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    The focus of the first article in this series was on Centene’s current – and anticipated – role within NHS England’s Integrated Care Systems (ICSs) programme. While brief mention was made of the corporation’s background, this article will examine it more fully, notably as the market leader within US Medicaid Managed Care (MMC), the private sector administration of state services for the poor, pregnant women, elderly adults and people with disabilities. It also provides care for 1 in every 3 children. Given the increasingly evident parallels between ICSs and MMC, it is worth looking at what the English public can expect, notably as most investigations into the MMC market reveal a system plumbing new depths of corrupt and exploitative behaviour.


    As discussed in the previous article, in 2015 Centene was invited by NHSE and Nottingham healthcare leaders to design its ICS. In order to offset privatization fears the corporation was presented to the public as a tech expert offering data analysis to help integrate services, but in internal documents this was expanded upon. According to Dr Stephen Shortt, the Nottingham ICS lead, it was a journey into unknown territory and “to give us the best chance of success we had to work with people who have real life experience of doing this on a scale and at a pace that hasn’t been achieved in England before”. Centene, as the “largest and best-in-class US Medicaid Managed Care company” was seen as the ideal partner.

    The first part of this statement is indisputable. Indeed, the corporation’s growth has been remarkable and built almost entirely on managing public programmes, particularly Medicaid. While the Affordable Care Act (ACA) of 2010 greatly expanded the number of people eligible for receipt of these services, almost all were channelled to MMC-owned plans which claimed they could save money by removing service duplication and unnecessary use of hospital provision as well as an emphasis on prevention, IT and integration of services. Since the ACA Centene’s revenues have grown enormously from $5.2bn in 2011 to $111bn by the end of 2020 with the last figure itself representing a near 50% leap from the previous year, largely owing to the purchase of a leading competitor, WellCare. As Centene’s CEO, Michael Neidorff, himself the highest paid healthcare executive in the US with annual compensation of $26m, told Forbes magazine, “we have an insatiable appetite” for further mergers and acquisitions.


    But how are such figures achieved? According to the LA Times, Medicaid “is rarely associated with getting rich. The patients are poor, the budgets tight and payments to doctors often paltry”. However, the newspaper reported in November 2017 that MMC companies in California made $5.4bn in profits from 2014-16 and that in this period “a unit of Centene’s raked in $1.1bn profits”, prompting a health professor at the University of Southern California to say, “these profits are gigantic – wow”.

    A variety of interrelated mechanisms can be identified, including: (a) reducing the quality of care; (b) control of the regulatory environment, through for example, political lobbying, donations and the revolving door of state and corporate actors; (c) failure to comply with regulations; (d) reduced reimbursement rates to medical providers; (e) minimizing provider networks; (f) exclusionary contract language, and (g) reducing and/or denying care, particularly for the most expensive patients.

    In Centene’s case, the examples could fill a book.
    • In California, Medicaid companies made $5.4bn in profits from 2014-16. Notably 6 of the 12 worst performing health plans in the state were run by Centene, and 7 of its 10 regional health plans scored below average on quality. The company’s San Joaquin health plan ranked last at 31%; the highest performing Kaiser Permanente plan scored 92%.
    • In Kansas there have been multiple allegations of improperly denied claims, often with no explanation, as well as inconsistent and inaccurate payments to providers.
    • Patients who bought policies from Centene filed a federal lawsuit in Washington state claiming the company did not provide adequate access to doctors. It also said that many doctors will not accept patients covered by the corporation because of its refusal to pay legitimate claims. According to the lawsuit, Centene targets low-income customers who qualify for substantial government subsidies “while simultaneously providing coverage well below what is required by law and by its policies”.
    • In Mississippi and Ohio, the corporation gave large donations to the State governors. It is also now under investigation in both states for allegedly obscuring and overcharging Medicaid by millions of dollars in drug costs. The Ohio Attorney General said; “Corporate greed has led Centene and its wholly owned subsidiaries to fleece taxpayers out of millions”.
    • Also in Ohio, Centene was the subject of four increasingly larger individual noncompliance sanctions — each between $1 million to $4 million — for failure to meet minimum performance standards for four consecutive years beginning in 2013.
    • The company paid Kentucky $7.5 million to settle a breach of contract lawsuit alleging it wrongfully terminated its Medicaid agreement and which cost the state $28 million to $40 million. It also agreed to pay $4.5 million to settle a lawsuit alleging it had failed to pay nurses overtime in multiple states, including Illinois, Ohio and Missouri.
    • Iowa health officials withheld $44 million from Centene under the state’s privatized Medicaid programme, pointing to unresolved issues with payments to health providers as the corporation had not paid more than 100,000 claims that providers had submitted. The state’s action “was the first time Iowa’s Health Department has withheld payment to a Medicaid insurer”.
    • In Illinois, Centene’s subsidiary, IlliniCare, “slashed payments for medical equipment by as much as 50% in 2019, a move that critics said was making it difficult for people to obtain life-sustaining devices”.


    The most comprehensive, and the most damning, investigation into MMC was however carried out by reporters from the Dallas Morning News in Texas and published in a series of 8 articles beginning in June 2018 and entitled ‘Pain & Profit’.

    As could be expected, the conservative state had embraced the shift to private management, and by 2018 over 90% of the Medicaid population were enrolled in private plans offered by 5 major healthcare companies, including Cigna, UnitedHealth, and the largest, Superior Health Plan, owned by Centene. According to the News, the deal was that the companies “would save taxpayers millions while delivering better healthcare in exchange for a small profit”. However, the articles proved so unsettling that within days of publication the state’s Health Commission convened an emergency meeting – they normally meet once a year – to deliberate on the findings.

    These identified a revolving door of legislators and company personnel acting in concert to award contracts, rewrite medical assessment rules, frustrate appeals, reduce fines, and cover up often dangerously low levels of care. Of perhaps even more concern for the authorities was the fact that the companies were reducing or denying care to those most in need of expensive medication, medical equipment, and hours of nursing provision. Cutting such services offered the greatest opportunity for profit, and indeed the articles found that it was the sickest patients, especially medically fragile children, which brought in the most profit on a per patient basis to the companies, netting them more than $145 million in 2017.

