 2021. Against this, the projected demographic related demand points to a £30billion funding gap by 2021 and when compared the EU average looks miserly. In a real sense FYFW was the NHS’s response to this funding reality with the government putting up £8 billion a year and the NHS finding the rest via reforming services. These reform models have very recently been put into operation as Vanguard sites.

The NHS has realized that the diversity and lack of system leadership brought about by the reforms is damaging to what really needs to be done to transform services and to increase efficiencies, which is to integrate health and social care services. The NHS itself is seen as too big to do this so responsibility is being devolved to local communities. The FYFV is essentially inspired by `the Valencia model’. In Valencia all health and social care services have been contracted to a single (private as it happens) provider who has taken on the management of all the services within the health system and it’s been heralded as a great success. The NHS is essentially adapting the model in its FYFV.

It proposes a small number of models, but essentially two stand out. The first one is the Primary and Acute Care Systems  where one organization will take responsibility for all services within a defined health community. This could be one NHS organization or a new organization that comprises all the organizations within that community. It can be pictured as the local District General Hospital running everything from the Hospital itself to GP services to mental health services and community care services within a single organization.

The other key model is the Multi-Specialty Provider Service. Here groups of GP practices would expand, bringing in community health services and hospital specialists within a single organization within an area to provide integrated out of hospital care. The Vanguards are set to devolve their capitation funding to the new organizations (which they can’t legally do at present) – which will make the CCGs themselves redundant. So I would argue that CCGs are on their way out.

Indeed, the CCGs and Hospital Trusts were completely side-lined (and without consultation) when the whole NHS budget of Manchester was given to the Local Authority to manage from 2017 provided they elect a mayor. This was a surprise announcement by George Osborne earlier this year. I have heard from reliable sources that Simon Stevens wasn’t consulted when this decision was made. Cash strapped councils around the country are now clamoring to do the same and the Cities and Local Government Devolution Bill is currently wending its way through parliament to allow them to do just that.

If funding within the NHS is challenging, it is many times worse in the social care sector and there are no additional funds heading in that direction. However, the prospect is raised of the Local Authorities being able to raid the NHS budget to fund social care, as Roy Lilley has argued. There is already experience of the Public Health Budget (devolved to Local Authorities from 2013) being raided to fund core Local Authority services as long as some health impact can be demonstrated. I’d expect to see this intensified once Councils have their hands on the whole of the local NHS budget for their area.

Certainly more needs to be done to protect social care services and there is an impact on length of hospital stay if a social care package takes time to be put in place prior to discharge. There is also their role in prevention – for example, of falls etc amongst the elderly in the community. But this won’t be shared budgets. There will be a raiding the NHS budgets in ways I don’t think envisioned by Simon Stevens in the FYFW. Indeed, indications from the National CCG forums are that there is already discontent and in-fighting in the Manchester devolution over proposed restructuring and budget reallocations – though nothing has hit the press yet.

However, the Stevens plan is running into other problems already. Hospital Trusts in particular are not performing as well as anticipated. The Kings Fund highlights that the Hospital sector has only made a 0.5% increase in productivity over the last 5 years. This won’t cut the mustard and threatens the projections within the FYFW. What’s more these productivity gains have been made on the back of massive overspending by Hospital Trusts – up to £822m million deficit in the last financial year which is 8 times that posted in the previous year. The plan is therefore already facing challenges. Moreover, on the ground, it’s seen as yet another plan that’s been imposed from above with short timeframes and minimal consultation. In short it’s not owned by the Trusts or the clinicians within them which will impact on the enthusiasm with which they are implemented. Even in the primary care sector lean working techniques which may allow GPs to see more patients in a day (and reduce the number of A&E attendances in a PWC projection) are sometimes viewed suspiciously by overworked GPs as wanting them to work harder for the same money. Magnify this right across a reform weary health sector and a what’s in it for me attitude may well arise especially as contracts and wages are themselves altered as part of the reforms.

There are other elements of Health Policy over the first 100 days since the election that are also impacting on the NHS. The Government’s commitment to a 7 day a week NHS and to run 8am-to 8pm GP services bring the Department of Health head on with the consultants the GPs and the junior doctors as they try to renegotiate their contracts. It is not just vested interest here as the Clinicians don’t see these 7 day working proposals as evidence based. No government has yet managed to successfully bring in new health policies when all three branches of the medical profession are aligned against them. But the 7 day working proposals pale almost into insignificance though when set to the backdrop of the FYFW and the devolution agenda. What is interesting is that the Government has decided to fight all these battles at once rather than pick them off one at a time. Machiavelli would have been shocked.

So there are definitely stormy waters ahead, but there isn’t a plan B. We live in an interesting time for health policy.

This was first published by Discover Society

 

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Foreword

The historical and social significance of the National Health Service (NHS)

Social change is now so rapid that it is hard to make sense of it let alone learn from it. The opening sentence of this report is a measure of that. The first words: ‘The NHS may be the proudest achievement of our modern society’, while seeming to assert the value of the NHS, fail to reflect its full significance.

Our pride in it is beyond doubt – no ‘may be’ about it.  It is impossible to overstate the importance of the NHS: It needs to be spelled out that the NHS is an evolutionary social development which has changed the lives of everyone in this country, “our country”, and peacefully effected change in “our” society so profound that we do not recognise it, or fully remember the circumstances in which it arose.

For example, optimism in 1945 was less important than the clear-eyed determination to eradicate pre-war squalor, ignorance and fear: of sickness, of the cost of medical treatment and of the loss of livelihood that it entailed.

