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    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.

    Comments Off on Government response to Public Consultation on ICSs

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

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

    The significance is twofold.

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

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

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

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

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

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

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

    I doubt it.

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

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

     

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

    3 Comments

    Posted by Jean Smith on behalf of Labour Trans Equality

    05.3.21

    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.

    References

    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

    admin@labourtransequality.org.uk

    Website

    http://labourtransequality.org.uk/

    Comments Off on “Safeguarding Young Trans People; The Real Issues!”
    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
    Comments Off on Unite considers industrial action after government’s ‘indecent proposal’ of one per cent pay rise for NHS staff

    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.

     

    3 Comments

    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:

    https://www.crowdfunder.co.uk/peoples-covid-inquiry.

    People’s Covid Inquiry site for info and evidence:

    https://www.peoplescovidinquiry.com/

    https://www.crowdfunder.co.uk/peoples-covid-inquiry

    Comments Off on Launch and Crowdfunder for KONP’s People’s COVID Inquiry

    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

    Authors:

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

    22 January 2021

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

    With grateful thanks to Elitsa Garnizova, LSE.

    Summary

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

    Setting the scene

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    US Trade Agreements

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

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

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

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

    Aspects of a health system: model

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

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

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

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

    Potential direct effects

    Summary

    Medical supplies Potential for reduced costs to NHS.

    Potential for increased costs to NHS (through patents).

    Potential for earlier access to novel products than otherwise.

    Potential opportunities for UK-based medical supplies sector.

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

    Potential to facilitate sale of NHS data.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Information systems, data sharing, health data in biomedical research

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

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

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

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

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

    Health/clinical services and medical treatment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Health workforce

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

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

    Potential indirect effects

    Summary

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

    Non communicable diseases

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

    Governance

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

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

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

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

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

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

    Process

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

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

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

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

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

    2 Comments

    NHSE/I consultation on

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

    Response to the consultation by

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

    8 January 2021

    1. Overview

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

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

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

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

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

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

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

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

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

    In summary, the proposals:

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

    We discuss the details in the following two sections.

    1. ICSs during 2021/22 and before legislation

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

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

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

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

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

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

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

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

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

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

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

    • The single pot budget

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

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

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

    • Provider collaboratives

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

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

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

    • ICS membership

    There are two potential aspects in this regard.

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

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

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

    • Public accountability

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

    • Competition and contracting

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

    • Social care

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

    • Public health

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

    • Workforce planning

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

    • Moving staff and their terms and conditions

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

    1. ICSs after legislation

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

    The next steps document proposes two options for legislation.

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

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

    NHSE/I prefer Option 2.

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

    • Major reorganisation

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

    In September 2019, NHSE/I stated:

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

    • Competition and contracting

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

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

    • Fate of CCGs

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

    • ICS membership

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

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

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

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

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

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

    1. Conclusion

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

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

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

    END

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

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

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

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

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

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

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

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

     

    ICS Next steps Consultation Response 08Jan21

    2 Comments

    This is SHA’s response to NHSE’s consultation on putting ICSs on a statutory footing. It is a curation of the generous and thoughtful comments of many members. Please forward to as many of your groups and networks as possible.

     THE SOCIALIST HEALTH ASSOCIATION’S RESPONSE TO “INTEGRATING CARE –

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

    WHAT SHA WANTS TO SEE

    A cooperative and democratic health and care system, fully funded through general taxation, free at the point of use, that eliminates the privatisation of clinical services.

     SHA cannot support these proposals.

    RESPONSES TO QUESTIONS

    Q. Do you agree that giving ICSs a statutory footing from 2022, alongside other legislative proposals, provides the right foundation for the NHS over the next decade?
    SHA does not agree. Our many reasons are explained below.

    Q. Do you agree that option 2 offers a model that provides greater incentive for collaboration alongside clarity of accountability across systems, to Parliament and most importantly, to patients?
    SHA does not have a view on this.

    Q. Do you agree that, other than mandatory participation of NHS bodies and Local Authorities, membership should be sufficiently permissive to allow systems to shape their own governance arrangements to best suit their populations needs?
    There need to be national standards, locally delivered, matched to the needs of an area. Please see SHA’s thinking on NHS democracy.

