Category Archives: Rationing treatment

I was recently questioned about the future of the NHS, during a live debate on the BBC Radio 4 programme Moral Maze, on 9 July 2014. One of the panelists took me to task for being a “bean counter”. I got side-tracked by this somewhat less-than-flattering characterisation of my professional role as a health economist, and so only managed to get across three of the six points I had planned to make. For what they are worth, this blog sets out all six points. And, as an added bonus, it then concludes by explaining why I am proud to be a ‘bean counter’.

This blog sets out personal ethical views on a number of controversial matters of social value judgement. That is what the BBC programme makers asked me to do, and I hope my professional colleagues will not ‘tut tut’ too loudly when they see me doing it. Professional economists are supposed to help decision makers and stakeholders think through the implications of a range of alternative value judgements, rather than to impose their own particular personal or professional value judgements. However, this blog post merely voices my own value judgements – it does not impose them on anyone.

Point number one is that the NHS performs rather well compared with other health systems across the world. It is relatively cheap, relatively good, and very fair. The UK currently spends about 9% of national income on health care, just under the OECD average, compared with 18% in the US. People in the UK are on average healthier than those in the US – even rich people with access to the best available health care in the US. And the UK regularly comes top of Commonwealth Fund surveys of fairness in high income health systems. The UK NHS is widely regarded as the fairest health system in the world, with the possible exception of Cuba.

Point number two is that financial strain on the NHS will get worse in decades to come – potentially much worse. This is due to a fundamental clash between health economics and tax politics. The tax politics is obvious. Voters do not like high taxes, so there is a limit to how far taxes can be raised, even to pay for something as popular as health care. The health economics is less obvious, but surprisingly simple when you think about it. As countries get richer, they spend a higher percentage of national income on health care. There is a simple reason for this. As we get richer, which is more valuable – a third car, yet more electronic gadgets, or an extra year of life? (I am here paraphrasing Hall and Jones, who predicted that health spending in the US will rise to 30% of national income by 2050). In the technical economic jargon, health care is a ‘superior’ or ‘luxury’ good. Do not be misled by this jargon – it does not mean that health care is an unimportant frippery. Quite the opposite. Effective health care that extends life and improves quality of life is much more important than fripperies. That is why rich people want to spend such a large share of their incomes on it.

Point three is that my own preferred solution to this problem – and here you will notice that personal ethical opinions are coming thick and fast – is gradually to ration NHS care more explicitly and extensively, within whatever budget the electorate are willing to vote for. That would enable the preservation of a tax-funded national health service that continues to provide a fairly comprehensive package of cost-effective health services to all citizens, that is nearly free at the point of delivery. (The NHS has never been 100% comprehensive or 100% free at the point of delivery). The rationing should be done through a transparent deliberative process, and based on a range of ethical principles, including cost-effectiveness, need, and compassion. Chief among these principles, however, should be cost-effectiveness – the principle that scarce NHS resources should be used to do as much good as possible in terms of extending people’s lives and improving their quality of life.

Point four is that more extensive rationing is a better and fairer solution to the problem of preserving the NHS than more extensive user charges. User charges should not be imposed on cost-effective forms of health care, such as GP visits. Charges for GP visits deter people – especially poorer people – from seeking preventive and diagnostic care. Without effective prevention and diagnosis, health problems progress to become more harmful to the patient and more costly to the NHS. If health care is cost-effective it should be provided free on the NHS; and otherwise not. People can then pay for non-cost-effective care themselves, either out of pocket or via ‘top up’ private health insurance. The slogan “all necessary care should be free” should be re-interpreted as the slogan “all cost-effective care should be free”.

Point five is that fervent ideological debates about ‘competition’ and ‘choice’ and ‘markets’ and ‘privatisation’ are largely red herrings. What matters is that the NHS provides a fairly comprehensive range of cost-effective care to all citizens, so that everyone receives the care they need at a cost they can afford. Who owns or manages health care provider organisations does not matter directly in and of itself. Ownership and management may matter indirectly, of course – but only insofar as they impact upon the cost, quality and social distribution of health care. The direction and size of such impacts in different contexts is a factual matter, to be settled in the court of evidence and experience, rather than a matter for fervent ideological debate.

Point six is that a more extensively rationed NHS can still preserve the founding principles of the NHS. On the delivery side, it can preserve the principle of ‘equality of access’ to all necessary health care – where ‘necessary’ means ‘cost-effective’. And on the financing side, continued tax funding continues to preserves the principle of ‘solidarity’, that the strong should help the weak – the rich should help the poor, the young should help the old, and the healthy should help the sick. Finally, the NHS also preserves the benefit of financial risk protection. As was stated in the public information leaflet sent to all UK citizens at the founding of the NHS in 1948, one of the main benefits of the NHS is that “it will spare your family from money worries in time of ill health”.

In conclusion, the best way to preserve the NHS is to engage in more explicit and extensive rationing. This in turn will require more of what my Moral Maze inquisitor called “bean counting”. More evidence will be needed to inform a suitably transparent and deliberative rationing process. In particular, more evidence will be needed about the impacts of different NHS services on cost, length and quality of life, patient experience, need, compassion and dignity, and other ethically important outcomes and processes. This form of ‘bean counting’ is not an ignoble exercise. The ‘beans’ in question here are people’s lives. People’s lives matter, and if seeking to improve the length and quality of people’s lives makes me a “bean counter” then I am proud to be one.

Dr Richard Cookson, is Reader and NIHR Senior Research Fellow at University of York Centre for Health Economics

This article was first published on the Academic Health Economists’ Blog

The Academic Health Economists’ Blog

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Over the next 40 minutes or so I will attempt to explore a serious problem of resource allocation and health rationing in the NHS and, I hope, show that this problem is far from unique to the NHS but also exists in healthcare systems throughout the world. And I will end with a call for those who are leading the NHS in our communities up and down the country to play their part in leading public debate on these difficult issues.

First, a health warning. I am a practising lawyer who has spend time as an MP, government minister and over a decade acting for and against NHS bodies in a wide variety of challenging situations. My views are anecdotal not systematic. I hope they are emerge of my various experiences but they are not supported by volumes of academic research.

It is a highly appropriate time to be considering the processes of managing change in the NHS for 3 reasons. First, because the NHS has just lost – by retirement – a significant figure in Sir David Nicholson and welcomes Simon Stevens – not yet Sir Simon – who takes over as Chief Executive of the NHS Commissioning Board, known as NHS England. A change of leadership gives a window of opportunity for an incoming leader to set a new agenda. However the importance of these issues is shown by the fact that Sir David, free of the chains of office, tweeted a link to an article I wrote for the Guardian sketching out these issues, hence inviting his 4000+ twitter followers to read it.

Secondly, the NHS is also facing an unprecedented financial challenge in 2015/16. This is, “coincidentally”, the year immediately after the next General Election. As all politicians and senior civil servants know, nothing serious happens in the year before a General Election. Policy must be implanted in the first 18 months of a Parliament or the political vested interests will create political inertia and the chance for change has been lost.

Thirdly, public expectations of some public services are very different to before the 2007 financial crash. At this time the public appears to accept that public sector financial constraints mean that tough decisions need to be taken in some areas of public service. My experience – as a somewhat electorally unsuccessful politician – suggests to me that this mood music will not last. It will not be long before strident voices will assert the need for completely comprehensive and perfectly functioning public services, paid for by someone else. I exaggerate for effect of course – but there is an element of truth in the caricature.

I start by setting out the premise of this lecture: The NHS is not spending the money it gets from our taxes in a way that delivers cost effective and clinically effective healthcare for the population it serves. As a service, it has the tools to deliver effective change but key decision makers have too much timidity about using these tools to do their job properly.

Why do I say the NHS is not spending our money effectively enough? First, some of the things our clinicians do – spending NHS money – are a complete waste of money; but identifying those “things” is fraught with difficulty. A senior clinical director told me that the most expensive thing in a hospital was a pen. Doctors use pens to order tests, sign off investigations and set out clinical requirements in clinical notes. The way that our hospitals and GP practices are organised means that doctors exercise their professional discretion to do things – all of which cost taxpayers money – with little or no enforceable financial accountability for their individual decisions. There are, for example, no legal restrictions on the drugs that a GP can prescribe for a registered patient of his or her practice, regardless of the cost or potential benefit (For the details see Professor Chris Newdick’s Chapter at paragraph 1.184ff in “Principles of Medical Law” (3rd Edition) (OUP)). That is not to suggest that our doctors are routinely acting in an irresponsible way; but I do suggest that there are no clear limits on the interventions that the NHS will finance – at least at GP level – for that individual patient sitting in front of the doctor. The duty of care to the patient implies a duty to do the best for that patient but there is no clear balancing duty to make effective use of scarce publicly funded resources.