Only those people now well into their seventies can remember that the sacrifices of war had not been left behind in 1945: despite rationing, food and fuel shortages were critical and the scars of the blitz still dominated urban landscapes. The pre-war housing crisis had been exacerbated by the devastation of the air raids. The country, “our country”, was bankrupt.

It is against that background that the present condition of the NHS should be considered. It faces new problems and challenges, of course, but its condition cannot be described as critical, still less insupportable, considering that we have recently managed to meet the costs of two long-drawn-out wars (supported by both major political parties), and the bail-out of irresponsible bankers – all money down the drain.

By contrast, the relatively small amounts needed to maintain and develop the NHS have beneficial effects, now as in the past, not just on the nation’s health, but on its prosperity, as the post-war experience shows. The NHS creates employment and expertise in many fields as well as health. It increases the disposable income of the general population by removing the burden of personally financed health care. (c.f. The USA). A healthier, longer-lived population is almost the least of the benefits of the NHS. We cannot afford to waver in our commitment to universal health care – publicly funded and provided.

Tackling Changing Health Issues In A Changing World

 Our values haven’t changed, but our world has”. The two cannot be separated. Our values have changed, not in relation to the almost universally beloved NHS, but in response to changes in the world. The new challenges of longer life have still to be fully addressed at all levels. As for health problems “of our own making”, once problems reach the proportions cited in this report (60% of adults are overweight or obese, 30% misuse alcohol, 20% still smoke) they can no longer be seen solely as personal, but as public issues. (C. Wright Mills).

 It is beyond the remit of the NHS to deal with such complexity: it derives from the unchallenged pressures and persuasions of a commercialism and consumerism so insidious and pervasive that they fail to attract the critical analysis and counter measures that are needed even in relation to life-threatening issues like obesity and alcohol misuse.

The Stevens Report perpetuates this myopia. It is the business of government to deal with this situation, not the NHS. Some may say that this sounds like a ‘Nanny State’ approach. In fact such measures would attack the infantilisation of everyone (by mass advertising and the mass media) which is breaking the back of the NHS. The propaganda lessons of the Second World War need to be redeployed in improving national health. Clever merchandising skills cannot be left solely in the hands of those selling us stuff that does us no good, simply for profit

The task is too huge and important to be left to cash-strapped Local Government, elected mayors and an overburdened NHS: it is a major national issue for Central Government. If the NHS is to be able to cope with the challenges of longer life expectancy, a benefit for nearly all of us, the adult population needs to be enabled to behave like adults: the commercial interests profiting from unhealthy life-styles can only be challenged effectively by Central Government. It is now the case that local authorities have a statutory responsibility for improving health, but it is responsibility without power, the reverse of the case with the media.

As in the 19th century, preventive health measures are more important than medicine in improving the nation’s health; then it was sewage and water supply; now it is tackling the problem of over-consumption: problems of affluence not effluence : just as damaging.

The NHS – A healthy workforce promoting public health?

 The NHS is urged in the report to improve public health by promoting health in its workforce and making itself an exemplary employer. As well as setting a standard for all employers, it suggests that sickness absence would be reduced saving a great deal of money. But the report overlooks the unhealthy effects of long working hours and excessive shift work that are the result of 20,000 unfilled vacancies in the NHS. These cannot be unrelated to deteriorating pay and conditions of work as a result of pay freezes and cut-backs.  These government created conditions do not help to make the NHS an exemplary healthy employer. Better food on night duty etc. cannot solve the problem.

Parallel to this, while emphasising the central role of the care sector in future health care, the report ignores the plight of care workers in the private sector on less than the minimum wage (150,000 according to King’s College Care Workforce Research Unit) dependent on food banks for a healthy diet, while 370,000 are on zero hours contracts in the name of ‘productivity’. (Norman Lamb, Care Minister). But has anyone ever met a ‘hard up’ private care home owner or shareholder? The report does not consider these issues in urging a better integrated Health and Social Care system.

Funding Issues And Organisational Change

 The five year forward plan betrays the same lack of incisiveness (even blandness) throughout: an evasion of the nub of the problems the NHS is valiantly facing.

While generously recognising the successes it has achieved against the odds (e.g. quoting improved cancer and heart disease outcomes; the Commonwealth Fund Report’s endorsement), the Stevens report fails to make explicit some of the main causes of the major funding challenges confronting it, e.g. the extortionate costs of the Private Finance Initiative (PFI), the implementation of the 2012 Health & Social Care Act and competitive tendering, still less to consider ways of dealing with those problems. The longer standing administrative costs of operating the ‘internal market’ within the NHS (the 1992 purchaser/provider split) are similarly ignored.

An issue nowhere addressed in recent reports, including this one, is the costs the NHS has incurred as a result of out-sourcing ancillary services, the first wave of privatisation dating back to the 1980s. In every area of Britain, there are people who have made private fortunes delivering services that were previously in-house (cleaning, supplies etc. etc.). It is arguable that causal links can be made between that process and infection in hospitals. Agency nursing is another hugely costly means of dealing with staffing shortages related to erosion of pay and conditions for full-time nursing staff.

These key financial drains are ignored. They make an enormous contribution to the financial predicament of the NHS, and they mark only the tip of the iceberg of the costs of more recent privatisation.

The 2012 Health and Social Care Act has unleashed unprecedented, hugely expensive, unnecessary and unpopular changes on our comprehensive and publicly funded NHS. This was done by a coalition government after the dominant partner had promised no top-down reorganisation in its election manifesto; the junior partner had pledged commitment to the public NHS and its Party Conference voted against the Health and Social Care Act weeks before it colluded in passing that Act. No one outside Parliament voted for that legislation; It was an attack on democracy itself. The results go unmentioned in this Report.