    While other companies were mentioned in the series, Centene featured most prominently, both as the largest Medicaid insurer in the state but also owing to the scale of its malpractice. The articles also offered clear descriptions of the effect privatizing Medicaid had on individual patients and in both the following examples the patients came under Centene’s care.

    The first was of twin 1-year old foster children with severe disabilities and requiring round the clock care, particularly as one needed 2 to 7 tracheal suctions per hour. Centene said this level of care wasn’t medically necessary and changed the authorization for 2 nurses on a 24-hour shift to one nurse for both babies for only 12 hours. During a break in care one child pulled out his trach and was left brain damaged.

    Such reductions in the level of care can save the company as much as $500 per day, and the News reported a paediatric specialist who treats medically fragile children as saying, “I believe this particular managed care organization is putting children’s lives in danger to make a profit”.

    The second concerned a 38-year old quadriplegic who had been promised enough help to live at home. However, Centene would not provide the hydraulic lift necessary for movement to the shower and the bathroom, so she remained in bed, nor would it provide the special mattress to protect her skin from life-threatening bed sores. Then, the company reduced her care giver hours from 12 to 7: “alone for 17 hours a day, unable to move, in pain, the patient began to plan her suicide”. Centene was collecting “thousands of dollars a month to provide everything she needed to live at home, but she didn’t receive the equipment”.

    The articles subsequently won at least two national prizes for public service journalism. The Bingham Prize judges said they “were struck by the injustice of the offenses and the time taken to identify victims who otherwise would have remained hidden, voiceless and sacrificed for profit”, and one judge added; “I’m not ashamed to say I wept in anger and despair as I read about the challenges families and individuals faced to get the care they needed to live or, quite literally, to breathe”.


    It is worth spelling out. This is the corporation whose UK CEO has just become Boris Johnson’s health supremo and has designed at least two and perhaps several more of England’s regional-scale ICSs. It aims to incorporate itself as a for-profit, Managed Care insurer at the heart of these ICSs, administering public funds, negotiating with providers, and deciding which services will be available to patients. If it can save money by cutting or refusing care it will keep a sizeable amount of that money, and in order to do so it will cut as much care as it can. And if Texas, Iowa, Kentucky, or any of the other US states are anything to go by, it will be ruthless – irrespective of the client base.

    As Greg Dropkin points out, a contract notice following Centene’s design of the Nottingham ICS makes it clear that NHSE and local leaders knew that Clinical Commissioning Groups’ shelf life was limited and that there was a built-in place for an insurance middleman . As the notice says: “The implementation of the ICS will involve a variation to the contract and may involve the transfer of the contract to another Provider or the Care Integrator in the place of the CCG”. The word ‘may’ is disingenuous. A corporation of Centene’s size and ambition is not going to be content with a design role and it is no coincidence that CCGs are being disbanded as ICSs approach legal status.

    In 10 years, Centene’s revenues have grown from $5bn to over $110bn primarily by exploiting the most vulnerable groups in US society. It is now at the heart of the UK government and aims to redesign the English NHS. The threat of a takeover of a number of GP surgeries – while important – is very much of secondary concern.


    1. It is worth mentioning that 83% of poor children and 48% of people with disabilities are dependent on Medicaid for healthcare services.
    2. Nottingham West CCG, ‘Combined meeting of Nottingham West CCG Clinical Development Committee (CDC) and Practice Commissioning Group (PCG)’, 7 December 2017.
    3. Under the Affordable Care Act, Medicaid coverage was expanded to all individuals under age 65 with incomes up to 138% of the federal poverty level, subject to the States’ elections. The numbers covered grew from $380bn in 2009, to over $600bn in 2020, and is now the nation’s
      largest public health programme. The scale of private outsourcing, according to many commentators, approaches Pentagon levels.
    5. In 2010 this figure was $6.1m.
    7. Nearly one in five Americans, 74 million people, are on Medicaid. For states, it is the biggest source of federal funding and the second-largest budget item, behind education. In total, children comprise roughly half of Medicaid recipients. 35.7 million children were
      enrolled in either Medicaid or CHIP at the beginning of 2018. This means that one-third of American children are on Medicaid, and half of all births in the country are paid for by the program.
    9. Often called ‘rationing by inconvenience’ it means placing administrative barriers in the way of healthcare services: “that of slowing and controlling the use of services and payment for services by impeding, inconveniencing, and confusing providers and consumers alike”.
      See, for example:
    15. Ibid.
    18. The Dallas Morning News articles are unavailable in Europe. However, a very useful summary is offered by:
    19. See comments section in:

    The news that Sir Simon Stevens was standing down from his post as NHS England Chief Executive in July prompted some remarkable tributes from the Health Service Journal (HSJ), even by own standards. The editorial said that Stevens had managed to save the health service on no less than three occasions and has been the most important figure in NHS history since Aneurin Bevan. It also said that Stevens was “the greatest strategic health policy thinker of his generation”, and in this point at least the journal is accurate.

    Back in May 2004 the Guardian’s John Carvel asked with regard to Stevens: “Why does a bright young man who has probably had more influence on NHS policy over the past seven years than anyone else in Britain decide to quit the public service to work for a $28bn US healthcare corporation intent on aggressive expansion into a new NHS market”? Indeed, Carvel thought that “If he had gone back into NHS management, he could have been running the whole shooting match after two or three more moves”.

    At the time Steven’s move did appear odd as UnitedHealth’s – his new employer and the largest health insurer in the world – anticipated role within the NHS was thought to be marginal at best. It only ran two GP practices in Derbyshire and a case management programme for elderly people. But by 2007 Stevens’ former colleagues had given the green light to 14 companies, including United and other US insurers, to bid for potentially much bigger contracts from primary care trusts providing data analysis and research, giving PCTs a clearer idea of how to manage patients with chronic condition.

    However, as the Guardian pointed out, “their role may be bigger than that. Companies may also be invited in to act as middlemen, negotiating with hospitals on the trusts’ behalf to reduce costs, ushering in the prospect that some patients may find their care plan managed not by a doctor but by an American insurance company”.

    While this programme – the FESC – proved a little premature, it offers much of the key to Stevens’ strategy. Transnational capital was in the early stages of creating a global market in healthcare and adopting standardized organizational formats from which the greatest profit could be extracted. As this process was US-led, it was inevitable that its dominant and most profitable format, that of Managed Care, would be adopted as the guiding template, and Stevens’ move to Minneapolis was in part to familiarize himself more fully with the working of this system and with its leading participants.