The Dartmouth Institute for Health Policy and Clinical Practice has estimated (note 2 of Bloche: New England Journal of Medicine 10.1056/NEJMp1203521) that 30% of spending on healthcare in the US is wholly ineffective. That means that money is spent on medical interventions which not only are not clinically effective but had no reasonable prospect of being clinically effective – all arising from clinical discretion. However that number must be treated with some caution because, as Lord Leverhulme once said, he knew half of his advertising was wasted, but didn’t know which half (This quotation has been ascribed to a number of people who have purchased advertising over the years).

Secondly, with the growth of evidence based medicine, there is an increasing understanding of what works and what does not work in medicine – at least at the population level and the best way to organise services to deliver the best outcomes. That growing body of understanding does not, of course, mean that medical interventions delivered in accordance with the evidence will work for the patient at the individual patient level. One of joys of life – reflected in medicine – is that we are all different but we are increasingly understanding more about how to organise services so that, with pooled disciplines and clear protocols, outcomes will improve for a greater number of patients.   The improvements in outcomes for patients with strokes in London which centralised initial treatment at a limited number of hospitals is a well-known example of this working in practice.

Reorganising the locations at which NHS services are delivered improves outcomes and saves lives in 2 ways. First, directly, lives are saved by the delivery of better organised services. Secondly, better use of NHS resources in one area of medical treatment frees up resources to be used in less glamorous areas, and thus delivers better outcomes for those patients.

What are the principles that should drive decision making? At the policy level, it seems a statement of the obvious to say that, outside proper research studies, the NHS should only invest its resources in medical treatment that is both cost effective and has proven clinical effectiveness. The NHS has developed many statements to that effect but – to pick one – this is the relevant paragraph from the NHS England Ethical framework (Principle 6 of NHS England Ethical Framework):

“The NHS Commissioning Board should only invest in treatments and services which are of proven cost-effectiveness unless it does so in the context of well-designed and properly conducted clinical trials that will enable the NHS to assess the effectiveness and/or value for money of a treatment or other healthcare intervention”

The justification for this approach is that, in an NHS where demand far outstrip supply, every decision to invest resources in treatment of one patient means fewer resources to treat other patients. The opportunity cost of treating each patient can only be justified if there are proper grounds for believing that the treatment is both clinically effective and cost effective. That may sound harsh because it proposes denying clinically effective medical treatment to someone who may be able to benefit from that treatment. However that approach is a consequence of an important principle that the NHS should value all lives equally. That means valuing the life of the patient who is not immediately in front of a doctor on an equal basis to the patient who is seeking treatment.

But this type of resource based decision making rarely happens in the NHS. The NHS continues to spend our money in ways that deliver less healthcare benefit than it could.

Let me explain by way of some examples. There has been a wide professional consensus for at least a decade that the NHS is spending too much on too many hospital buildings that the NHS cannot afford. There is an urgent need to transfer funding to community based services. However in England, 10.55% of the NHS budget was spent on general practice in 2004-2005. By 2011-2012, this had fallen to 8.5% and last year dropped to 8.39%  even though this represents 92% of patient encounters within the NHS. So policy says one thing but the “payment by results” system we have for funding NHS hospitals does not deliver the policy outcomes.

Secondly, as Dr Ben Goldacre has demonstrated by his brilliant writing which is both informed and readable (See for example the text on Midodrine at pages 138ff of Bad Pharma by Dr Ben Goldacre (2012) Harper Collins), healthcare systems around the world, including the NHS, are failing to reduce spending on drug treatments that do not work due to a combination of commercial interests. Despite that the pressure to spend more on drugs of dubious efficacy grows each year and investment in hospital buildings is forever increasing, even though the inevitable result is a reduction in the level of resources available to the community.

For this evening, I am not so much interested in whether the NHS fails to make change where the evidence suggests that better use of NHS resources could deliver better outcomes for patients but why the NHS fails to take these decisions.

The “why” is – I would suggest – much more interesting than the “whether”.   Any analysis of the mechanisms for change in the NHS must start with asking “who are the decision makers” for these key decisions?

The NHS has been divided into commissioners and providers for over 20 years (Since the NHS and Community Care Act 1990 was brought into force in April 1993). With a few exceptions, such as drugs which have a NICE Technology Appraisal Guidance for patients within defined clinical cohorts (Regulation 4(2) of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012), NHS commissioners have a wide area of discretion to decide what services to commission on behalf of NHS patients. Local Clinical Commissioning Groups and, for specialised services and primary care, NHS England have a wide discretion to decide what services should be commissioned for patients as part of NHS funded healthcare. They have extensive duties to involve patients in their decision making but, subject to that, they are the bodies that decide who gets what medical drugs. They decide whether to commission – i.e. pay for – an A & E at the local hospital, how community services should be organised and how nearly all of the local NHS is to be set up. However the GP contract has not historically placed limits on the drugs GPs can prescribe for their patients.

Subject to this constraint, the legal position in the NHS is reasonably clear. The fact that a medical intervention is likely to be clinically effective for a patient or even safe the patient’s life places no duty on the commissioners to fund that treatment for a patient (R (On the Application Of Condliff) v North Staffordshire Primary Care Trust [2011] EWCA Civ 910). CCGs are entitled to work out where their priorities lie and how the NHS funds will be spent.

But my experience is that local NHS commissioners remain very timid about making changes to the services they commission. It would be easy to say that changes to NHS services are delayed for fear of upsetting politicians who fear not being re-elected. But actually there is a more serious problem.

The real problem – I suggest – is that the concept that the “NHS is free at the point of use” is translated by the public into “NHS care should not be constrained by money”.

Despite the recognition in other areas of public services that the “cloth must be cut”, when it comes to the NHS there remains a measure of disconnect between the money that people pay in their taxes to support the NHS and the quality of service that taxpayers expect to receive. This feeling that “we cannot say it’s about the money” makes it very difficult for those concerned with NHS reform to have a sensible dialogue with the public.

I cannot count the number of times that I have read NHS consultation documents which try to pretend that proposed changes to NHS services are only all about improving the quality of services as if the issue of money and resources was irrelevant. In contrast the internal documents leading to the proposals make it abundantly clear that the drivers for change are a desire to deliver the best quality of services within the financial and human resources available.

But NHS managers are not alone because this disconnect does not just exist in the UK. Professor (and Doctor) Greg Bloche has accurately said that “withholding beneficial care to control costs is a radioactive proposition in American politics”.   Tea party darling Congresswoman Michelle Bauchmann said the proposition that doctors should take account of the cost of treatment was “an horrific notion to our nation’s doctors [and] to each American”.

However if – in my anecdotal experience – NHS managers are asked “why” they are colluding with the idea that changes to NHS services are not about making the best use of available resources, legal problems are often cited as a reason. In fact, I would suggest that the opposite is the case. The approach of the courts actively recognises and supports the need to ration health along with other public services.

In contrast to the political rhetoric, the courts in both the UK and in the United States have accepted that rationing is part of the healthcare delivery business in both the public and private sector. The Supreme Court has approved healthcare rationing and supported paying doctors to ration care. In Pegram v Herdrich the US Supreme Court said “.. no HMO organisation could survive without some incentive connecting physician reward with treatment rationing”. The Court of Appeal in this country has repeatedly held that it is lawful for the NHS to ration access to healthcare. As long ago as 1997 Lord Bingham said in R v Cambridge Health Authority ex parte B ([1995] 1 WLR 898):

“I have no doubt that in a perfect world any treatment which a patient, or a patient’s family, sought would be provided if doctors were willing to give it, no matter how much it costs, particularly when a life was potentially at stake. It would however, in my view, be shutting one’s eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet…. Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make. In my judgment, it is not something that a health authority such as this authority can be fairly criticised for not advancing before the court.”

That approach has recently been approved in a series of recent decisions, including R (Condliff) v North Staffordshire PCT  ([2011] HRLR 38, a case in which I appeared for the NHS body.)which decided that the human rights of the patient under article 8 of the ECHR were rarely if ever engaged in medical rationing treatment decisions.

Further commissioning decisions are public law decisions. The House of Lords has held that, save in a case where it is misfeasance in public office with its incredibly high hurdles including showing malice, NHS commissioners cannot be sued for damages for public law decisions (O’Rourke v Camden LBC [1988] AC 188). Hence, at least in the UK, it is not legal constraints that hold back NHS reform.