    Q.Do you agree, subject to appropriate safeguards and where appropriate, that services currently commissioned by NHSE should be either transferred or delegated to ICS bodies?

    NHSE, if it continues to exist, should plan for those requirements that are best planned at national level. These could include rare diseases and specialist services.

     SHA’s REASONS FOR REJECTING THE PROPOSALS.

    Based around place

    SHA supports the idea of services based on an area, reflecting the needs of that place. However, this document leaves place ill-defined.

    Relationships with Local Authorities

    There is poor legislative alignment of responsibilities of Local Authorities (LAs) and ICSs.  This is an issue particularly with reference to Public Contract Regulations 2015, which will still apply to Local Authorities and could increase the regulatory burden on local government, create barriers to joint planning arrangements, or result in inappropriate planning via an NHS channel as discussed elsewhere.[i]

    Interactions with local government are alluded to but only vaguely described.  For example, the document states ‘[the proposals] will in many areas provide an opportunity to align decision-making with local government’ [our emphasis]. This is very weak. How will ICS’s that do not align geographically with local authorities function in this respect?  There is a clear risk that such multi-authority ICSs will drive a ‘one-size-fits-all’ approach across diverse communities and geographies in direct opposition to the stated aims of ‘decisions taken closer to the communities’ [para 1.9].

    Overall, it looks as though this is not a collaboration of equals. An ICS as described would be led by the NHS and the LA would be very much a secondary partner. The SHA would like to see a bigger and more equitable role for LAs.

    Devolution

    The statements on devolution such as at 1.11 can be applauded but the reality we know is that since 2011 the NHS has become more centralised. There needs to be more concrete proposals on how this devolution will occur. The mandatory nature of the proposals is a concern and there should be more local discretion within National Care Frameworks and oversight.

    Governance

    Clauses 1.12 and 1.15 are good clear summaries of what the ICS should do and provide. However, 1.16 on page 7 states that primary care, community health and mental health services, social care and support, community diagnostics, urgent and emergency care will be working together with other public or voluntary services Including those providing skills training, assistance into employment, and housing. But no consistent mechanism, structure, governance, regulatory, or accountability framework is defined for this.

    Strategic commissioning/planning (P2, third bullet point) requires the resources of a CCG and of a CSU, but the proposal appears to leave the CSU as a separate organisation (see P24, 2.68) outside of the ICS. No explanation is given for why this is better. Our view is that the CSUs were created outside of the NHS to provide a first landing place in the UK for US insurers who failed to take up the challenge. The most cost-effective route to back office services and business intelligence would be to bring them back into the NHS as shared services operations.

    These clauses do nothing to strengthen the requirement for probity in contracting and appointment procedures made scandalously apparent through court actions presently being pursued in the wake of inappropriate commissioning during Covid.

    There are poorly delineated internal and external accountability processes. As others have noted[ii], [iii] this is a consequence of a lack of precision regarding the function, roles and relationships of ICS. These issues should be clarified.

    There is insufficient detail regarding the openness and transparency of appointments, decision-making and data sharing by ICS and the role of independent sector (IS) organisations in ICSs. While we note that the Government considered ‘it likely that statutory organisations will hold the ICP Contracts’. [iv] Our understanding is that ‘accredited’ companies can be brought in to draw up policies and make service decisions within ICSs. These services could include:

      • Enterprise-wide Electronic Patient Records Systems – for Acute & Community and for Mental Health Hospitals
      • Local health and care record strategy and implementation support and infrastructure
      • ICT infrastructure support and strategic ICT services
      • Informatics, analytics, digital tools to support system planning, assurance and evaluation
      • Informatics, analytics, digital tools to support care coordination, risk stratification and decision support
      • Transformation and change support
      • Patient empowerment and activation
      • Demand management and capacity planning support
      • System assurance support
      • Medicines optimisation

    The role of independent sector organizations in this context must be more clearly defined and regulated, and subject to governance appropriate to a public body. Where possible the NHS should provide such services and/or be empowered to provide any such expertise. We do not agree with private companies being brought in as decision makers. They are bound by law to maximise shareholder profit, not to provide a public service.