Health care, correctly delivered, is not and never can be a commercial undertaking. All diversion of tax funded resources (e.g. into profits, dividends, bonuses, etc) represents treatment denied and is directly harmful to patients and injurious to the common good. Recognition of this is the basis of public support for the NHS.

While omitting mention of all these issues and developments, calculations of billions of pounds are bandied about in this report, figures plucked from the air with no firm link to reality. When the NHS was founded, the average wage was roughly £5 a week.  Inflation takes care of most debt. We can afford the NHS, especially if more effort were to be made to retrieve unpaid taxes – another factor omitted from this text. We spend the least on healthcare as a proportion of GDP of all G7 countries (as Stevens acknowledges) and have the second lowest number of hospital beds per capita in Europe. Ring-fencing a budget that doesn’t meet our needs is meaningless.

In Conclusion

Overall, the problem with this report is its failure to grasp the full social and economic significance of the NHS in all its complexity. The range of its activities is enormous: ‘from cradle to grave’ it attempts and largely succeeds in meeting the health needs of a large, complex, rapidly changing, post-industrial society as it invents and responds to new technology and evolving culture and life-styles. Depth analysis should encompass finance and economics, cultural factors, and management, especially of change and cross-boundary working, logistics ….the list is endless. Miraculously, the NHS deals with all these factors and it WORKS.

 The 5 year plan is unconvincing because it skims the surface of the issues it does address, and fails to raise the core questions. Perhaps the omissions are unsurprising, given Steven’s roles in the private sector over the previous two decades.

The structure of the NHS prior to the Coalition Government’s Health and Social Care Act:

NHS structure 2011

Following the changes it now looks something like the diagram below ~ in the words of David Hunter, Professor of Health Policy and Management at Durham University (to whom we are grateful for the use of these slides) – “a complete dog’s breakfast, as the NHS performed well already, the changes increased bureaucracy and the case for competition, which the coalition increased, remains unproven”.

NHS Structure 2012

The Way Forward – An Alternative View

The NHS is now becoming a key election issue as the public begin to realize what is at stake, and the media can no longer afford to turn the other way. Cameron has been forced to say he did not understand the Lansley Bill and its implications. A look at the second diagram explains his incomprehension.

Direct assault on the NHS has always been politically impossible – better by far to introduce ‘reforms’ that sound as if they are rising to the challenge (even if the Prime Minister himself doesn’t understand them). Few will be taken in by Steven’s representation as the saviour of the NHS. Contrary to his assertion, experience with adult social care suggests that further contracting out of NHS services is likely to see exponential growth, unless stopped by the electorate. We must repeal the Health and Social Care Act, increase NHS funding to meet the growing need for health care, stop unsafe closure of services to save money, renegotiate crippling PFI debts and give a fair deal to NHS workers. If Simon Stevens’ heart is in the public sector can we hear him pledge support to these objectives?

Concrete Proposals

Whatever the legislative strategy of the incoming government after the 2015 General Election, its first goal must be to address the worst excesses of the 2012 Act: This can be done without reconfiguring the whole of the new system (a process that would be eye-wateringly expensive, utterly demoralising for NHS staff and damaging for patients).

The following points are the simplest and most easily accomplished measures that will ensure the survival of the NHS as a publicly provided service:

  1. Responsibility for health care should revert to the Secretary of State.
  1. The 2013 regulations which restored the pressure on CCGs (rejected during the passage of the Bill) to put services out to tender should be cancelled. (Any Qualified Provider).
  1. The power and centrality of Monitor should be curtailed.
  1. GPs with private, commercial health company interests should be ineligible for membership of CCGs (or anything that replaces CCGs)
  1. The private, commercial health company interests of MPs and Peers should be publicised.
  1. The clause allowing NHS hospitals to raise up to 49% of their income from private care should be revoked and replaced by the previous arrangement.
  1. The impending US/EU Trade Agreement, the Transatlantic Trade and Investment Partnership (TTIP), should, at the very least, exempt Health Care from its measures (as is the case in Canada).
  1. Private Finance Initiatives (PFIs) should be swiftly renegotiated and measures adopted to reduce the excessive NHS debt that has resulted from them

These suggestions would restore the essential nature of the NHS, and give a breathing space where longer term reforms could be allowed to develop in full consultation with service providers and users.

The interest and concern that has been generated by the present government’s destructive policies can be harnessed to inform genuine public debate about the future of the NHS, involving lay and professional opinion, a process which could re-invigorate democracy itself.

The NHS is the crowning achievement of British democracy, along with the defeat of Fascism. We must not now let it fall into the hands of anything-but-democratic multinational corporations.

 Defend our NHS York and Leeds Keep Our NHS Public

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From the New Statesman..
It emerged this morning that Labour MPs took the extraordinary step of blocking the publication of the Health Select Committee report into the NHS – because the conclusions backed up government reforms. I have just been handed details of this report, and it’s clear why Labour wanted it suppressed: it contradicts the party’s attack message. Here are the main points:

No sweeping privatisations: there has been little increase in private sector providers since 2010.
Nor has there been an extension of charges or top-ups during the current parliament, and that these are not planned.
Less red tape: a general trend of declining administration costs in the NHS.
No evidence that the Transatlantic Trade and Investment Partnership poses a threat to the NHS.
http://tinyurl.com/paamey4

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The Socialist Health Association was amongst the first to come out and resolutely oppose the Equity and Excellence Liberation nonsense that eventually became the Health & Social Care Act.  At the start of the long fight to oppose the Bill only a minority actively opposed it, led by Labour and the major trade unions; far too many who should have known better gave the Bill a muted welcome.