So I return to the central problem which – as a non-doctor I diagnose as – there has been a fear amongst NHS leaders that the NHS is a public service where the public do not have an appetite for reform. Those who make decisions about public services rightly feel themselves to be accountable to the public for these decisions and, at present, fear the public have no mood to accept the types of reform that are essential if the NHS is to achieve its twin objectives of (a) delivering the best care it reasonably can to vulnerable patients and (b) remaining within a largely static budget. The losers from this state of affairs are vulnerable patients who don’t get the treatment they need because it is spent on treatment that does not work, on hospitals that are not justifiable or services of marginal benefit.

But perhaps we are at a tipping point. The in-coming NHS England Chief Executive, Simon Stevens, said last week that NHS England wanted local CCGs to come up with sustainable and future proofed local health systems, and then tellingly said:

“If you’re going to get a sustainable and future proofed local health system, what are the longstanding assumptions and constraints we’d need to say goodbye to?”

The second reason we might be at a tipping point is finance. The NHS is facing a funding gap in the next few years up to 2021 of between £30Bn and £12Bn depending on whose estimate you accept. As the Kings Fund said in their impressive interim report “A new settlement for health and social care” published in the last few weeks:

“.. the NHS faces a severe and continued financial challenge …. there are some intense short-term pressures to be dealt with and some long hard term and unavoidable choices ahead”

The NHS has had an expanding budget for almost all of its life, but that luxury is no longer going to be available.

The third reason that changes need to be made is demographic. Everyone knows that we are getting older as a nation, and our services need to be organised to deliver care for the next generation rather than the last generation. But we also have far more people with long term conditions surviving into adulthood. Barely half social care spending is spent on people over the age of 65 (Kings Fund Report at page 12)  and there are more people under the age of 65 with 2 or more serious long term medical conditions than those over the age of 65. The Better Care Fund will kick in in 2015 to tie resources to better integration of health and social care, leaving much less in the NHS kitty for traditional acute care.

So why when there is an impeccable health economics case for change in NHS services, is there no public appetite for that change? That is not a straightforward question. Nigel Lawson observed that “the NHS is the closest thing the English have to a religion”. Yet, as with all religions, informed debate is clouded by myths.

The first myth is that the problems of the NHS could be solved with more money. Spending on the NHS rose 7 fold between 1949 and 2002 (allowing for inflation) and has continued to rise since then. More money might delay difficult decisions or cushion the fall, but more money of itself is not the answer. A high proportion of NHS acute care is provided to the frail elderly and, with an aging population, we need maybe 4/5% additional resources each year to carry on delivering the same level of services to our population. Although numbers of patients attending A & E are not rising dramatically, an NHS England report noted:

“There were 10.6% more emergency admissions in 2012/13 than in 2009/10. There is general consensus (though it is hard to identify the evidence) that patients presenting are more ill and hence more likely to need admission and have longer stays”

New, expensive drugs are coming off the pharmaceutical production line every year, offering marginal improvements on existing drugs but at a much higher cost. I could go on but please be assured that we can never spend “enough” on healthcare because the more we spend, the more demand there will be for state funded healthcare.

The second myth is that investment in the NHS is the best way to improve the nation’s health. Sorry but this is just not true. According to the WHO, around 80% of deaths from the major diseases, such as cancer, are attributable to lifestyle risk factors such as excess alcohol, smoking, lack of physical activity and poor diet.   Extra spending on medical treatment for people with preventable diseases is not top of the list of effective interventions. So if we care about the health of our people, extra spending on the NHS is not necessarily the right answer. It may be on rare occasions but prevention is better than cure.

The third myth is that the NHS equates to hospitals, and that the NHS delivers most of its care in hospitals. This is also simply not true. 92% of NHS care is delivered by GPs or in the community.   A significant proportion of NHS money is spent on managing people with long term conditions. However most of this case is or should be delivered outside a hospital setting. And the paradox is that the better that long term conditions such as COPD or diabetes are managed in the community, the less unplanned care has to be provided in hospitals.

But the NHS only really makes savings if it closes or substantially scales back hospital buildings. Removing one service from the acute sector but leaving the building and staff in place will simply result in those staff delivering care in those buildings to other groups of patients, with little if any overall saving.

These “myths” have made it virtually impossible to have a sensible discussion about what drugs or medical treatments the NHS should fund and how we should change the footprint of NHS buildings to get better value for money. We have NICE in the UK and US has the Patient Centred Outcomes Research Institute. But they are underfunded, dominated by supplier interests and can only scratch the surface of the rationing debate.

A nationally set list of drugs and treatments that are funded and not funded across the whole of the NHS is probably an expensive paperchase that will get nowhere apart from endless legal challenges. As the Kings Fund Report noted:

“Experiences from New Zealand, Chile, the US state of Oregon, Spain, Israel and Germany are not encouraging. There have been problems over enforcement and perverse outcomes in some cases. One of the best-known attempts to ration care was the Oregon approach that ranked treatments by priority and then set a cut off decided by the budget available. It led to treatable cancer being excluded from the benefits package”

That approach is, in any event, a non-starter in a system where politicians are the ultimate decision makers. The line “this was a locally made decision” has been seen as essential to insulate our politicians from disappointed patients.

It is an uncomfortable truth that, in a modern democracy, politicians are only able to “do politics” in the space in which public opinion allows them to operate. Politicians rarely lead public debate outside that legitimate area of public opinion and then they are described by the Sir Humphreys as being “brave, Minister”, with all its connotations of a lack of electability.

So who can move the space for public debate about change in the NHS? The answer is that there are many candidates and some are stepping up to the plate. This is the classic area where NHS England have the chance to lead – and their independence from government precisely creates the space that allows them to flourish. Special credit must go to NHS England’s medical director, Sir Bruce Keogh, for his work on the future shape of Accident and Emergency services even though NHS England is, of course, not the primary decision maker for commissioning these services. I may have disagreed with him about Lewisham but overall he has been brave on the future shape of A & E care.

The Medical Royal Colleges have a key role to play, as to academics those who work with the NHS on a daily basis in fora such as this.

And now – ladies and gentleman – I get on my soapbox and make no apologies for it.  This essential debate is most important at the local level because, in a federated service like the NHS, delivering change is a bottom up process. That means the local NHS leaders – which primarily after the Health and Social Care Act 2012 means the GPs who sit on the local Clinical Commissioning Groups – have to make the case for change locally.

And that cannot happen unless those who make NHS decisions locally invest far more time, energy and resources in educating the public about the choices that need to be made and actively lead local debate.

Local NHS leaders need to explain some home truths as opposed to colluding in the myth that health is too important to be about money. If my treatment, my A & E unit or my maternity unit is allowed to be seen to be too important to allow money to be mentioned, it is someone else’s elderly care services, mental health services or respite care that will pay the price.   Taking on the role of being a local commissioner means that these GPs have to shout loudly that not every cancer drug can be financed, not every small A & E unit should remain open and many community hospitals are totally uneconomic.   It is their job to drive local public debate in order to counter the myths of objectors waving shrouds.

To date the role of being the “big bad wolf” who cuts A & E or maternity units has been left to faceless NHS managers and the occasional brave public health doctor, or even worse accountants within the Trust Special Administrator process. But the financial challenges facing the NHS are now so vast and so close that the NHS has an urgent need to move services into the community in order to support the growing elderly population. These challenges are urgent and the NHS needs unprecedented levels of structural change.

As a lawyer you would expect me to end with the law. The legal duties on commissioners under the NHS Act require every part of the NHS to engage with patients but in particular local CCGs. NHS managers have, by and large, been rubbish at genuine patient engagement, often because it is an afterthought. The traditional NHS way is to make reconfiguration or drug rationing decisions first and then consult the public afterwards. Not only is this now unlawful due to the wide duties under section 14Z2 of the NHS Act 2006, it shows a short-sighted approach to the local politics and leads terrible decision making because supplier interests dominate the decision making process.

The public will only believe change is needed if they are trusted with all the data, and all of the options are openly debated at an early stage. But they also need to be repeatedly told as part of that consultation process that “we can only spend the money once”. To give credit, NHS England is trying hard to lead debate but the real debate needs to be led at a local level. The job of GP commissioners is to be community leaders for change. It means facing the local press and the radio, and crucially getting into the debate ring with the vested interests, including aspirant politicians, who are well-financed and will fight dirty. NHS commissioners need to fight back, holding on to the moral high ground at all costs and exposing the real costs of the choices that need to be made.