    In addition, the document does not address the potential difficulties arising from the requirement on ICS organisations to comply with various competition rules, such as not sharing commercial sensitive information or fixing prices.  For multi-site ICS providers, this presents a system risk in terms of having to share patient and staff data or information with other organisations.  In general, insufficient attention is given to issues around sharing personal health information by ICSs.

    Guidance should be also clearer on the overriding importance of transparency in ICSs decision making. Efforts should be made to limit the use of ‘commercially sensitivity’ as a spurious justification for subverting transparency.

    There is insufficient consideration of potential conflicts of interest within the proposed ICS (e.g. between providers and commissioners, or between public, voluntary, and commercial partners) and how these can be prevented or mitigated. Notably it has been suggested that providers will be able to influence allocations via the ICS partnership board, and there is a credible concern that ‘bigger players’ will skew funding decisions.[v]

    Governance and PCNs

    1.17 mentions PCNs but the regulatory framework through OfSted for children’s services, CQC, NHSE/I, is currently not fit for purpose because it is overlapping and contradictory. There is no governance framework at the moment for PCN collaborations with community and mental health Trusts, and accountability is difficult to pin down.

    Data

    The paper promises to invest in the infrastructure needed to deliver on the transformation plan. This will include shared contracts and platforms to increase resiliency, digitise operational services and create efficiencies, from shared data centres to common EPRs.

    Digital is essential to the current and future NHS. SHA warns against the vaunted flexibility of the transformation plan allowing personal data to be misused by commercial interests even more than it is now. SHA also warns against services rushing into digital solutions without adequate evaluation and without enabling non-digital solutions for those who still require them.

    Health Creation is not mentioned in this paper.

    SHA supports the concept of Health Creation. That is the process of bringing people in contact with each other, building confidence and thereby enabling communities to take more control of their area and their health and care.

    An option we would like to see would be mandating 1% of a PCN’s budget to community strengthening – population Health Creation

    Population health, but almost no mention of Health Inequalities

    There needs to be a clear vision of the metrics of “population health” especially if this it to be the main outcome or “productivity” upon which the NHS and its partners is being judged. The consultation  paper seems silent both  on what these metrics are and on what role the NHS is to play in delivering that outcome. For example, is the metric of population health a pre-determined blend of longevity and the quality of life delivered?  To what extent is managing the ” social determinants of health” to be allied with the NHS as opposed to being the task of wider government and indeed others?

    “Integrating Care” does not really explain “population health”, but the HSSF is more explicit:

    “Population Health Management is an approach aimed at improving the health of an

    entire population and improves population health by data driven planning and delivery

    of care to achieve maximum impact for the population.”

    Any concept of patients and staff planning and evaluating the service, which will involve decisions on what to prioritise, is absent. Instead, the HSSF accredits corporations to support an ICS in taking such decisions. We should propose a 5th principle on the necessary need to involve patients in these arrangements. There is good evidence that such effective engagements lead to better services.

    In practice the emphasis on the role of Foundation Trusts and clinician-leadership is likely to prioritise clinical service provision, whether primary or secondary care, with limited focus on prevention and population health. This is an inherent structural weakness of the ICS model as currently specified.

    SHA cannot support ICSs without a far clearer commitment to tackling health inequalities through tackling the wider determinants of health and working closely with LAs, housing and other key partners. The document states that greater co-ordination between providers at scale can support… ‘reduction of health inequalities, with fair and equal access across sites;’. It is not clear how this follows as no mechanism linking these two is articulated. Vague commitments as outlined in the document are inadequate to address this persistent and worsening problem. Specific goals and mechanisms for reducing health inequalities should be explicit in the proposals.

    Single pot for finance and the legislative proposals
    On the face of it, a single pot (2.40), linked with reducing the importance of competition seems like a significant step forward and a more equitable and efficient approach to funding. SHA is supportive to the extent that these proposals reduce the contract negotiation and monitoring which is so wasteful of time and effort in the NHS, with savings in overhead costs and improvement in services designed by providers aiming at better outcomes, not by commissioners principally aiming to reduce expenditure. There must be appropriate risk sharing because of the danger that an individual ICS could be destabilised by unforeseen and one off events.