The SHA was clear in its analysis that the aim of the Bill was to start the move of the NHS onto a regulated market basis following the path set by the Tories in respect of the utilities. Over time it would have ended the NHS as we know it. It was designed to favour greater entry of private providers in all parts: provision, and commissioning and back office support.  It made market competition (initially on price, which was dropped) the driving force for change in the NHS.  For the first time it brought compulsory competitive tendering for clinical services. The Bill’s apologists openly boasted that it removed political control over the NHS just as it removed accountability and direction.

Most never believed the private sector would take over all, or even most, of NHS services but they could have been allowed to cherry pick the ‘profitable’ bits. They were expected to extend their entry into primary and community care and that has happened.

It was a long fight and there were two opportunities to kill the Bill.  If the GPs had clearly stated they wanted no part of it (they did not want to be commissioners) the Bill was doomed – but the GPs did not say that and GP based organisations were amongst the supporters. Then much later on once some of the flaws became blindingly obvious the collective voice of the Royal Colleges could have fatally wounded the Bill – but after much prevarication the great and the good of the professions found they did not have strong enough objections.

So we got the Act and, as the Kings Fund and others point out. we got an expensive and unnecessary reorganisation.

The NHS in 2010 needed direction and a period of stability to try to deal with austerity as best it could.  Social care was in a mess.  What was needed was reform and investment in social care and a strong policy direction towards integration.  We got a bigger integrated mess.

Arguments that the Act reduced management costs and improved quality don’t stand up to any serious analysis.  Similarly claims that the private sector is poised to take over all services are still also untrue.

So where now?

Well perhaps the last thing we need is another top down imposed reorganisation.  We also have to stop thinking of the NHS as somehow outside the rest of the public services, outside any democratic control with its own unique structures.  And we have to genuinely start to accept patients and communities as assets.

So that does not mean no change, it means changes take place locally at different rates looking at the whole system not just the NHS.  It means bringing planning of services under democratic control and firmly within the family of public services.  It means allowing changes to take place without external interference from competition rules or regulations.  It means integration in all its meanings.  It means personalisation of services in all its meanings. It needs new solutions not a return to some mythically golden era.

The Ten Year Plan announced by Labour moves in the right direction but until the funding issues are resolved it may be too ambitious even for a ten year horizon.

Having won the battle of ideas and relegated competition and markets into a more sensible place the new big arguments are about making social care far more effective, making whole person care a reality and finding ways to bring stable funding.

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The National Health Service remains the envy of the world and is a touchstone issue in British politics. It has been subject to considerable reform by both Labour and Conservative governments since the 19905.

The present arrangements for the delivery of state-funded health­care services in the UK are of bewildering legal complexity, matched only by the complexity of the management structures of the NHS. The British public has a steadfast commitment to the NHS, and any changes to NHS services have the potential to become politically con­tentious. However there is a widespread lack of understanding about how the NHS is managed and how it actually functions. In marked contrast, changes to state-provided social care services do not have anything like the political impact of changes to NHS services. Social care services are largely administered by local authorities whose budgets have been radically cut by the present government without any sustained political challenge. However, the successful delivery of health services is dependent on the successful delivery of social care services, and vice versa.

There are however a number of key differences between health and social care services, notably that the NHS is largely free for patients at the point of use, whereas social care services are (and have always been) means tested, with some service users meeting the full costs of their care.

Legal and policy framework

The law relating to the NHS is largely contained within a single con­solidated Act, now the National Health Service Act 2006. In contrast, social care law has been spread across a myriad of different statutes, including the National Assistance Act 1948 and the Chronically Sick and Disabled Persons Act 1970, all of which get regularly amended by new legislation. The Law Commission produced a report criticising the complexity of adult social care legislation in 2011 and proposed a consolidated Bill. The present government introduced the Care Bill in May 2013, which became the Care Act 2014 in May 2014 but will come into effect when an order is made by the Secretary of State. Once implemented there will be a single Act of Parliament for care services to complement the National Health Service Act 2006.

It remains to be seen whether a single Care Act will make any sig­nificant difference to users of social care services. However, a single statute should make the job of those advising social care users (who are very often not lawyers) more straightforward.

The future of the NHS is the subject of academic departments, policy commissions, endless consultations and vast media comment. NHS controversies have led to politicians losing their parliamentary seats, and those who oppose any set of local or national changes to NHS services can be relied upon to predict the worst and wave shrouds to support their case. The NHS is, as the former Conservative Chancellor, Nigel Lawson said, ‘the closest thing the English have to a religion’. A politician therefore meddles with the NHS at his or her peril.

The Conservative MP Andrew Lansley spent years in opposition thinking about the NHS and finally got his hands on the ministerial red boxes when he was appointed Secretary of State for Health in May 2010. Within a few short weeks he had published his vision for the future of the NHS in a White Paper called Equity and Excel­lence: Liberating the NHS, which very largely built on the speeches he had made in opposition. That led to the Health and Social Care Act 2012, which was one of the most complex Bills ever presented to Parliament. It eventually got through the parliamentary process after a tortuous passage (including the famous Spring 2011 ‘pause’ to facilitate a ‘listening exercise’). Despite the complexity of the 2012 Act the vast majority of the changes it introduced to the NHS could have been introduced without legislation. The net result of the political fallout was that Andrew Lansley lost his job as Secretary of State for Health soon after the Bill was passed, even though he said it was the only job in government that he wanted. The new Health Secretary is Jeremy Hunt who is largely carrying on the reforms of his predecessor.