If the local NHS does not invest in and lead public debate, political “space” will never be created to give politicians the opportunity to do the right thing. It’s a public service and commissioners must engage with the public – the great unwashed as they were referred to in previous generations.

If local commissioners do not lead the debate on the reasons for NHS changes, elected politicians will have to oppose clinically required change. That will slow the change process or even prevent change happening.   And the losers will be those with mental health conditions, those suffering from chronic conditions and the frail elderly patients who don’t get the services they need because they are still being wasted on too drugs of marginal benefit and too many hospital buildings.



[8] See Regulation 4(2) of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012.


This article was first published on David Lock’s blog


This is  Labour Party  NHS Check 12  originally published by Labour’s Shadow Health Team in October 2013

  • Survey Reveals NHS On Road To Us-Style Healthcare
  • New Evidence Of NHS Hospitals Charging For Essential Treatments That Were Previously Free And Still Free Elsewhere
  • Thousands Of People Missing Out On Essential Treatment As David Cameron’s Postcode Lottery Grows
  • Labour Calls On The Government To Order An Immediate Review Of Rationing In The NHS And To Intervene To Stop Rationing On Grounds Of Cost

This report shows that hospitals are beginning to charge patients for some treatments which were previously free on the NHS and continue to be freely available in other parts of the country.

A Labour survey has revealed the details of punitive new restrictions put in place by Clinical Commissioning Groups. This follows an investigation by the British Medical Journal which found that as many as 1-in-7 of the new bodies have increased the rationing of treatments.

Last year, Labour found that almost half of Primary Care Trusts were restricting routine treatments. Despite warnings from Labour and professional bodies, the problem has worsened – leaving patients facing an agonising decision of going without treatment or paying for private care.

Increases in rationing are leading to a growing postcode lottery

Labour’s Shadow Health Team surveyed all Clinical Commissioning Groups following reports that increasing numbers of patients were being denied GP referrals for treatment previously accessible on the NHS.

An investigation by the BMJ in summer 2013 revealed that in the last six months, since they took control of the new NHS in April, 27 CCGs of 195 CCGs responding to the survey – close to 1 in 7 – had introduced new treatment restrictions. These included 8 CCGs restricting treatment for Foramen Ovale for recurrent migraines, 3 CCGs restricting hip or knee replacement surgery, 2 CCGs restricting cataract surgery, 4 CCGs restricting Caesarean for non-medical reasons, 2 CCGs restricting treatment for carpal tunnel syndrome, and 8 CCGs restricting therapeutic use of ultrasound. The full list of restrictions is listed in the table below.

  • Asymptomatic gall Stones 9
  • Foramen Ovale Closures for recurrent Migraines 8
  • Therapeutic use of ultrasound 8
  • Ganglions 7
  • Hallux Valgus 6
  • Skin Lesions 5
  • Caesarean for non medical reasons 4
  • Tonsilitis 3
  • Knee Surgery/replacements /hip 3
  • Varicose Veins 2
  • Cataracts 2
  • Carpal Tunnel Syndrome 2
  • IVF 1
  • Dupuytrens Contracture 1
  • Myringotomy 1
  • Hysteroscopy 1
  • Trigger Finger 1
  • Dilation and Curettage 1

Labour’s Freedom of Information survey enabled investigation of the consequences of increasing rationing for access to treatment. It revealed wide variation across the country for the same treatment, with some NHS bodies setting down extra conditions before they fund the treatment. For example:

  • Patients in South Reading are required to lose more of their eyesight before they receive cataract surgery than patients in South Kent who qualify sooner.
  • Patients in the Black Country are forced to prove greater levels of pain and attempted weight loss before qualifying for knee replacement surgery, whilst South West London will fund patients in lower levels of pain.
  • Likewise for hip surgery, South West London and Stoke on Trent and North Staffordshire have different pain criteria.

There is a legitimate debate to be had about the effectiveness of particular treatments or their use in particular contexts. But Labour FOIs have added to the growing evidence that some patients are being unfairly denied access to vital treatments.

And as the next section shows, it seems that some hospital trusts are now introducing new private care options for treatments that are being rationed in the local area.

Postcode lottery in cataract surgery


In the 1990s, it was not uncommon for patients to wait up to two years for a cataract operation. The previous Labour Government took action to address this delay. It included issuing good practice guidance which established eligibility criteria and ensured patients should have access to surgery.

The guidance stated that patients should be referred for surgery by their GP if a cataract leaves them with reduced vision or if it negatively impacts their quality of life.

The guidance did not establish visual acuity thresholds – the measure of vision relating to how far a person can read down an eye chart – before a patient qualifies for treatment.

The Royal College of Ophthalmologists cataract guidelines published in 2010 reinforced this guidance.

Hospital Episode Statistics

The latest figures show that the number of elective admissions for cataract surgery declined between 2010/11 and 2011/12 by over 5,000.

These figures are precisely the opposite of what experts would expect. The RNIB have said “We would expect to see both the number of operations and spells to increase as the population ages and demand for surgery rises.”

The figures suggest that since 2009/10, PCTs and CCGs have been introducing restrictions to cataract surgery.

Clinical commentary and patient impact

“Such absolute restrictions have no clinical imperatives. There is now evidence that early cataract surgery is beneficial to patients, and the over reliance of Visual Acuity as a measure is outdated. Delaying surgery leads to more ophthalmic complications, making surgery more risky, and in the event proves costlier”

CCG referral policies – the variations

Labour has uncovered evidence of CCGs who have implemented new restrictions on cataract operations in the last year. Earlier this year, the RNIB found widespread evidence of CCGs implementing restrictive commissioning policies that are not in line with either Department of Health guidance or Royal College guidance.

South Reading CCG’s commissioning policy states: “cataract surgery is only routinely commissioned for patients who, after correction (eg, with glasses), have a visual acuity of 6/12 or worse in their cataract-affected eye.”

However, Brighton and Hove CCG have no arbitrary restrictions on cataract operations and surgery is based on clinical need.

Postcode lottery in knee replacement surgery

Clinical commentary and patient impact:

“Orthopaedic operations such as knee and hip surgery can be due to a traumatic injury such as a sports injury or accidents, or a degenerative disease such as arthritis. Such rationing would aim to discriminate against the latter mainly, as these are chronic conditions. But the disability, pain, reduced social mobility, will cause a lot of suffering to these patients.”

CCG referral policies – the variations

NHS Black Country Cluster will only operate on patients with a BMI of 40 or over if they have documented proof that they have participated in a “comprehensive weight management programme” of at least 6 months duration prior to surgery.

All other patients (ie those with a BMI of less than 40) are now required to meet a range of other criteria before they become eligible which include:

  • Conservative means (e.g. Analgesics, NSAIDS, physiotherapy, advice on walking aids, home adaptations , curtailment of inappropriate activities and general counselling as regards to the potential benefits of joint replacement) have failed to alleviate the patients pain and disability
  • AND Pain and disability should be sufficiently significant to interfere with the patients’ daily life and or ability to sleep/patients whose pain is so severe
  • AND Underlying medical conditions should have been investigated and the patient’s condition optimised before referral

In contrast, Kingston CCG will fund elective surgery on any patient who has an Oxford Knee score – the questionnaire on function and pain – of less than 20 on the 0 to 48 system or greater than 40 on the 60 to 12 system.

Postcode lottery in hip replacement

Clinical commentary and patient impact:

“ Restrictions on hip replacement could well discriminate against older people, for whom hip surgery is not cosmetic but essential to relieve pain, further worsening of their condition and also major social handicaps if surgery did not happen.”

CCG referral policies – the variations

Stoke on Trent CCG will only commission hip surgery if a patient scores 20 or under on the Oxford Hip Score (the equivalent questionnaire).

Merton CCG will fund surgery for patients with a score of 26 or under.

However, Hammersmith and Fulham CCG’s referral policy makes no reference to the Oxford Hip Score.

NHS hospitals charge for rationed treatment

In October 2012, the Government gave NHS Foundation Trusts the freedom to generate up to 49% of their income from private patients. A Labour Freedom of Information request to hospital trusts, on the income generated from private work in the first year of the new arrangements, reveals a significant increase. In 2012/13, hospitals generated £434 million – an additional £47 million on 2010/11. Meanwhile, trusts’ projections show that they envisage this will increase by a further £45 million to £479 million this year.

Labour’s research has uncovered examples of treatments that are now rationed by the GP-led bodies and charged-for by hospitals– so-called ‘self-funding’ patients. This is where NHS hospitals offer to treat people as private patients but charge “NHS rates”.