    It is not clear how this single pot will be spent, assuring fairness, value for money, quality.

    At 2.47 there is a limited mention of capital. There is no mention in the document of NHS Property Services or Community Health Partnerships or the NHS Estate. This is a major weaknesses in the proposals.

    Taken together with “Integrating Care”, this makes clear that fixed payment to secondary care providers must conform to the ICS system plan. Initially , the fixed payment would be based on the current block payments under the heading of COVID-19, which make up the majority of current CCG budgets. Fixed payments will be determined locally. While national tariffs will no longer apply in general, they may be retained for diagnostic imaging, a highly privatised sector. Some elective activity, again involving the private sector, will also be exempt from blended payment. In other words, private sector suppliers of clinical services will be protected from any local cost reductions.

    However, we also see impossible control totals which will make investing and innovation extremely difficult and constrain ICSs for the future. In effect, this continues austerity. We want to see comprehensive funding for an expanding, publicly funded NHS.

    Allusion is frequently made to anticipated cost savings and efficiency improvements [paras 1.8, 1.9, 2.22, 2.46, 2.51] but it is unlikely that these will be realised in the short-term and short-term costs may even increase.[vi] Evidence from similar interventions in the UK and other countries provides at best equivocal evidence for longer-term improvements in efficiency.[vii], [viii], [ix] Quality rather than cost-savings should be the primary driver of any reorganisation.

    There are other concerns SHA has in respect of the apparent relaxation of privatisation.

    All clinical services should be retained in house and fall under a re-instated duty of the Secretary of State for Health to PROVIDE such services.

    Providers will still be able to use the private sector. There are contracts now through NHS Shared Business Services which appear to require no formal tendering.

    Beware of cementing existing privatisation. This can happen through sub-contracting as above and by current private sector providers expanding through what ever contracting process there may be. The most likely beneficiary is likely to be the privatisation of mental health services through the Priory and similar organisations.

    Backroom functions will continue to be privatised.

    “Integrating Care” never mentions “private”, “independent sector” or “third sector”. The document

    uses a new codeword, namely ‘others’. This suggests that NHSE fully expects the private sector to play a most important part in the future, including for clinical services. (NHSE/I “Integrating Care” KONP)

    Covid has shown us, if we needed showing, that a truly nationalised health and social care service is needed and vital, with the advantages of national estate agility, workforce planning, driven by a national public health strategy to invest in the social care infrastructure of the national economy, whilst local partnerships freed of wasteful market practices are responsible for local delivery and can be locally accountable.

    Staff

    Whilst the fixed payment would be determined locally, neither “Integrating Care” nor

    “Developing the payment system” refer to national agreements on wages, terms and conditions.

    The SHA is very concerned that, despite papers on responding to the staffing problems, we have not seen any recommendations for comprehensive staffing programmes that support pay justice and adequately protect workers.

    Despite discussion emphasizing the key role of the workforce in effecting these changes, mechanisms to allow direct representation of workers or their trade union spokespersons on ICS are entirely lacking in the proposals.

    Any proposal for ICSs should make explicit commitments to ensuring that all workers receive the National Living Wage (and preferably the real Living Wage) whether they are employed by the NHS or by subcontractors to ICSs. ICSs should commit to abolition of zero hours contracts in all its activities.

    Democracy

    Despite frequent criticism of ICSs as being distant from communities and undemocratic (as indeed is the NHS as a whole), this paper gives little confidence for any significant democratic change. Healthwatch is not sufficient, too health focused and with too few teeth.

    SHA would like to see financial transparency, accountable to communities. SHA would like to see ICSs exploring the opportunities for participatory democracy – such as community development, citizens forums, coproduction networks.

    “Current ICS arrangements are outrageously disconnected not only from real democratic structures but also from real centres of identity and community. They are administratively defined and they are under the control of officers who are not accountable to local people.