However, political shortcomings in the Lansley vision of a ‘Bank of England’ type of NHS, largely run by NHS England and free of political control, have become increasingly clear. In June 2014, junior Health Minister Jane Ellison complained that the NHS was largely ‘out of control’ of ministers, without apparently realising that this was the policy of the former Secretary of State. The 2012 Act provided that ministers remain politically accountable for the NHS, but largely removed their means of control. Ministers were thus left politically accountable for a government service that they had little if any formal means of controlling.

A list of problems

There are a series of problems with the NHS that an incoming Labour government will have to accept. The first is that those who supply the services are trusted far more than those who manage the service. It is thus a sector where ‘provider interests’ have far more weight than almost anywhere else, apart perhaps from the military. The BMA, the Royal Colleges and the staff trade unions all have tremendous policy influence, and are not afraid to use their voices to object to change that will adversely affect their members. The strapline of the BMA is ‘Standing up for Doctors’, but it is highly effective in presenting the interests of doctors as being coterminous with the interests of the patients, and thus gaining public support for its positions. Having said that, the professionalism and commitment of the doctors, nurses and NHS managers is a resource that any Secretary of State underesti­mates at his or her peril.

Second, after the Health and Social Care Act 2012 is implemented, the legal and management structures within the NHS are wholly unclear to the public as well as to most of those working within the system. Lord Darzi, a hugely respected surgeon and former Labour Health Minister commented in a House of Lords debate as follows concerning the Lansley reforms:

We now have health and wellbeing boards, clinical commissioning groups, clinical senates, local healthwatches, the NHS commissioning board, a quality regulator and an economic regulator …At the end of the day, who is responsible for making sure that the NHS saves more lives this year than last? Who is accountable for how its budget is spent? Who will inspire NHS staff to lead the difficult changes?

Working out who is really responsible for performance in the NHS has never been straightforward and is perhaps even more difficult today than ever before.

The third problem is that many of the complaints made about the marketisation impacts of the 2012 Act failed to appreciate how far a Labour government had already taken the NHS down that path. Lansley was anxious to present his reforms as being a radical depar­ture from Labour policy, while Labour politicians, free from office, were free to complain about privatisation of the NHS by stealth. Simon Stephens, a former Health adviser to Tony Blair and now the Chief Executive of NHS England saw things differently in July 2010 when he said, ‘what makes the coalition’s proposal so radical is not that they tear up that earlier plan [the NHS plans of the Labour gov­ernment]. It is that they move decisively towards fulfilling it’ . Labour complained about the competition aspects included in Part 3 of the 2012 Act but, unless fundamental changes are made to the structure of the NHS, most of the legal obligations that brought the EU procure­ment and competition regimes into the NHS were already present. EU competition and procurement law was already having an impact on the NHS before the coalition government took office because of decisions made to create legal separation between commissioners and providers. The duties of transparency, equal treatment and non-dis­crimination in Part 1 of the Public Contract Regulations 2006 applied to the placing of NHS contracts long before 2010, and thus a disap­pointed contractor already had the right to sue an NHS commissioner for breach of procurement law duties. Part 3 of the 2012 Act increased the focus on procurement and competition for NHS bodies but, given the structures set up by the Labour government, it probably made little practical difference to legal obligations in this area.

Fourth, the NHS that an incoming Labour government will manage needs to serve an ageing population where demand for NHS services will substantially increase each year by maybe 4 per cent. The Royal College of Physicians reported recently that:

The number of general and acute beds has decreased by a third in the past 25 years, yet during the past 10 years there has been a 37 per cent increase in emergency hospital admissions and a 65 per cent increase in secondary care episodes for those over 75 in the same period (compared with a 31 per cent increase for those aged 15-59).

A 2012 parliamentary select committee report also noted the need to change services and reported:

The National Health Service will have to transform to deal with very large increases in demand for and costs of health and social care. Overall, the quality of healthcare for older people is not good enough now, and older people should be concerned about the quality of care that they may receive in the near future. England has an inappropriate model of health and social care to cope with a changing pattern of ill health from an ageing population. Further fundamental reform to the NHS in the next few years would be undesirable, but radical changes to the way that health and social care is delivered are needed to provide appropriate care for the population overall and particularly for older people, and to address future demand.

It is unclear whether the present government has a coherent plan to manage this increase in activity and equally unclear how an incoming Labour government would do so.

A fifth problem is that, as medical science develops, the treat­ments doctors can offer that may benefit patients increase each year.

The pharmaceutical industry is a great British success story but each development of new drugs creates a demand for funding for a defined cohort of patients from an already cash limited budget. With every new wonder drug the need increases for robust systems within the NHS to decide what treatments do and do not deliver both clinically effective and cost-effective treatment. An interesting observation on this issue emerged in an NHS rationing legal case where the chief executive of the local primary care trust (PCT) explained the problem as follows:

Doctors have a duty of care to their patients and thus press for the best possible care for each and every patient they are treating. The treating consultants are generally not concerned with issues of overall cost effectiveness. Their role is to press for the best treatment for their patient. Where such treatment is not routinely commissioned by a PCT, the consultant is not able to provide the treatment as part of NHS care unless an exception is made for the patient. The role of the consultant in such cases is to write letters and reports to seek to persuade the PCT to fund the treatment for patients … This means that we need to consider carefully the costs of different treatments and the benefits that a treatment delivers before we plan to commission it. For the PCT, the decision to commission a particular kind of treatment is not just a question of whether a medical treatment is clinically effective: if a treatment is not clinically effective we would not commission it. However, if a treatment is clinically effective, the PCT needs to judge whether the treatment is a cost effective use of the limited resources available to it. As the PCT has a fully committed and limited budget, the duty to break even means that if we commission additional services we need to pay for this by disinvestment from other services … PCTs can only spend money frotft taxpayers once.”