    It was also, as became evident, to locate himself as a major player within this wider market creation, and to bring English healthcare into its framework.

    The focus of Stevens’ early work in the US was Managed Care’s applicability within public programmes, and in 2007 he became chief executive of Ovations, United’s division providing insurance packages for older patients, and which accounted for over 1/3 of its revenue. It also included Medicare Advantage, the private sector management of the state-funded programme for the over-sixties; a programme which had been heavily criticised for excessive administration costs, its evolution into a multibillion-dollar subsidy for private companies, as well as the insurer’s monopoly within certain states.

    Indeed, the scale of profiteering within Medicare Advantage, and within the US system in general, produced considerable clamour for reform. In 2007, Stevens told the Guardian, “For all its problems, there is often an ability in the States to innovate faster and really test new models of care. This is an exciting time in health reform in the US – there’s a real sense that there will be meaningful change here in the next few years”.

    But this was nonsense. Any sense of global market creation would be fatally undermined if Managed Care was to be replaced by single payer – a national system that would eradicate the need for insurers – on its home ground, and every effort was made to make sure this didn’t happen. Indeed, United, and Stevens himself, played significant roles not only in destroying single payer but ensuring that the position of the giant insurers was strengthened; in large achieved by taking greater control of Medicare, Medicaid and the new market exchanges, to the extent that within a few years these programmes had become the main artery of profits.

    With the home territory secured, United, and Stevens, began to apply themselves more fully to global market formation.

    In 2009 Stevens was also charged with managing United’s international operations, growth and M&A in 123 countries, including North America, Europe, and the Middle East. One of his first tasks was helping set up, in 2011, a high-level trade lobby group, the Alliance for Healthcare Competitiveness (AHC), which wanted “the Office of the US Trade Representative, acting through the World Trade Organisation, to force other nations to open up their national health systems to US for-profit insurers, hospitals, professionals, medical device makers, pharmaceutical firms, IT companies and other investor-owned firms”.

    However, it makes little sense to open up national systems unless these conform to standardized templates. A year later, Stevens was helping to pursue this aim, by acting as Project Steward within the World Economic Forum’s (WEF) year-long project on Sustainable Health Systems. Co-organized with the leading US consultancy, McKinsey, workshops held in New York, Berlin, Istanbul, Tianjin, Madrid, Basel, the Hague, and London were, according to the WEF, “remarkable in their consistency of vision”, advocating new care models with delivery from “capital-light settings” using “leveraged talent models” and “low-cost channels, such as home-based models”.

    In ‘Health Incorporated’, undoubtedly the WEF’s scenario of choice, the boundaries of the health industry would be redefined. “Corporations provide new products and services as markets liberalize, governments cut back on public services and a new sense of conditional solidarity emerges”. Further, “Health schemes and insurance markets boom as people seek to cover their health costs. Governments, meanwhile, focus on regulating large integrated health providers in a complex expanding global marketplace”.

    The final part of the jigsaw was applying these structures within the English NHS, and Stevens’ policy formation over the following years – the Five Year Forward View, the New Care Models Programme, the Sustainability and Transformation Partnerships, and, ultimately, the 42 regional-scale Integrated Care Systems – must be seen entirely within this context. With, for example, UnitedHealth “sitting within the ICS in Somerset and acting as the engine room” of transformation, and with Centene playing the same role in Nottingham, such relationships will be pursued in as many ICSs as possible. The bulk of the English policy community is firmly behind this and as yet the process only requires legal ratification.

    This is Stevens’ legacy: that of helping to create a global regime of accumulation, and situating English healthcare within that. In this, and here we must agree with the HSJ, he has proved remarkably successful. Rather than viewing Stevens as unique, however, he should instead be seen as an exemplar of a widespread phenomenon, as throughout his tenure with NHSE, for example, he continued to work with the World Economic Forum on its Executive Board of the Value in Healthcare Coalition, alongside CEO’s from Humana, Kaiser Permanente, Takeda, and several others, to further the aims of transnational capitalism. But in terms of developing and promoting the central tenets of the NHS – those of universality, equity, and indeed ‘freedom from fear’ – he is as far removed from Aneurin Bevan as you can get.


  • The Framework for Procuring External Support for Commissioning. This was set up by Mark Britnell, then the Department of Health’s director general of commissioning and system management, and now short-listed to be Stevens’ successor as NHSE CEO. The policy community clearly
    expects some form of continuity.
  • See for example:
  • Hellander, I. ‘Health firms’ proposal: Use trade rules to force other nations to import our failed “health ecosystem”’. Physicians For a National Health Program, 4 October 2011.
  • Stewart Player is a political analyst with over 20 years experience of working in the field of healthcare policy. Research areas covered include primary care, ISTCs, US healthcare policy, and long-term strategic developments within the NHS. Most recently working on NHS estates policy, restructuring within the private healthcare sector, and the political theory of transnational class formation.

    1. 1. Legislating for Integrated Care Systems: Provider Selection Regime Consultations
      Legislating for Integrated Care Systems: five recommendations to Government and Parliament
      includes the Response to Public Consultation on ICS (See Pages 8-22)

    The consultation findings are attached above (at 2) and it is disturbing to read some of the NHSE/ NHSI conclusions.

    Firstly, the report appears to blur the distinction between what is regarded as an engagement seeking views and a consultation which it was described as on line. It begins by declaring that 5,171 responses from people identifying as members of the public or patients who were concerned with “privatisation” of the NHS in some way, They identified these comments as part of a “national campaign” group ( later named as KONP) which involved speculation about the creation of ICSs! Therefore, they considered them as a single response. So, over 5,000 responses who may or may not have been members/ supporters of KONP, were reduced to one response and treated differently. 5,000 plus responses have been reduced to being described as “speculation” whilst the ” clear opinions” of some of the other 1700 respondents are accepted as having individual validity and are quoted in some detail.

    The distinction being drawn between speculation and a clear opinion is disingenuous, How does someone give an opinion unless you do speculate about what the implications or effects may be of any proposal for change? Furthermore, when the white paper does not actually contain much detail because the government and NHSE say they wish to increase flexibility and move away from prescription, what else can you do but speculate on possible outcomes!