    What I would like to see is NHS Sheffield accountable to the local people of Sheffield (and likewise for other communities). It is totally inappropriate to leave accountability and governance of supposedly statutory bodies open to development and interpretation by officers of the ICS. All the assets of the ICS should be treated as public assets, especially all the capital assets and these must all be put under local (not national) control.” Duffy, SHA member

    With many thanks to all those SHA members who generously contributed to this response.

    We have also drawn on documents from Keep Our NHS Public and the Local Government Association.

    [i] Integrating care: Next steps to building strong and effective integrated care systems. Local Government Association (https://www.local.gov.uk/parliament/briefings-and-responses/integrating-care-next-steps-building-strong-and-effective accessed 23/12/20)

    [ii] Delivering together: Developing effective accountability in integrated care systems. NHS Confederation/Solace (https://www.nhsconfed.org/-/media/Confederation/Files/Publications/Delivering-together-FNL.pdf accessed 22/12/20)

    [iii] Integrated care systems (ICSs) (https://www.bma.org.uk/advice-and-support/nhs-delivery-and-workforce/integration/integrated-care-systems-icss accessed 24/23/20)

    [iv] Government response to the recommendations of the Health and Social Care Committee’s inquiry into ‘Integrated care: organisations, partnerships and systems’ Cm 9695 (https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwiJw-_Dt-ztAhWkoVwKHXuRAkIQFjAAegQIARAC&url=https%3A%2F%2Fwww.gov.uk%2Fgovernment%2Fpublications%2Fgovernment-response-to-the-health-and-social-care-committees-report-on-integrated-care&usg=AOvVaw2k1pzGscqk30BYEL_QbNJt accessed 26/12/20)

    [v] On the day briefing: Integrating care, NHS England and NHS Improvement. NHSProviders 26 November 2020 (https://nhsproviders.org/media/690689/201126-nhs-providers-on-the-day-briefing-integrating-care.pdf accessed 26/12/20)

    [vi] House of Commons Health and Social Care Committee Integrated care: organisations, partnerships and systems Seventh Report of Session 2017–19 (https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjb-oSstuztAhUNYsAKHabDDoYQFjAAegQIBBAC&url=https%3A%2F%2Fpublications.parliament.uk%2Fpa%2Fcm201719%2Fcmselect%2Fcmhealth%2F650%2F650.pdf%3Futm_source%3DThe%2520King%2527s%2520Fund%2520newsletters%2520%2528main%2520account%2529%26utm_medium%3Demail%26utm_campaign%3D9379676_NEWSL_ICB%25202018-06-13%26dm_i%3D21A8%2C5L1EK%2COYZ6AS%2CM5X8X%2C1&usg=AOvVaw0-ZVcp3j_Sh049yv9kdNTA accessed 26/12/20)

    [vii] John Lister, How Keep Our NHS Public should be campaigning on Integrated Care Systems. November 24 2020. (https://keepournhspublic.com/resources/how-keep-our-nhs-public-should-be-campaigning-on-integrated-care-systems/ accessed 26/12 20)

    [viii] Government response to the recommendations of the Health and Social Care Committee’s inquiry into ‘Integrated care: organisations, partnerships and systems’ Cm 9695 (https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwiJw-_Dt-ztAhWkoVwKHXuRAkIQFjAAegQIARAC&url=https%3A%2F%2Fwww.gov.uk%2Fgovernment%2Fpublications%2Fgovernment-response-to-the-health-and-social-care-committees-report-on-integrated-care&usg=AOvVaw2k1pzGscqk30BYEL_QbNJt accessed 26/12/20)

    [ix] Scobie S (2019) ‘Are patients benefitting from better integrated care?’, QualityWatch blog. Nuffield Trust and Health Foundation. (www.nuffieldtrust.org.uk/news-item/are-patients-benefiting-from-better-integrated-care accessed 26/12/20)

    SOCIALIST HEALTH ASSOCIATION RESPONSE TO ICS CONSULTATION 7 1 21

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    The NHS are running a survey on Integrated Care – your views.

    The link to the NHS  Consulation Hub is below.

    https://www.engage.england.nhs.uk/survey/building-a-strong-integrated-care-system/

    Many thanks to David Taylor-Gooby of the North East branch for bringing this to our attention.

    5 Comments