NHS policy makers often underestimate the problems caused by the entirely legitimate differences between the perspectives of treat­ing doctors and those of NHS commissioners. These two groups are using the same resources but, as the above quotation explains, they approach the issues of resource allocation in very different ways.

The way forward for NHS policy under Labour

Against this background one political reality is crystal clear – there are no votes in changing the ‘wiring’ of the NHS. A major reform of the NHS structures is politically undeliverable and should be firmly rejected by an incoming Labour government. Andy Burnham, as Shadow Secretary of State for Health, may have promised to repeal the Health and Social Care Act 2012, but in reality this promise cannot extend further than repealing parts of Chapters 1 and 2 of Part 3 of the Act (concerning the role of Monitor and Competition). However, even that would leave a vacuum which, given the constraints of EU law operating in this field and the Public Contracts Regulations 2006, could not be left unfilled. The last thing that the NHS needs is another major structural reorganisation, and the public and the professions would not stand for it.

However, an incoming Labour Secretary of State may be obliged to recognise that the commissioner/provider divide in the NHS has been largely ineffective and, to date, has been a huge waste of public money. The division between those parts of the NHS that commis­sioned healthcare and those parts that delivered it was originally devised by former Secretary of State for Health, Ken Clarke, in his 1989 White Paper Working for Patients (and at that time called the purchaser/provider divide) in order to introduce some market mecha­nisms into a state monolith. But there is little evidence that commissioners (as the purchasers are now called) have acted like effective private sector purchasers and so ‘market’ mechanisms rarely if ever deliver the intended results.

The Health Select Committee came close to recommending the abolition of commissioning in its report of March 2010, The com­mittee concluded that commissioners tended to be ‘passive’ and added that they failed to justify their own existence. It said: ‘Weaknesses [in commissioning performance] are due in large part to PCTs’ lack of skills, notably poor analysis of data, lack of clinical knowledge and the poor quality of much PCT management. The situation has been made worse by the constant re-organisations and high turnover of staff.’

There was no evidence that GPs, trained to deliver services to individual patients, would be any better at commissioning popula­tion-based medicine than PCTs. Commissioning has been further undermined because a large number of staff with knowledge of NHS commissioning have left the NHS in recent years as part of the £2obn ‘Nicholson Challenge’ and, as a result, the support structures for the new Clinical Commissioning Groups (CCGs) have been left with fewer experienced staff. However, a King’s Fund report published in July 2013 was not wholly pessimistic. It observed:

Despite the early timing of our fieldwork, we found some evidence that CCGs were already having an impact on members’ clinical practice … The most commonly cited effect of CCGs was that peer-to-peer dialogue had heightened GPs’ awareness of their referral and prescribing patterns and how they compare with those of others. In most sites, at least some practices or localities reported that this had led to their succeeding in reducing their referral rates or prescribing costs. Others, however, reported that their clinical practice remained entirely unaffected so far.”

Making commissioning work for the benefit of patients and the taxpayers is perhaps the most serious challenge in answering the Lord Darzi question about who is really responsible in the NHS. The right answer is the commissioners should be responsible and have all the tools and levers to use to make change happen. But if ditch­ing commissioning is off the agenda for an incoming Labour govern­ment (because it would involve a major change to the NHS ‘wiring’), the only alternative for a Labour Secretary of State for Health is to invest in NHS staff and support structures to make commissioning work as effectively as possible. That means reversing the present ‘clinicians good, managers bad’ rhetoric and recognising that something as complex as the NHS cannot work effectively without high-quality and effective managers in both commissioning and providing organisations.

Tools available to a Labour government to change NHS policy

Perhaps the single biggest problem that an incoming Secretary of State will inherit is a lack of legal ‘levers’ to pull to make changes happen. Under the National Health Service Act 2006 all NHS bodies other than GPs and NHS Foundation Trusts were required to follow ‘directions’ made by the Secretary of State. GPs were excluded because they were independent contractors and NHS Foundation Trusts were excluded from the Secretary of State’s direction-making powers in order to give them independence. However the Secretary of State was able to issue directions to all NHS commissioners who could, in turn, use their contractual powers to effect necessary change. The direction-making powers of the Secretary of State have virtually disappeared as a result of the Health and Social Care Act 2012. The Secretary of State does not now even have a clear power to issue directions to the NHS Commissioning Board (also known as NHS England) and in turn NHS England only has very limited direction-making powers in respect of CCGs.

There are ways of influencing the actions of NHS England and, through NHS England, other NHS bodies. The days of instructions coming from Richmond House with the force of law are over. In fact, however, little if anything has changed, and edicts from ministers remain part of the NHS. As political realities emerged, the naivety of a ‘Bank of England’ style NHS became clear. Ministers have thus reasserted political control and are acting as if they remained in charge. At present, however, they have no legal right to do so. At some point the power of persuasion may not be enough, as NHS bodies assert the legal freedoms they were given under the 2012 Act. At that point, ministers may be gently but firmly told to back off. There is an inherent contradiction between a legal Bank of England style NHS and ministers being politically accountable for an NHS they cannot control. It is an issue that will need to be resolved.

An agenda for reform

So what are the major legal issues that an incoming Secretary of State might wish to consider? I would suggest that they should include the following.