  • In the last six months, James Paget University Hospitals NHS Foundation Trust has started offering self-funding options for Ophthalmology. Meanwhile, the local CCG NHS Great Yarmouth and Waveney has a restrictive commissioning policy for cataract operations – out of line with Department of Health and Royal College guidance.
  • Earlier this year, Southampton CCG was “red rated” by the RNIB – labelling its policy on cataract operations “very restrictive”. The local trust, Southampton University Hospitals, has a self-funding option in place for treatment in Ophthalmology services. Private patients can choose to benefit from high quality eye care by local NHS consultants at Southampton General Hospital. The hospital trusts website boasts: “Fewer non-urgent services can be paid for by the NHS but we know that patients still want to see our expert staff and be treated within the advanced care environment of a specialist teaching hospital. We offer the full range of consultations, investigations and treatments that you would expect from a specialist hospital […].”1 Also adding: “Our premier cataract service offers a new option, between the traditional private sector and the NHS, bringing private healthcare within the reach of many more people. This service offers you the option of cataract surgery even if your vision is better than the current level required for NHS surgery. We offer surgery when you feel you need it.”
  • Warrington and Halton Hospitals NHS Foundation Trust now offers a self funding option for removal of varicose veins. Their website states: “There are some treatments provided in the past that may no longer be accessible through local NHS funding… However, we know that many patients still want to have these procedures with us. In order to give our patients choice around their care, we have developed the MyChoice service. This allows you to pay (self-fund) to have these procedures with us at the standard NHS price. Private health insurance may also cover the cost of these procedures with us.”
  • Chelsea and Westminster hospital offer self funding options on “All medical and surgical specialities.” NHS North West London have tightened their criteria on a number of treatments in the last year. In June 2013, they updated their policies on removal of benign skin lesions, dupuytren’s contracture, carpal tunnel syndrome and cataract surgery.

In order to address the issue of where the NHS reforms may lead, and qualify the argument of the status quo of implicit priority setting of care combined with the Health and Social Care Act reforms, an increased integration with market mechanisms through greater use of private sector services, and the already existing financial pressure that the NHS is under will lead to care being rationed within the NHS, it is useful to use the example of the Oregon Health Plan, where prominence was given to the priority setting of care. Whilst the demographics are different, as is the political system, as a process of formulating healthcare policy, the Oregon Health Plan has many lessons that can be taken away, especially for the NHS.

Whilst it has been argued that the Oregon Health Plan, created in 1994 to address the state’s Medicaid bill, was an attempt to explicitly prioritise care, and then use rationing processes for such care, it is important to consider that such rationing does not appear to have actually occurred. As will become clearer, this is a key example for the difference between priority setting and rationing, which does not appear to be widely discussed in the debate. There are two uses for the Oregon Health Plan in this discussion: firstly, a system in which priority setting was made public (with the theoretical end result being rationing of care); and secondly, the formation of a policy that had wide public involvement.

What is the Oregon Health Plan? – Background

The Oregon Health Plan (OHP) was the state of Oregon’s Medicaid programme pioneered by John Kitzhaber and approved by the Clinton administration to be implemented in 1994. The policy sparked a debate around healthcare both within the state and nationally, and preceded reform in other states. The explicit priority setting that occurred resulted in 10,000 medical procedures being categorized  and then each respective condition being ‘paired’ with a treatment, of which there were 709 ‘condition/treatment pairs’. Up to this stage, this is priority setting. Where the (explicit) rationing, in theory, took place was that the Oregon legislature placed a line on the list, where the state would cover all condition/treatments above the line, and not fund those below the line.

Rankings of the 17 service categories in the Oregon Health Plan.

Rankings of the 17 service categories in the Oregon Health Plan.

The idea behind such a policy was to expand the number of people who were eligible for Medicaid, and therefore reduce the number of uninsured people, by reducing the number of services that would be covered; more people would be insured, but less services offered. The OHP brought coverage to an additional 100,000 people (an increase in the Medicaid population of 39%), as well as the existing 250,000 people who qualified for Medicaid.

The formulation of the list incorporated a cost-benefit analysis, Quality of Well Being (QWB) scale, as well as taking into account public opinion on the value of healthcare. Such public consultations took place through “professionally conducted town hall meetings and public opinion surveys”, which, due to their popularity, received consistent media coverage. A wider debate also took place in an attempt to define what should be contained within healthcare provision for the state as a whole, as well as making public the rationing processes already used to prevent uninsured and underinsured people getting care.

Given that most hospitals have a legal obligation to treat uninsured patients in an emergency, leading to instances where the provider does not receive payment, the OHP had the support of hospitals, as a way to reduce this financial burden, as well as attempting to prevent “inappropriate visits” to emergency facilities. Funding for the policy was continued in 1996 with a 30-cent rise in tobacco tax, allowing further expansion of the policy. The Health Evidence Review Commission is still responsible for maintaining the prioritized list of services.

Analysis of Oregon Health Plan from literature – Did it work?

The significant talk of rationing did not actually turn out to be the end result, as there was no widespread rationing of care, and it has been argued that the outcome was less than what the policy makers had envisioned. For instance, it has been stated that the current system has become more substantial than before the OHP, especially for mental health services, and dental care – which can be seen as more generous than private insurance. Additionally, transplant coverage – one alleged rationing target – was more generous after the rationing, than before.

Interestingly, the original Bill that contained the OHP also stipulated for an employer mandate, similar to the Patient Protection and Affordable Care Act 2010, in a bid to reach universal coverage in the state, but this was not allowed under federal law and no exemption was made from the Employee Retirement Security Act (ERISA). Such inaction for an exemption led to 340,000 remaining uninsured in 1996.

Although critics of the OHP highlighted the rationing element, many who were involved in the policy making process appear to have “championed” the process, as well as the positive outcome for the expansion of healthcare provision.  There are also wider economic lessons that can be taken, as the OHP policymakers initially looked at using cost per quality adjusted life years (QALYs), but did not find the data conclusive.

Whilst people have questioned the fairness of focusing on Medicaid patients for the prioritisation of care, the OHP and its explicit list of care has been useful as a process of defining what healthcare is available, and due to the public involvement, was testament to such public debate.

Politics of the Oregon Health Plan

Although the OHP appeared to be controversial initially, the fact that the policy was able to remain in place is telling of the public involvement that was utilized throughout the development of the policy. It can be argued, therefore, that a significant aspect of the policy was its very existence, especially when considering the toxic political environment that surrounds healthcare policy within the US. In addition, although it received the title of a “policy experiment”, the OHP was able to carry with it political momentum through using priority setting as a basis.

By sponsoring the original Bill, Kitzhaber took a calculated political risk, but he had a firm belief in increased coverage, as is telling in his response to being asked about the OHP appearing to ration healthcare for Medicaid patients, those with lower incomes (a claim that was dispelled within three years of the OHP), as he argued that the “‘Hippocratic Oath needs to be adapted to the 20th century’”, which has been interpreted to mean that a doctor is not simply there for the individual patient, but that there must be wider societal considerations taken into account also. The policy of combining health research and democratic participation was described as an “unusual marriage” between the two – continuing to highlight the innovativeness of the OHP.

A wider commitment made by the OHP and its development as a policy was that healthcare was seen as a process by which investment can be made into the wider economy, based upon the principle that healthier people will lead to a more productive population and economy.

Criticisms of the process

An obvious criticism of the detail of the OHP is the content of the prioritized list itself; it does not take a qualified doctor to be able to appreciate the complexities within healthcare and the ensuing difficulties that would be apparent if a limited list of treatments were to be created. The argument has therefore been made that setting out to produce such a list in itself is defying “common sense”. Other criticisms have related to the morality of prioritizing healthcare treatments in such a way, as well as there being other areas of healthcare that could be rationed, such as administrative processes.

cost-effectiveness process for the Oregon prioritised list

Evidence based assessment, and cost-effectiveness process for the prioritised list

Lessons for priority setting

As the objective of the OHP was to utilize priority setting in a way to increase coverage, it is useful to consider any lessons for priority setting as a whole that can be offered. For example, as was found in the OHP, once the line had been imposed so that the services below the line were to be rationed, there was opportunity for the system to be “gamed”, by doctors using conditions that were above the line, even if the patient has an illness that is below. It was also found that the OHP did not take out the decision of the doctor, as in certain circumstances care was authorized, even if the particular treatment fell below the line.  The main lesson from the OHP, I would argue, in terms of the debate around priority setting is that making the choices explicit and using a systematic process can have, in theory at least, a more desired outcome than using an unsystematic, inconsistent, “ad-hoc” approach.