    Not surprisingly, the majority of comments included from groups such as The Kings Fund, NHS Confederation; NHS Clinical Commissioners etc support the NHSE views with a few perfunctory caveats included for the sake of showing some ” balance”. This then feeds into the claim that 79% of respondents agreed or strongly agreed with the proposals ( See Page 3, 1.3; Provider Selection Regime consultation on proposals).

    Of course, this blatantly skewed approach to “consultation” is no surprise, as the Local Foundation Trusts/ CCGs used similar tactics during the consultations over Phase 1 of the Path to Excellence and The Urgent Care Review in Sunderland. It continues a growing trend by the NHS and others of discounting the strength of support for particular campaigns by characterising them as being “protest” groups with no real understanding of the issues. Unfortunately, this seems to be a further indicator of the direction of travel these proposals make in regard to governance of ICSs with moves to marginalise local scrutiny and representation and return control of the NHS to government.

    The NHS says it proposes that ICS bodies should be statutory public bodies but their legislative recommendations to government provide only that they should have a Chair and a CEO with representation from trusts, GPs and a local authority which could literally mean one representative for all local authorities in the ICS footprint ( there are 12 unitary local authorities in the North East and Cumbria ICS). Other unspecified bodies can also be appointed which could include private sector healthcare providers, management consultants or population health experts. But, of course, that’s speculation!

    Developments are now moving on at pace and the NHS has launched another consultation: NHS Provider Selection regime: Consultation on proposals which is due to close on 7th April 2021. This invites responses on developing a bespoke NHS regime to replace the current procurement requirements. You will recall that the White Paper includes the NHSE strategy for bypassing procurement which the MSM heralded as the end of privatisation.

    The first question on this engagement/ consultation is:

    “Should it be possible for decision-making bodies (eg the clinical commissioning group (CCG), or, subject to legislation, statutory ICS) to decide to continue with an existing provider … without having to go through a competitive procurement process?”

    This has obvious advantages in terms of less bureaucracy and administration but if the existing provider is a private health care provider then it does not reduce the privatisation already inherent and makes it more likely that future larger contracts will also go to private companies, particularly if the ICP is able to award one overriding contract. The government and NHS are making great play that this will enable greater flexibility and control locally but without appropriate safeguards being in place it is clear that the way is open for long term commercial contracts of 10-15 years which are already being suggested.

    Please will you look at all this and advise about the next steps.

    Is the Government’s way of dealing with over 5,000 responses legitimate?

    Posted by Jean Smith on behalf of an SHA and KONP member.

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

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

    The significance is twofold.

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

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

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

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

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

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

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

    I doubt it.


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


    Posted by Jean Smith on behalf of Labour Trans Equality


    First some background. NHS England Commissions GIDS (The Gender Identity Development Service) at the Tavistock & Portman NHS Foundation Trust. GIDS accepts referrals of young people with the features of gender dysphoria up to the age of 18 in England and Wales. The service at Tavistock & Portman in London has a regional centre in Leeds and satellite clinics in Exeter, Bristol and Birmingham.

    As a result of representations, to the Care Quality Commission (CQC) including by the Children’s Commissioner, the CQC undertook a focused inspection of GIDS in October and November 2020.  This resulted in a rating of Inadequate for the service..

    The CQC report presents a sobering picture of a service under considerable pressure. It finds that at the time of the Inspection the service was working with 2093 young people with a further 4677 young people on the waiting list resulting in a waiting time of at least 2 years for access to the service.

    While these figures would be cause for concern for any NHS service it is what lies behind them in terms of safeguarding and the risk to these young people which is most important and worrying. It is worth quoting directly from the CQC report….

    “Many of the young people waiting for or receiving a service were vulnerable and at risk of self-harm. The size of the waiting list meant that staff were unable to proactively manage the risks to patients waiting for a first appointment”.

    This is currently the reality for thousands of young people and the background to the current debate about the desirability of providing access to “hormone blockers” to young people below the age of 16 and cross sex hormones for young people from the age of 16. A debate heightened by divergent views about the legitimacy and safety of such therapies which has crystallised leading up to the recent Bell v Tavistock Court Case and its outcome now subject to Appeal. The case hinged on the role of parental consent in the treatment of trans children and young people Its impact has been significant for access to treatment and will remain so pending a conclusive outcome to the Appeal. (See commentary on the case by Robin Moira White & Nicola Newbigin of Old Square Chambers)

    This debate about treatment at GIDS frankly rather misses the point. In reality the number of young people currently being prescribed “hormone blockers” and cross sex hormones  at GIDS is less than a hundred. The NHS England treatment protocol for prescription of hormone blockers and cross sex hormones is very strict and following the outcome of the court case has become more so.  Meanwhile as the CQC report makes crystal clear thousands of young people are at varying degrees of risk because they are unable to access the diagnostic and clinical support which they desperately need from GIDS because of the size of the waiting list and the capacity of GIDS to assist them.

    It follows surely that if we are truly concerned about the care and wellbeing of a significant cohort of young people many of whom are at risk  this is what we must be focusing on.

    So what is to be done ? Simply we must focus on the reality rather than be influenced by myth and misinformation about the use of these treatments. Fortunately two key initiatives are now underway. Prior to the CQC Inspection NHS EI had already commissioned Professor Hilary Cass formerly President of the Royal College of Paediatric and Child Health to conduct a review. (The terms of Reference can be viewed on the NHSEI web site)

    Also and in response to the CQC’s findings, NHS EI is currently preparing proposals for establishing local support structures for young people seeking access to GIDS details of which will be revealed shortly. Implementation of these proposals will require support and engagement from people working with young people locally and especially in primary care.

    Meanwhile SHA members can play an important role in ensuring that the discussion about the care and support of these young people focuses on the realities facing thousands of them, their families and their carers and what must be done.  When NHS EI comes forward with its proposals for addressing this problem we must hope and expect that it will receive a positive response from primary care and local mental health services.