Restoring the Secretary of State’s direction-making powers

There are three reasons why an incoming Labour government should rapidly change the law to restore (or create for the first time) the Sec­retary of State’s power to issue directions to NHS England, and in turn to give NHS England the power to issue directions to any public (or private) body delivering NHS services:

  1. The Secretary of State is accountable to Parliament for the deliv­ery of NHS services. That accountability is meaningless without giving the Secretary of State the power to intervene if those charged with the day-to-day delivery of the services fail NHS patients.
  2. The resumption of NHS direction-making powers will make it clear that the NHS is a national health service directable by a single Secretary of State, and not a joined up collection of local health services.
  3. NHS direction-making powers will make it clear that the Secre­tary of State retains a measure of control over all NHS services, and thus will allow the NHS to remain outside of the regime for
    EU procurement law. It will help bring the NHS back within the Teckal exemption (which avoids the need for procurement exer­cises when services are commissioned from public bodies under a common system of control by the purchaser).

The Secretary of State imposing his will by making directions is, of course, a last resort. The existence of the power usually means that it does not have to be used. However, now that NHS England has been created as a stand-alone board for the NHS, it makes far more sense to channel a direction-making power through NHS England (with the Secretary of State directing NHS England and NHS England then directing individual NHS bodies) rather than have the Secretary of State directing individual NHS bodies.

Making NHS contracts the norm

An incoming Secretary of State should change the law to insist that all arrangements between NHS commissioners and providers for the delivery of services to NHS patients must be set up as ‘NHS con­tracts’ and not as legally binding contracts. This may appear to be a minor technical change but it will save substantial legal costs and reduce the scope for providers to miss the big picture when delivering NHS services. Partners who work together under an NHS contract are far more likely to work cooperatively to deliver integrated services for patients as opposed to those who are worried about protecting their own position by attempting to assert their legal rights. It will also assist in ensuring that EU procurement law obligations stay out of the NHS to the greatest extent possible.

Creating legal structures that can take binding decisions on NHS acute service reconfigurations against a fixed timetable

The NHS has some of the finest hospitals in the world, and the Labour government from 1997 to 2010 had a proud record of building new hospitals. But the time has come for the NHS to focus care for fewer patients in fewer hospitals and to deliver far more healthcare in the community. That requires NHS hospital reorganisations, but these have been plagued with both political and legal controversy, in part because of a lack of clear structures that define how such decisions should be taken, by whom and against what timetable.

For example, an attempt to reduce the number of centres at which children’s heart surgery should be delivered suffered setbacks as a result of two judicial reviews that challenged the lawfulness of the complex process adopted by the NHS to resolve this problem. That process has now been effectively abandoned, even though there was a wide medical professional consensus that reducing the number of centres would save the lives of sick children. That consensus did not, of course, extend to which centres should be removed from the list. The NHS will not be able to deliver more services for an ageing popu­lation in the community unless robust action is taken to reduce invest­ment in secondary care, which inevitably means fewer and larger hospitals. Four key points about these issues should be noted:

  1. Although politicians are neither qualified nor politically able to take decisions about the downgrading of individual A&E or mater­nity services, Labour politicians must be wary of supporting every local service in the run-up to the 2015 election. This was the Con­servative approach in the period leading up to 2010 – supporting every local unit under threat of change. This approach resulted in the ludicrously vague and unworkable ‘four tests’ policy intro­duced in May 2010. This approach makes it extremely difficult to take lawful decisions to make changes to a local health economy because every set of local GP commissioners effectively has a veto to stop change in local services. The only responsible approach by politicians is to make the case for change and to emphasise that decisions about the most clinically effective arrangements for local health services must, at least in the first instance, be for medical and managerial professionals. It may be too much to ask the public to accept that the NHS should be focused on healthcare services and not institutions, but opposing every NHS reconfigura­tion is a political cul-de-sac.
  2. Decisions about configuration of local NHS services must involve multiple CCG areas in order to be effective. The NHS Act 2006 does not recognise the term ‘NHS local economy’ but decision making on configuration of local NHS services is rarely effective if confined to a single CCG area. Thus new legal structures needed to take these decisions must treat the local NHS commissioners as participants and consultees, but ultimately cannot give a veto to each individual CCG.
  3. Reconfigurations of NHS services are afflicted by timidity, delay and uncertainty. The legal structures an incoming Secretary of State should create for taking these decisions should therefore allow NHS England to initiate the process rather than waiting for the local NHS politics to be sufficiently acute to allow a change programme to be examined, provide for clear timetables, and allow (as now) for expert advice and validation to any change plans, but then require swift implementation.
  4. The role of the Secretary of State for Health as the appellate body for the final decision (on referral from the local authority committee) may need to be reconsidered. Is it a proper use of the Secretary of State’s time to take a decision about the future of a local A&E unit and/or does it unnecessarily ‘politicise’ the process? Or is a final appeal to the Secretary of State a feature of his or her political accountability for NHS services? There are fine arguments both ways but there is a compelling argument that any appellate decision by the Secretary of State or an appellate body should be taken within a short time period (of say three months).

Investing properly in NHS commissioning

Doctors and other medical professionals work with skill and dedica­tion to treat their patients. But without effective commissioners the NHS does not know whether the treatments being provided are either clinically effective or cost-effective, or whether doctors are pursuing a course of treatment which is neither. The only justification for the commissioner/provider divide is that NHS commissioners are able effectively to represent both the patient (but to be more informed than many patients) and the taxpayer to ensure that all NHS care is being delivered in a way that is both clinically effective and cost-effective. But there is precious little evidence that this is happening or has ever happened. The ‘world class commissioning’ programme aimed to achieve this and was widely welcomed, although it was discontinued by the present government before reaching its potential and, of course, many if not most of those who were part of the programme are no longer working in the NHS. In March 2010 the House of Commons Health Select Committee observed:

The key question is whether WCC [world class commissioning] will be enough to address the enduring weakness of commissioning. Although WCC seeks to bring about a ‘step change ‘in the capacity and capability of PCTs to act as effective commissioners, some witnesses thought that the enduring weakness of commissioning was unlikely to be addressed by WCC alone.