Lessons for the NHS

There are strong arguments that the experience and processes used are of relevance to a “universal system such as the NHS.” For instance, a comparison made at the time relates to the North East Thames Regional Health Authority, where a list of services to be excluded from NHS treatment was produced, but with very little information made public about the process of making such a list – in stark contrast to the OHP therefore where the process was as open and transparent as the final list was.

Such a systematic process of understanding the priorities that society has for healthcare, as was followed in the OHP, has not yet led to a widespread debate in England, although there have been numerous attempts at increasing patient involvement within the NHS, with the latest being HealthWatch.

The NHS has numerous challenges, and arguments can be made that it is a very different system in 2013 than it was when it was created in 1948. What has remained consistent however, and what will remain consistent after the implementation of the HSCA is that treatment will be provided free at the point of use. Patients will not be sent a bill following treatment that they have carried out, and patients will not be met with questions about insurance before they are asked about their medical requirements.

National Health Service reforms and the Oregon Health Plan

“The astonishing fact is that Bevan’s vision has stood both the test of time and the test of change unimaginable in his day. At the centre of his vision was a National Health Service, and sixty years on his NHS – by surviving, growing and adapting to technological and demographic change – remains at the centre of the life of our nation as a uniquely British creation, and still a uniquely powerful engine of social justice.”

Gordon Brown

Analysis of the Health and Social Care Act and the Oregon Health Plan

The uniqueness of the NHS to England and the UK as a whole is an example of the relative difficulties associated with using lessons from healthcare systems that operate in one country, and applying them to another country. It is however useful to look at the OHP and take away any lessons, particularly in relation to priority setting that the NHS could benefit from.
It is therefore necessary to look at the OHP in a theoretical manner, as opposed to looking at the policy with a view to replicating such a policy in England. The example of the OHP therefore, where priority setting was used to prioritize publicly funded healthcare, the way in which it was completed, and crucially the line that was drawn on the list, is of real value to the debate around healthcare reform.

Had the results from the OHP turned out as was most feared, that those treatments under the line would be strictly rationed, this would have clearly been a negative outcome for some patients who have conditions on the lower end of the prioritised list, such as sexual dysfunction.

A significant difference between the OHP and the approach taken by the NHS  is that priority setting and rationing in the OHP was completed in an explicit manner, and the NHS in a more implicit manner. In terms of transparency therefore, there is clearly a difference between the two processes and the way in which each were completed.

rationing in the NHS

I am going to use the lessons from the OHP, and bring them together with the NHS reforms, to argue that assuming that the NHS maintains the status quo of implicit priority setting of care; combined with the HSCA reforms of an increased integration with market mechanisms and competition through greater use of private sector services; and the already existing financial pressure that the NHS is under, will lead to greater rationing of care within the NHS.

I will take each aspect in turn and assess why, when combined, these factors will lead to greater rationing within the NHS.

Implicit priority setting

The status quo of implicit priority setting within the NHS allows there also to be implicit rationing. If there is relatively little public awareness about the services that are rationed, then it is easier for such decisions to be made, out of the public domain. There are many priority setting policies in place within the NHS, but given the implicitness of these, there is very little awareness of what services are subject to rationing. Whilst there is an argument stating that currently within the NHS there is a mix of both priority setting, and rationing; it is the latter that creates the most cause for concern of healthcare provided within the NHS in England.

Health and Social Care Act reforms

Given the significant role of GPs on Clinical Commissioning Groups contained within the HSCA, a substantial concern is the lack of experience that GPs may have with the commissioning role within the NHS, and the potential that this has to negatively affect the commission of services.

Considering the introduction of AQP, as well as the increased role of market mechanisms and a rise in private providers within the NHS, it is likely that there will be lower levels of public accountability within the NHS. This is due largely to the levels of public accountability that have typically been found within private sector services being less than public sector services.
Whilst private involvement with the NHS is not inherently negative, in a controlled and regulated manner, having such an increase in the number of private providers will lead to less accountability. There is also a wider, deeper, issue here in relation to private companies and their involvement within healthcare. A public service such as the NHS is not the place for significant involvement of private companies that are susceptible to placing profit motivations, and shareholder interests, before public service.

The increased local autonomy that is contained within the HSCA, primarily through the role of GP commissioning is another contributory factor to greater rationing within the NHS. This is especially so when considering the possibilities that this opens up for GPs and ultimately there being a case where GPs on a CCG choose to commission services from a provider which they run themselves, on a private basis.

Nicholson Challenge / QIPP

The existing financial pressures that the NHS is facing, even before the HSCA reforms were passed, could theoretically contribute to a rationing of care due to the lower levels of funding available to the NHS for services. There is however the potential that if the savings are made through decreases in administrative – non “front-line” – aspects of the NHS, then this could not impact rationing of care. The overall financial pressure upon the NHS is however likely to have a negative impact upon services, and such an impact will not just be felt in the administration side of the NHS.

Why this means greater rationing within the NHS

An obvious counterargument to the above argument and there being a rise of rationing is that, especially in relation to the Nicholson Challenge, such efficiency savings may indeed be made to parts of the NHS that are not “front-line”, and may not necessarily amount to the rationing of care that people receive. There are however, only so many efficiencies that can be made on so-called back-office administration. Given the relative importance of such aspects of the NHS, for example the storage of patient records, making efficiencies in one area of the NHS is likely to impact upon another.

A counterargument in support of the HSCA reforms could be made on ideological grounds that the market will always prevail, and that the market knows best. Such a notion may indeed be the case within the motor industry, or the insurance industry for example. Whilst such a comparison might be useful in factors such as staff productivity, discussed earlier, there is very little comparison that can be made across different sectors. For example, if there is a decrease in the number of cars manufactured owing to efficiency savings within the supply chain, or within the factory; or less insurance products sold because of a reduction in sales staff, this will not have a detrimental impact upon the customer. In healthcare however, given its sensitivities, the impacts of rationing can lead to a decreased accessibility to healthcare, and therefore to a lower level of healthcare available to the customer; the patient.

How the HSCA leads the NHS in the direction of the Oregon Health Plan.

Following the argument that a maintenance of implicit priority setting, the HSCA reforms, and the Nicholson Challenge contributing to greater rationing within the NHS, it is useful at this point to relate such an argument to the OHP.
Such an argument would therefore state, taking the outcome of the OHP in a theoretical sense – that is, the explicit priority setting leading to widespread explicit rationing of care – this is not too dissimilar to where the future of the NHS might lie if the implicit priority setting, HSCA reforms, and the Nicholson Challenge are maintained.

Pressures leading to NHS rationing

Schematic diagram of the relationship between priority setting, HSCA reforms, and the Nicholson Challenge within the NHS, the outcome of rationing within the NHS, and the relationship with the OHP.

Such an argument is based upon factors – implicit priority setting, HSCA reforms, Nicholson Challenge – that are actually happening within the NHS. To offer a perhaps more optimistic outlook, however, it is useful to refer back to the OHP, and the lessons that can be taken away, and used within the NHS.

Where the OHP values can help the NHS

Taking the complete approach from the OHP and replicating it in England will not work, nor would the vast majority of the processes that were used, as has been previously discussed. There are however two main elements that are of significant use for the NHS: explicit priority setting, and widespread public debate.

At present priority setting within the NHS is very much implicit with little information actually made public about the services that are provided by the NHS. Creating an explicit list of the services that the NHS funds could, therefore, be a step in the right direction for creating transparency within the NHS. Perhaps more importantly, such a list could also help to educate the public about what the NHS provides and would in theory make it more difficult for healthcare to be rationed because of the greater public accountability.

It would be counterproductive for there to be a line placed on such a list, as in the OHP case, as this can create an incentive for the private sector to provide services that the NHS will not cover. Having a list at each CCG would be a starting point, with a view to there being a national explicit list of the services provided by the NHS in England. Having different lists for each individual CCG is what was discussed earlier as the disparities found across the nation in terms of the postcode lottery. Whilst this is not preferable, having an explicit priority setting process for healthcare provided by the NHS would be beneficial as this would make rationing of care clearer. Therefore, once such clarity has been reached, there is a greater chance of there being a less widespread postcode lottery.

Following on from such an explicit list, as was an integral feature of the OHP, having a widespread public debate and consultation about the priorities that the public has for healthcare, and perhaps health in general, would benefit the NHS. Dependent upon the outcome of such a debate, this may place greater pressure on future governments to limit further reforms within the NHS.