    CQC Report

    Tavistock & Portman NHS Foundation Trust Gender Identity Service Inspection Report 20.01.21

    The Cass Review

    “Review of GID Services for Children & Adolescents”

    Click to access GIDS_independent_review_ToR.pdf

    Legal Commentary

    “What about Parental Consent in the Treatment of Trans Children and Young People”

    Nicola Newbigin & Tobin Moira White

    Click to access What-about-parental-consent-1.pdf


    Comments on this article can be sent to Labour Trans Equality at


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    An industrial action ballot is one of the options that Unite the union will be considering as it steps up its campaign for a fair and decent pay rise for NHS staff.
    Unite, Britain and Ireland’s largest union, will be liaising with other health unions as to the next steps in the pay justice campaign, as the row continues over the government’s evidence to the NHS Pay Review Body (PRB) which recommends a one per cent rise for 2021-22. The PRB is due to report in May.
    Unite national officer for health Colenzo Jarrett-Thorpe said: “Following yesterday’s ‘slap in the face’’ announcement that the government wants to peg NHS pay at one per cent for 2021-22, Unite will be considering all its options, including the holding of an industrial action ballot, as our pay campaign mounts in the coming weeks.
    “We will be fully consulting our members on the next steps, given that inflation could be two per cent by the end of 2021, so what prime minister Boris Johnson is recommending is another pay cut in real terms.
    “The prime minister has a short memory as it was only last spring that he was praising to the skies those NHS staff who had saved his life
    “This proposal shows an unyielding contempt by ministers for those who have done so much to care for tens of thousands of Covid-19 patients in the last year. It should not be forgotten that more than 620 health and social care staff have lost their lives to coronavirus.
    “We will also be consulting the other health unions and professional bodies to coordinate and strengthen our approach to the pay campaign – mobilising public opinion will be key.
    “The public is rightly outraged by a government that can spend £37bn on the flawed private sector-led ‘test and trace’ programme, but can’t find the cash for a decent pay rise for those on the NHS frontline.
    “Some estimates reckon that a one per cent pay rise will be the equivalent of £3.50-a-week for the average NHS worker, which is shabby compared to how ‘friends’ of the Tory establishment have profited so greatly from the ‘fast track’ PPE contracts.
    “It leaves a sour taste in the mouth and insults the British public’s sense of fair play. We believe that public opinion will be key in shaming the government into changing its recommendations to the NHS Pay Review Body.
    “What the government is proposing will do nothing for NHS staff morale and will have a deterrent effect on filling the estimated 80,000 -100,000 vacancies in the health service, of which about 40,000 are unfilled nurse posts – the very people that care for Covid-19 patients every hour of every day.
    “Chancellor Rishi Sunak will suffer severe reputational damage if he fails to deliver the money necessary to fund a decent pay rise after a decade of austerity that has seen the pay packets of many NHS staff shrink by 19 per cent in real terms since the Tories came to power in 2010.
     “Unite, which has 100,000 members in the health service, will continue to make the case strongly that NHS staff deserve an immediate pay rise of £3,000-a-year or 15 per cent, whichever is greater.
    “Even this figure won’t start to make up for the 19 per cent decrease in pay in real terms that many NHS workers have lost since the Tories came to power in 2010.”
    Unite senior communications officer Shaun Noble
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    The following is a major speech from Shadow Health Minister Justin Madders.  In Parliamentary terms it is extremely critical of the government.  Even though the prime minister may have lowered the tone of debate, this is polite, measured, and at  the end, does threaten the PM with his P45.  I work with Justin a lot, and have developed considerable respect for his honesty and integrity over the years.

    Jean Hardiman Smith


    As we know, we are now a year into this pandemic. It has been a year unlike any we have experienced before, and it certainly was not the one we would have hoped for. The virus has turned the world as we know it upside down. We have seen the very best of many: our frontline health and social care workers who have selflessly looked after us, our key workers who have kept our vital services running and our country going, and our communities who have come together to support one another, especially those in need. But it has also been the very worst of times for many: families kept apart for months, individuals and businesses left with no support and, of course, the grim milestone of more than 120,000 deaths from coronavirus, which was reached this weekend. We know that each life lost is a tragedy that leaves behind devastated family and friends, and that death toll does need explaining. I will return to that issue later, but I would like to start on a more positive note.

    As the Minister referred to in his opening remarks, more than 17.5 million people in the UK have received their first dose of the covid-19 vaccine. I echo his congratulations to everyone who has been involved in that roll-out. From the scientists to the NHS to the volunteers, it has been nothing short of brilliant, and it is something for us all to celebrate. While we are on the subject, we should also extend our congratulations to Mark Drakeford and the Welsh Government for becoming the first country in the UK to get through the first four priority groups.

    I am sure that all of us have breathed a sigh of relief or even shed a tear when a parent or vulnerable family member or friend has received their first vaccine dose. Yesterday’s news that all adults in the UK will have been offered their first dose by the end of July is very positive indeed, but can more be done? When Simon Stevens says that the NHS could deliver double the number of vaccines it currently is, we will all be asking, why is that not happening? With research showing that some minority groups are well behind the general population in terms of take-up, another question that I am sure Members will want to raise about the roll-out is: what can the Government do to vaccinate more people in hard-to-reach communities?

    I am sure that many Members will have been moved by the story of Jo Whiley and her sister, Frances. She has talked about the anxiety shared by many families across the country. We know that people with learning disabilities are much more likely to die from coronavirus than the general population, with the death rate in England up to six times higher during the first wave of the pandemic, but currently only people with severe learning disabilities have been prioritised for the vaccine. I am sure the Minister is aware that over the weekend, at least one clinical commissioning group announced that it will be offering the vaccine to all patients on the learning disability register as part of priority group 6. I would be grateful if the Minister updated us on whether there are any plans to consider that issue again.

    I have one last question regarding the vaccine. We have asked a number of times for the Government to publish figures on how many health and social care staff have been vaccinated. The Secretary of State said last week that a third of social care staff had still not been vaccinated, so I hope that when the Minister responds to the debate, she will be able to update us on those figures and on what more we can do to improve take-up in that group. It is vital that we look after the people who look after us in social care and the NHS. Our NHS rightly deserves huge congratulations on its impressive and speedy vaccine roll-out, but despite its incredible efforts, it will still take many months before the vaccine offers us widespread protection. With the emergence of new variants, increasing pressures on our health service and continuing high rates of transmission, it is vital that Ministers do everything possible to ensure that frontline health and care workers, who are more exposed to the virus, are fully protected.