The answer from the Committee to that question was that WCC was not sufficient, of itself, but it was part of the answer in developing an NHS that commissions care in an effective manner. A new Secre­tary of State should explicitly recognise that effective commissioning is a difficult, technical process that requires attention to detail and the confidence to confront clinicians. The present structures deliver greater clinical involvement in commissioning and it is possible that this will deliver more effective commissioning. But that will only become a reality if both GPs and secondary care consultants recog­nise and respect the role of commissioners, which in turn needs an enhanced role and status for commissioners. The NHS thus needs politicians who abandon the lazy rhetoric of ‘manager bashing’. A key role for the new Secretary of State will be to promote the role of those who speak up on behalf of patients and the taxpayers in the NHS system – namely the commissioners. Either that or to abandon the whole commissioner/provider divide as a waste of time and money.

Tackling postcode prescribing

The NHS has never given patients a legal right to the same level of medical treatment anywhere in the country. Decisions about what medical treatment a patient is entitled to as part of NHS funded healthcare are decisions of local NHS units, with patients being subjected to ‘postcode prescribing’. Variation between policies of different NHS commissioners is thus both lawful and inevitable. Thus a patient who is registered with a GP in Stoke can be entitled to a life-saving bariatric surgery operation with a threshold body mass index of 35, whereas patients would lawfully require a BMI of 50 in neighbouring North Staffordshire. The creation of the National Institute for Health and Clinical Excellence (NICE) was designed to inch the NHS in the direction of a national service as a result of directions made in 2003 which required PCTs to fund treatments recommended in NICE Tech­nology Appraisal Guidance. However, only a tiny number of treat­ments have been taken through the laborious NICE process. Even then, there are legitimate complaints that NICE decisions involve a process of decision making that is focused solely on the individual treatment in question and does not properly ask how that proposed investment fits into a scheme of local or national priority-setting.

There are two interconnected problems when attempting to tackle postcode prescribing. First, the NHS cannot afford to ‘level up’. Any expansion of mandatory treatment rights would inevitably result in local NHS commissioners being unable to afford other treatments that they currently fund, which would be presented as ‘cuts’. Second, a politician cannot ever be seen directly to take a ‘prioritisation’ decision because those who are denied any item of care will loudly cry foul in the media. The answer to this age-old problem may be for the Secretary of State to set a much more detailed framework and to influence NHS England (via the Mandate if needed) to impose much greater standardisation of commissioning policies across CCGs, thus reducing the more glaring disparities. However, in the end difficult decisions on which treatments are to be made available to which patient groups face formidable difficulties if they fall to be taken by anyone who directly faces election by the public.

Joining up healthcare and social care

The Shadow Secretary of State for Health, Andy Burnham, is presently discussing the most effective way to join up health and social care so that, particularly for the elderly, it becomes about care services and not whether these are health or social care services. There are obvi­ously difficult issues about funding such a service and worries about meeting the cost of the increased demand that such a service change would trigger. However if an incoming Secretary of State was minded to expand the social care services that could be provided free at the point of use, there is an established mechanism that could be used to bring this about without the need for primary legislation. Section 3(1)(e) of the NHS Act 2006 provides that CCGs must provide such ‘other services’ as part of the NHS as the group considers are ‘appropriate as part of the health service’. This is the power that is used by the NHS to fund social care and accommodation costs of patients who are eligible for NHS Continuing Care. The process that CCGs are required to follow to decide whether a person is eligible for social care (as part of NHS funded care therefore free at the point of use) is set out in regulations, which currently require CCGs to follow the National Frame­work for NHS Continuing Care in making decisions as to where the health/social care boundary lies. This boundary is crucial for patients as it defines the boundary between services that are provided free of charge and those that are provided on a means-tested basis. However, if a future Labour Secretary of State wished to expand the areas of social care that were to be provided without charge, this appears to be the most appropriate mechanism to do so. Adding care services which can be delivered under section 3(1)(e) to include a greater level of social care (and thus making them free at the point of use) would deliver on a joined-up service without major structural reorganisation.

Becoming Secretary of State for Health in a Labour government is both the best and the worst job in government. It is the best because the NHS is so close to the heart of the Labour Party, and is the worst job for the same reason. The above are a series of practical steps that an incoming Labour government could take to regain control over the NHS, restore it as a politically accountable public service and to stop the slide towards the NHS becoming a state-funded healthcare insurance system.

Summary of principal recommendations

  • To restore the Secretary of State’s power to issue directions to NHS England, and in turn to give NHS England the power to issue directions to any public (or private) body delivering NHS services.
  • To change the law so that all arrangements between NHS commissioners and providers for the delivery of services to NHS patients are set up as ‘NHS contracts’ and not as legally binding contracts.
  • To create legal structures that can take binding decisions on NHS acute service reconfigurations against a fixed timetable.
  • To invest properly in NHS commissioning.
  • To tackle postcode prescribing.
  • To join up healthcare and social care by, in the first instance, expanding the ‘other services’ that can be commissioned under s. 3 of the NHS Act.

This article first appeared in Law Reform 2015, published by the Society of Labour Lawyers, and is reproduced by kind permission of the author.

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