The public involvement with the healthcare reforms of the OHP, in appearance at least, seems to have sparked a debate within Oregon as to what it is the public demand for their healthcare. Whilst the OHP was addressing Medicaid, and not the whole population, it is interesting to note that such a debate does not appear to have ensued in the UK with the HSCA. The debate that has been associated with the HSCA has been relatively complex and confused given the relative difficulty in understanding the HSCA reforms and amendments in the passage of the Bill. Additionally, any debate that has ensued has largely been related to what service should be provided by a so-called National Illness Service, as opposed to a wider debate about the health priorities of the country. Whilst the debate around the OHP appears to have also focused upon the role of healthcare from a similar perspective, it is positive to note that the OHP provoked such a debate within the public.

The future of the NHS

The increased local autonomy contained within the HSCA reforms, and the further integration of market mechanisms and competition make up some of the most significant aspects of the HSCA. In order to use the lessons taken from the OHP, and apply them in a constructive manner to the NHS, there is a case that can be made for the NHS adopting a more explicit priority setting process. This is especially so when considering that CCGs will likely face similar priority-setting issues; having such a list of national principles would therefore be beneficial.

Such a system could involve creating a list of principles that determines how money in the NHS is spent; or a list of treatments provided should be created, and prioritised, but – crucially – without the rationing line that the OHP had. The former appears more politically attractive given the public perception of the NHS, whilst the latter appears more radical, and therefore more politically challenging.

Although creating an explicit list would not “necessarily increase the public knowledge of entitlements”, it could however lead to a greater public debate, which would certainly be a positive development. There are suggestions that a negative list – what the NHS should not provide – could be adopted using existing NICE guidelines. Whilst this may indeed lead to a widening of the debate, if this were to be introduced there would be a greater incentive for the role of private companies to fill the gap – on the assumption that such treatments would be profitable.

An additional, perhaps more practical recommendation, is to use nudging to encourage providers and clinicians “towards clinical and cost-effective care” Such a dilemma can be described as politically paradoxical because of the potential progress that can be made, as was seen with the OHP, but also, and perhaps more relevant to the NHS, the clear political risk that creating an explicit list would require.

Given the maintenance of implicit priority setting within the NHS, as has been discussed, this acts to amplify the impact of the HSCA reforms and the impacts of the Nicholson Challenge upon the NHS. Addressing the status quo of implicit priority setting could therefore lead to a wider public debate, as was seen in Oregon, with the potential to lead to an even stronger NHS. Taking the public with them, politicians and policymakers therefore have an opportunity in which to create a widespread public debate about the NHS – which has the potential to benefit an NHS that maintains to be for the people.

Ian has been working with us for the last year and this is part of his undergraduate dissertation submitted to the University of Sheffield.

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What is rationing / priority setting?

Rationing and priority setting are referred to somewhat interchangeably within the literature, with little focus on the actual terminology, and more upon the outcome of priority setting and its impact upon healthcare.  Priority setting, “a more or less systematic approach to distributing the available resources among demands”, can lead to rationing of care, defined as “a failure to offer care, or the denial of care, from which patients would benefit”. Rationing can also be defined as any form, either implicitly or explicitly, of allowing people to “go without beneficial services” due to constrained costs.

A more identifiable form of rationing involves denial of treatment due to cost-ineffectiveness –although not adequate in the eyes of the public – as opposed to rationing where there is a shortage of medical staff at a particular moment in time.  There is also rationing by waiting or delays in treatment, which appears as less visible than complete denial of treatment. Whilst all forms of rationing might not impact care, there is an issue of transparency of the healthcare service provided. Only if there is acknowledgment of rationing therefore, can “fair and reasonable priorities and standards be established”.

The role of priority setting and rationing within the NHS

Published in 2009, the NHS Constitution defines the NHS as providing a “comprehensive service”, but has not actually set out what the NHS does and does not provide. Given that the NHS in England is publicly funded with a multibillion-pound budget, it is inevitable that some form of priority setting based on economic grounds will be made, which, although largely denied by the Department of Health, is highlighted to a greater extent during times of fiscal pressure. Whilst the Department of Health is accused of being in “official denial that cost-motivated rationing is taking place”, there is ample evidence to suggest otherwise. For instance, the NHS has often “rationed with waiting lists”.

The National Institute for Health and Care Excellence (NICE) is the Non Departmental Public Body responsible for providing guidelines for the use of new medicine and treatments. For the purpose of this paper, NICE is arguably the most important aspect of healthcare in England due to both the praise and criticism that the organization receives, and can be described as a “finely tuned machine”. NICE’s influence within the NHS can be demonstrated by the list of “do not do” clinical interventions, ranging from only using major surgery as a last resort, to the use of vitamins in reducing cardiovascular risks. Additionally NICE can be described as “doing the Oregon for the NHS on a day-to-day basis”.

The current service, or “package of benefits”, funded by the NHS is “arrived at implicitly through the decisions of…politicians, regulators, commissioners, clinicians and patients” on a local level across the NHS, through PCTs. Such a process has the potential to lead to a variation in the service that is provided across England, and contributes to the notion of a postcode lottery, or “rationing by postcode.”

Such a postcode lottery therefore does appear to show a need for standardisation of priority setting from a PCT perspective, which could theoretically allow a more balanced level of healthcare to be provided. The most notable political response to the notion of a postcode lottery is the establishing of NICE itself by the Blair government “to develop national service frameworks” to deplete such a variation in care.

Whilst the postcode lottery can be attributed to the autonomy that each PCT has, one not entirely negative aspect of the disparity is that the NHS services in poorer areas do not appear to be disproportionately affected.

Regardless of whether such a lottery actually exists or not, it is necessary to look at the issue of priority setting further within the NHS. For instance, a report in 2007 found that 53% of doctors knew of cases where patients had suffered due to rationing of their healthcare. Additionally, 85% of GPs believe that “in the next 5 years the NHS will have to set out …what is – and what is not – available to patients” in the NHS.

The public will often show strong support for the NHS, but given some of the reaction to NICE decisions, there is not necessarily a connection made by the public to the limits of the NHS budget. One survey did however find that 61% of people surveyed believed that the “NHS will have to stop providing some treatments and services in the future due to rising costs and increased demand”. The same percentage also said it was “right that some hospitals stop providing certain services in order for the NHS to save money”.

Whilst there is little evidence of complete consensus on whether priority setting and rationing is occurring within the NHS, the use of terminology is varied within PCTs, perhaps making it difficult for national surveys to have full validity. For example, terms such as “Procedures of Low/Limited Clinical Value” and “Interventions Not Normally Funded” are used in an apparent attempt to avoid the association of priority setting or rationing.

An example of priority setting within the NHS is found at Croydon PCT where “34 low-priority procedures of ‘limited clinical value’” have been earmarked under four categories, from relatively ineffective to effective interventions. An important point to consider here is that priority setting processes adopted by other PCTs appear to have focussed upon new funding and developments, rather than existing funding too. Such a focus is also a criticism of NICE, and as will be discussed in Chapter 2, is in direct contradiction to the other approaches taken.

An argument can be made that the public should have as much information as possible about the way in which funds are spent in the NHS. Given the importance of healthcare to one’s own life, it is of utmost importance that any priority setting made in the NHS is explicit.

Discussing the role of priority setting is important because it can lead to variations in the level of care available, especially if left up to the PCTs to decide, as was shown with eligibility of IVF treatment. Given that a survey of PCTs found that 45% made public the criteria used by priority setting panels, and 44% made such decisions public, there is visible reluctance from some PCTs to engage with the public about priority setting and rationing.

The processes the NHS uses for determining what services to provide can be regarded as “obscure and lacking in accountability” to patients. An argument in support of a more transparent decision-making process for priority setting is that if “decision makers were encouraged to make their decision-making processes and decisions public, it would help to guard against inconsistency, unjust preferences and groundless exceptions”, and therefore theoretically leading to a more transparent NHS.  Whether this necessarily leads to more accessible care – arguably more important than the transparency of the PCT – remains to be seen, however.

The politics of rationing/priority setting

Whilst the argument can be made that rationing is an “inherent feature” of the NHS, political leaders do not choose to talk about the NHS in such terms, due to the political sensitivity of the NHS and the political consequences that talking negatively about a well-respected public institution can have. It is common for ministers to occasionally “define what should be provided (for which they can claim credit) but will almost never explicitly decide what should not be provided (which might attract blame)”. The consequences for such an approach is discussed  in the analysis and lessons for the NHS that can be taken away from the Oregon Health Plan.