    Healthcare staff deaths are now estimated to be approaching 1,000. That is tragic. We know that our frontline workers face higher risk. During the surge in cases last month, the British Medical Association reported that more than 46,000 hospital staff were off sick with covid-19 or self-isolating. A survey conducted by the Nursing Times during the last two weeks of January found that 94% of nurses who work shifts reported that they were short-staffed due to similar absences. We support calls from the BMA and the Royal College of Nursing to urgently review PPE guidance and increase stockpiles of high-grade PPE such as FFP3 masks for all frontline NHS employees. I hope the Minister can update us on what plans the Government have to ensure that health and social care staff are fully protected.

    Finally, we need a plan for staff to address what comes next. Just as the nation needs a recovery plan, the NHS workforce needs one too. We must not forget that we entered this crisis with a record 100,000 vacancies in the NHS. What I hear from staff, who have now been working flat out for a year, is that they desperately need a break, and they need a tangible demonstration that their efforts are truly valued. The NHS rightly has a special place in the hearts of the people of this country, but without the staff, the NHS ceases to exist. That is why we need to recognise that we cannot keep dipping into that well of good will, and that at some point, NHS workers need cherishing as much as the institution itself.

    I cannot mention PPE without briefly addressing last week’s High Court ruling that the Government had acted unlawfully by failing to publish details of covid-related contracts. Why has the Secretary of State not come to Parliament to explain himself? Is breaking the law such a common occurrence in Government nowadays that it does not warrant an explanation from those responsible? The Government’s approach to procurement during the pandemic has been marred by a toxic mix of misspending and cronyism. We all understand that the Department was and is dealing with many pressing issues, but transparency is important, and accountability matters. Of course, we need to remember why there was such a rush to get PPE in the first place—it was because the Government had ignored the warnings and allowed stockpiles to run down. The pandemic has been used too often as an excuse for standards to slip, but it really should not need saying that transparency goes hand in hand with good government.

    Another area where we need greater transparency is the Government’s general response to the pandemic to date. With the highest number of deaths in Europe, those in power now need to answer why that has been the case, because such a grim death toll was not inevitable. If it is the right time to undergo an expensive and disruptive reorganisation of the NHS, it is also the right time to have the inquiry into covid that the Prime Minister promised more than six months ago. The families of the deceased deserve answers, and we all need to know that lessons have been learned and that the same mistakes will not be made again. If we look at what has happened so far, we can see that there has been a tragic failure to learn the right lessons. That is why what we have heard from the Prime Minister today matters, because we are not out of the woods yet. Infection rates, though they are reducing, remain high; there are more people in hospital now than there were at the start of the second lockdown; and there are still more than 1,000 people being admitted to hospital every single day. So, what we do next, when we do it and how we do it remains critical.

    The Opposition have been clear all along about the importance of following the science. We know where not following the science takes us: it leads to the worst death rate and the deepest recession in Europe. It leads to the farce of the Prime Minister refusing to cancel Christmas plans, only to U-turn three days later, and it leads to the shambles of children returning to school for one day, only to find it closed the next. We know that the virus thrives on delay and dither. As we approach a year of life under restrictions, any ambiguity over when, where, why and how the restrictions will be eased in the coming weeks and months is just as big a threat as the virus itself.

    Before I conclude, I just want to say a bit about test and trace. We did not hear anything new from the Prime Minister on that today, but it nevertheless remains a vital part of the pandemic response. We need to remind ourselves that the number of new cases is still above 10,000 each day, and that every day thousands more people are required to self-isolate. For this lockdown truly to be the last, we need to continue to cut transmission chains and the spread of the virus, so this continuing blind spot when it comes to supporting people to self-isolate is as baffling as it is wrong.

    When we first came out of lockdown, the scientific advice repeatedly stated that the easing of restrictions would work only if there was a fully functioning test and trace system in place. That was true last year and it is still true today. We still do not have all test results back within 24 hours, as the Prime Minister promised would happen last June, but perhaps most important are the continued low compliance rates with self-isolation. The Government have known for many months that the lack of financial support to those self-isolating has resulted in extremely low adherence rates. Surveys between March and August last year found that only 11% of people in the UK notified as having been in recent close contact with a confirmed case did not leave their home. That figure has improved a little recently, but it is still well below where it needs to be.

    Around a quarter of employers will only pay statutory sick pay for such an absence. The Secretary of State has previously said that he could not survive on statutory sick pay, so we should not be surprised when others cannot do so either. We also know that seven in 10 applicants are not receiving self-isolation payments from councils, with one in four councils rejecting 90% of applications. They are rejecting them not because there is no need but because the rules have been so tightly drawn that seven out of eight people do not qualify for a payment under Government rules. When Dido Harding herself says that people are not self-isolating because they find it very difficult, a huge question needs to be answered about why the Government have still not acted to rectify this.

    Last month, the Government announced more cash for councils for self-isolation payments, but that was to last until the end of March, and actually the amount handed out was the equivalent to one day’s-worth of people testing positive. That is clearly not enough, and what about after March? We need confirmation of how much support will continue to enable people to self-isolate after that date. Following reports in The Independent late last week that some people working for the NHS through private contractors, such as cleaners, porters and kitchen staff, were being denied full sick pay for covid-related absences because of the removal of supply relief, we need a commitment that this will be investigated urgently and that the direction of travel will be reversed so that everyone in the NHS is properly supported. The Government should be setting an example here, not leading a race to the bottom. On wider financial support, where is the road map for businesses that will still be operating under restrictions for many months to come? We know that the Budget is next week, but they need clarity and support now.

    In conclusion, what the Prime Minister announced today has to be the last time the word “lockdown” passes his lips. There must be no more false dawns and no more boom and bust. With this road map, relaxations should now be clear and notified to the affected parties in advance, but also approved by this place in advance. There should be no more muddle between guidance and laws; no more regulations published minutes before they become law; no more businesses having to throw away thousands of pounds-worth of stock because decisions are reversed at a moment’s notice; no more of the stop-go cycle; and no more hopeless optimism followed by a hasty retreat. This time really has to be the last time. The vaccine has given us hope. It has given us a route out of this. With a year’s experience of the virus and with multiple vaccines on the way, there can be no excuse for failure this time. The Prime Minister has said that he wants the road map to be a one-way ticket. I hope he is right. We all want him to be right, but if he gets it wrong, he should expect nothing less than a one-way ticket to the jobcentre.



    Joint Authors:

    Colin Slasberg Consultant in Social Care

    Peter Beresford visiting Professor University of East Anglia

    Last September, spurred into action by what the pandemic told her about the state of social care, Nicola Sturgeon announced an independent review of adult social care to ‘build a service fit for the future’ in Scotland. She invoked the spirit of 1948 for social care to experience the same transformation post Covid as the NHS did post war. The review was led by Derek Feeley, President and Chief Executive of the Institute for Healthcare Improvement.

    With remarkable speed, based on extensive public engagement the review has now reported. The headlines are likely to be dominated by calls for a National Care Service. Responsibility for funding will become centralised and new joint Boards with the NHS will be responsible for commissioning and procurement, not the local authorities. The latter will retain delivery of the ‘social work’ function, which means the great majority of current function given the infrastructure required to support and direct the field work role which identifies need and allocates resources to individuals.

    Cultural change must precede structural change.

    The report’s authors believe that structural change without cultural change does nothing more than re-arrange the furniture. This leads them to the view that it is their first recommendation, which transcends structural concerns to address cultural concerns, that is the real key to delivering what the First Minister wants. The report recommends a system is built from and driven by a ‘human rights approach’, such that ‘Human rights, equity and equality must be placed at the very heart of social care and be mainstreamed and embedded’. It would be ‘further enabled by incorporation of human rights conventions’ with particular reference to Independent Living.

    Facing up to the resource consequences

    It will not, of course, be the first time a review or commission has sought such high minded ideals. Nor would it be the first time a government has signed up to them, but without a serious plan to deliver. What is new in the Scotland review is that it has grappled with how those ideals engage with the question of resources. This raises genuine hope the ideals will for the first time get beyond ‘blue horizon’ managerial pleadings.

    The review makes the following three recommendations;

    1. ‘People should understand better what their rights are to social care and supports, and “duty bearers”, primarily social workers, should be focused on realising those rights rather than being hampered in the first instance by considerations of eligibility and cost.
    1. A co-production and supportive process involving good conversations with people needing support should replace assessment processes that make decisions over people’s heads….that does not start from the basis of available funding. Giving people as much choice and control over their support and care is critical
    1. Where not all needs can be met that have been identified as part of a co-production process of developing a support plan, these must be recorded as unmet needs and fed into the strategic commissioning process’

     The first two recommendation give practical expression to what a system built to deliver human rights looks like. The third offers a practical way forward to realising it.

    The transformation process – from what to what?

    The recommendations above also give expression to what a system not built to deliver human rights looks like. Neither the person nor the social worker has any power. Decisions are taken ‘above their heads’. The social worker is rendered merely piggy in the middle. They take information from the individual and give it to the decision maker and then feed the decision maker’s decisions back to the individual. The situation is further damaged by the social worker being ‘hampered’ by having to think first about resources, eligibility and cost.

    These first two recommendations make clear that a human rights based approach means that the individual and the social worker must be free to work in authentic partnership to work out the best way to give the individual the best quality of life their circumstances allows without regard to availability of resource.

    If these two recommendations were to be delivered, the role of the social worker would be transformed. They will, at long last, be the social care equivalent of the clinician in the NHS. People are generally confident that if they need a diagnosis and treatment from an NHS clinician that the clinician will make their best judgement as to what modern medicine will make possible.  Patients are aware, however, they may subsequently have a wait depending on availability of resources.

    Managing the resource consequence

    For such a positive practice process to ever become a reality in social care, the resource consequences have to be managed. To base a strategy on thinking otherwise, perhaps on the premise that society and their political leaders should fund all the needs of older and disabled people however much it costs, is very high risk. Social care would have to be delivered outside of a budget. Proponents will have to persuade political leaders and the public why social care should have a guarantee of all their responsibilities being funded while no other public service does, not even the NHS. Failure of such a strategy will mean the status quo will not change.

    The pragmatic approach is to accept that social care will continue to be delivered within a budget determined by the democratic process, national or local.

    The Feeley review addresses this reality in the third recommendation above. If need is to be identified without regard to resource availability, there is no arithmetic prospect that the resources required will coincide with the resources available with the precision required to match spend to budget. The system must allow for need to exceed resource.

    The political consequence

    The current, eligibility based system does the exact opposite – it does not allow for need to exceed resources. It actually forbids it. The system delivers the imperative to spend within budget by ensuring the flow of needs it meets is determined by the budget. This is made evident in Scotland by the scale of the post code lottery despite all councils ostensibly working to the same eligibility criteria. Because ‘need’ is determined by resources, it is a system that never recognises there is any unmet need. Whatever budget is provided is always enough.

    That, of course, is music to the ears of political leaders with other priorities on their minds. But if the Scottish government adopts the recommendations of this report, that comfort will have been given up. Councils will know the true cost of delivering on political leaders’ commitments to the human rights of their older and disabled citizens. The commissioners will have the information to tell them.

    Implications for England

    We have to wait and see how Holyrood responds. But however it does, perhaps this review’s thinking can influence the debate in England where the same eligibility based system is in place The debate in England has yet to get beyond the funding questions. Absent is any thought of vision. But only with vision can we know what we want for our money. And only with vision can we ensure we are spending our money well, achieving the results we want, and how far we are falling short.

    The Scotland review’s third recommendation as above is a remarkably simple idea. Eligibility of need must be replaced with affordability of need to control spending. Those responsible for the system will need to be prepared for transparency and honesty about any gap between needs and resources. Unmet need in social care should replicate the functions waiting times have in the NHS. Firstly they are a ‘safety valve’ at the front line when resources lag behind need. Secondly they act as a weather vane so political leaders know what way the wind is blowing when the time comes round to make political decisions about the funding requirements for social care.

    The Scottish review recommendations resonate powerfully with the view about the transformation change required in England set out by Barry Rawlings, leader of the Labour opposition in Barnet. Barry’s blog places the agenda in the English context.

    Whether or not the Scottish government lights this beacon, hopefully leaders in England will open their minds to the possibilities opened up.

    Comments Off on Realistic hope for a Social Care system driven by Human Rights from Scotland

    Author: B Fisher on behalf of Keep Our NHS Public

    The SHA asks you to support this great project if you can. Please spread the Crowdfunder with friends, families and in your networks – we need to know why so many deaths – why so many families, the NHS and social care were let down so very badly.

    The target for funds will sustain our campaigning efforts.

    Please share the crowdfunder for the KONP People’s Covid Inquiry:

    People’s Covid Inquiry site for info and evidence:

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    The pharmacists’ defence association and trade union, PDA, is to urge the NHS to develop its strategy for the delivery of the second vaccination in good time and to give the role of the second vaccination of the Astra Zeneca vaccine to the national community pharmacy network as part of a collaborative and integrated NHS process.

    The decision to delay the second dose of the Covid-19 vaccination to twelve weeks so that the current efforts can concentrate on giving as many people as possible a first dose of the vaccine has already resulted in more than 6 million first vaccinations being successfully delivered in one of the UK’s designated vaccinating hospitals, primary care GP hubs or in one of the large regional centres.

    However, this means that in just over two months time, a large and ever-increasing cohort of the population will be due to receive its second vaccination and this will create logistical challenges to the current vaccination programme and risks slowing down the rollout of the critical first doses.

    PDA to launch “A thousand little ships” policy

    Individual pharmacies will never be able to deliver the high-volume vaccination operations seen in the large regional centres or the primary care hubs. However, like the large number of privately owned little ships that supported the larger Royal Navy carriers to save the lives of more than 330,000 allied soldiers from the Dunkirk beaches, they have the capacity to deliver smaller numbers that add up to a significant amount.

    With the potential of vaccinations across more than 13,500 locations in the UK, this mathematical capacity, even if providing an average of only 25 vaccinations per day, per pharmacy, would be able to deliver more than 2 million vaccinations each week. This would represent a very substantial component of the overall national vaccination programme.

    Working in a collaborative way and integrated within the wider NHS vaccination delivery pathway, pharmacists located in all community pharmacies delivering the second dose of the Astra Zeneca vaccine would protect the NHS by maintaining the capacity of the purpose-built, high volume hubs.

    This would enable the hubs to continue at pace with the successful first vaccination programme, as well as enabling them to deliver the second more operationally complex Pfizer Biontech vaccines.

    According to PDA Chairman, Mark Koziol:

    “The system needs to be dynamic and the number of vaccinations delivered in each pharmacy will depend on demand and location. Some pharmacies may be able to deliver more than 80 a day, while others may only be required to deliver 8 vaccinations on two afternoons a week. This would depend on how many patients booked appointments at the pharmacy of their choice. Appointments could be organised to ensure that no vaccine was ever wasted or left unaccounted for and in a way that enables the local community pharmacy to organise the right staffing levels for their vaccine clinics.”

    The PDA envisages that the community pharmacy vaccination programme could easily be built upon the existing Covid-19 vaccination service where the NHS local vaccination centres or primary care organisations would continue to be in control of the vials. The local centres would ensure that only the requisite number of vials were distributed to participating pharmacies on the specific days they were needed based on the number of appointments booked via the NHS vaccination booking system. This distribution and governance system would operate much in the same way that it currently does with the local care and residential homes.

    Mark continued:

    “The current GP vaccination hubs are successful because they rely on dedicated vaccinators. This means that the existing GP practice patients continue to enjoy access to their wider GP service. In our proposal, just as in the GP practice setting, the public would expect the wider community pharmacy service to continue and be delivered safely with full-time access to the community pharmacist to discuss their wider healthcare issues on an opportunistic basis. For this reason and also because the movement of the vials requires the vaccination service to be carefully structured and managed to avoid waste of vaccine, the vaccinations would have to be delivered in planned clinic sessions by a second dedicated pharmacist who comes in specifically to support the vaccination programme.” 

    The PDA’s “A thousand little ships” policy will be presented to governments in all four UK countries over the next few days.

    You can download the England version here:  PDA-Little-Ships-Initiative-ENGLAND-FINAL

    1 Comment

    Updated 06/02/2021


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

    22 January 2021

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

    With grateful thanks to Elitsa Garnizova, LSE.


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

    Setting the scene

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    US Trade Agreements

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

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

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

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

    Aspects of a health system: model

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

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

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

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

    Potential direct effects


    Medical supplies Potential for reduced costs to NHS.

    Potential for increased costs to NHS (through patents).

    Potential for earlier access to novel products than otherwise.

    Potential opportunities for UK-based medical supplies sector.

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

    Potential to facilitate sale of NHS data.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Information systems, data sharing, health data in biomedical research

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

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

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

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

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

    Health/clinical services and medical treatment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Health workforce

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

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

    Potential indirect effects


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

    Non communicable diseases

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


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

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

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

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

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

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


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

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

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

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

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


    NHSE/I consultation on

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

    Response to the consultation by

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

    8 January 2021

    1. Overview

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

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

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

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

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

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

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

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

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

    In summary, the proposals:

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

    We discuss the details in the following two sections.

    1. ICSs during 2021/22 and before legislation

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

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

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

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

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

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

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

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

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

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

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

    • The single pot budget

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

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

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

    • Provider collaboratives

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

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

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

    • ICS membership

    There are two potential aspects in this regard.

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

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

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

    • Public accountability

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

    • Competition and contracting

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

    • Social care

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

    • Public health

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

    • Workforce planning

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

    • Moving staff and their terms and conditions

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

    1. ICSs after legislation

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

    The next steps document proposes two options for legislation.

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

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

    NHSE/I prefer Option 2.

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

    • Major reorganisation

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

    In September 2019, NHSE/I stated:

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

    • Competition and contracting

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

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

    • Fate of CCGs

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

    • ICS membership

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

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

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

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

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

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

    1. Conclusion

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

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

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


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

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

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

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

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

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

    NHS. BMJ. 2018;360:k343. id=11

    [7] E.g., Care Home Professional, Terra Firma close to £160m care home sale to Barchester Healthcare, 15 November 2019, re-home-sale-to- barchester-healthcare-report/


    ICS Next steps Consultation Response 08Jan21