Projections of UK health expenditure, 1960-2059

Projections of UK health expenditure, 1960-2059

In addition, as the NHS budget comes under more pressure, the “willingness” of political leaders to engage with priority setting may diminish, particularly if this leads to unpopular decisions. The existence of NICE has however led to some distance “from decisions that risked attracting criticism” between policymakers and healthcare provided.

Ian has been working with us for the last year and this is part of his undergraduate dissertation submitted to the University of Sheffield.

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30th April 2013

Ian Goley: One of the main questions that has come up in the literature review, when people say that they want to defend the NHS from the NHS reforms, what is the NHS?

Clare Gerada: That is a very very very good question. And it’s such a good question because nobody ever asks it, and I ask it because people talk about “the NHS” and I say what do you mean. They usually say it’s a service made up of hospitals, doctors and nurses that are free at the point of use. It isn’t, the NHS is a system of distributing resources according to need, not according to want. So it’s a distribution system, amongst other things; so we also have a National Health Service that also provides care that is free at the point of use, that is held together by systems of governance, employment, structures that underpin delivering this money to where it’s required. That’s what it is, it’s nothing more and nothing less. What the NHS is becoming – it’s also a social solidarity which we all adhere to because we know that if we’re in a queue we will get the care that we need, but if we’re in a rush and we need it we’ll get it sooner. So that’s what it is.

What it will become is a system of payment only. It will become a system whereby the money that the state allocates will be called NHS. Because what else is it. I mean if you take away the distribution of resources, then what is the NHS? It’s nothing more than the Medicare, Medicaid – it’s not a fair distribution of resources. So that’s what the NHS is to me.

IG: So when you say it will become

CG: Well it already is

IG: Is that the 1st of April, or

CG: Yes. I mean one is the duty to provide. So, up until now the Secretary of State for Health has had a duty to provide a comprehensive service. Now he just has to promote a comprehensive health service. The other thing is that what we’re already getting in the marketised health system is we’re getting lopsided care; where the classic is, a recent one of Specsavers advertising for digital hearing aids: now, you could say it’s addressing an unmet need. Actually, it isn’t. What it’s doing is it’s shifting resources away from where they’re needed into a specific area called digital hearing aids. What it will become is like with all marketised systems: money will be the determinant. It already is with PFI, even within the NHS system, but it will become increasingly that. So what will be provided will be what can make money. So you’ll get, the classics will be radiology, intervention with radiology, dermatology, orthopaedics, ophthalmology, stuff that’s high volume, low cost that you can make money from.

IG: So the example of using Specsavers, or even at the moment, before these reforms, the GP would give you a prescription and you would in most circumstances take that to a privately run pharmacy

CG: Yes, Bevan introduced some co-payments, but the co-payments had to be determined through Parliament, so you’re talking about something slightly different. Pharmacies, yes, are private, and people often say GPs are private. If you mean “private” that money exchanges hands, not it doesn’t, even though the pharmacist has to ask for money, for the medicine, that’s not his gift, that’s laid down by government. So you’re not paying the pharmacist for his service; you’re paying the state as a co-payment, which has been determined through an Act of Parliament. The same with GPs, you don’t come and give the GP your credit card, but the example with Specsavers, is that… I thought you were going to say that Specsavers already provided NHS provision; they did. But what’s happening now is it’s going to be exploded, and already people are getting leaflets through their door “go to Specsavers and ask your GP to refer you for digital hearing aids”. You’re shifting resources; not according to need, but according to want, and the power of the market. The NHS was a system that was beautifully held together, partly through the human beings within it, but partly through that the fact the way it was set up, there was no incentive whatsoever for me to refer you to a hospital. I didn’t get a kickback. Equally the hospital didn’t get a kickback for keeping you in any longer, or doing any more tests. This is gradually going to shift. And what will happen gradually will be as I can now earn more money privately, there’s going to be a mix and match of NHS and state, and NHS and private going alongside which you never had, ever. And there’s going to be a blurring of what the NHS is, because the NHS in the end is just going to be a system of payment. That’s it. It’s going to be a state insurance system.

IG: So, coming on more to the reforms, there is the argument that “anyone who claims to have followed the NHS reforms, hasn’t been following the debate”. Is that something that you would agree with?

CG: I think very few people have followed it. I mean, even now, people who should know better have completely missed the point. You asked the most important question at the start: “what is the NHS?” They don’t ask that to start, they assume. So when they say that the NHS is and the NHS is that, I say you’ve all got it wrong; Mid-Staffs isn’t the NHS, it’s a system within. It’s part of a system. The NHS is this fair distribution of resources. Yeah I don’t think many people did follow the reforms, and they were very complicated, they still are. Because they’re all tied up, not just in EU regulation but in US-EU regulation and in competition and commercial law. And in stuff that is so way above the heads of most people that it’s difficult to follow.

IG: So, what would be the most significant aspects of the reforms?

CG: For me, there’s three red lines: and again, unless you’ve read the reforms, they’re complicated. 1 is the system of resource allocation isn’t quite in the Bill, but it’s coming; the system of resource allocation is going to change from area based to individual. So again, if you think about your HMO, your insurance model, it would be your allocation for next year’s health – you, physically – would be on your last year’s activity, or on what the actuary sets, we’re going into insurance modelling. The other one is within these set of reforms there is the removal of traditional GP boundaries; again it’s in the secondary legislation, but you’ll be able to register anywhere. Now, people say that’s good through choice, but it then blows apart the GP serving their community; I’ll be able to advertise lock stock and barrel for the nice, fit young… And the third red line is the duty to provide, versus the duty to promote; the duty to promote has replaced the duty to provide. So that’s the third one. But there’s also all the legal structures that underpin distribution of resources fairly. But again, they’re very complicate; but those are the sorts of things that I think the reforms have done. They’ve denationalised the National Health Service.

IG: Does the role of GPs on the Clinical Commissioning Group…

CG: Well that’s irrelevant you see, because I don’t think GPs will be on CCGs much longer. We haven’t got any staff; we are reeling under the workload, and even if we did have staff, the legislation doesn’t dictate that GPs should be on the majority of the board. Most CCGs do not have GPs heading up the CCG, and as CCGs merge – which they will inevitably merge – you’ll get less and less clinical involvement; the clinical involvement will be in an advisory role. It’ll be more and more that the real power of a CCG will be in the CSUs, which are the engine room of the machinery of the monitoring, the data crunching, invoicing, the resource allocations, that’s where it will be.

IG: So you don’t think that competition, well, GPs involvement with competition through CCGs will be as prevalent? – as it’s otherwise made out to be?

CG: I don’t think GPs will be involved at all. I think this business about GPs and conflict of interest is irrelevant. I think it’s so miniscule, and it dwarfs in comparison to the conflicts of interest that many of our ministers have; it’s dwarfed. You know, McKesson [a large healthcare company] pay a retainer to Lord Carter [of Coles] of nearly a million pounds a year; he’s in charge of the competition commission – well, how much more conflict of interest [can you have] – so many of the Lords have serious conflicts of interest – so the fact that a GP owns a company where he might do a bit of dermatology on the side, is irrelevant.

IG: And so the argument that goes that the commissioner and the provider being the same?

CG: The split between the two?

IG: Yes

CG: Again I think it’s irrelevant; it’s a red herring. And I think actually, in many ways… You see, when we didn’t have perverse incentives, and when we didn’t have so much money involved in health – i.e. when we had the NHS – commissioners and providers should go arm in arm. I’m an expert in substance misuse – if I’m not there as a provider and a commissioner, what on earth… So no, I think it’s a red herring.

IG: In terms of the other reforms, so HealthWatch. Is that… [something you think will have an impact]?

CG: It will be the same… I mean I’m old enough now to have seen Community Health Councils, Links… it will go that route – it will be under-resourced.

IG: So it’s nothing new that’ll be anything too significant?

CG: No, it’s nothing

IG: And also the Nicholson Challenge. Do you think that the NHS reforms, through the Health and Social Care Act, mixed together with that [the Nicholson Challenge / QIPP] will… [that result in a negative situation for the NHS]?

CG: Well, we always said right at the start that having a reform so large you can see it from outer space alongside one of the biggest fiscal crises we face, is silly; at the very least. I mean, just think about your own life – what you don’t do is to suddenly rebuild your house when you haven’t got any money in the bank. So yeah!

IG: As I said, I’ve been looking at the Oregon Health Plan, which looked at explicit…

CG: rationing?

IG: Yeah, well that was the headlines associated with it. Looking at the literature, some would argue that there wasn’t that much rationing that took place

CG: No, it was just fertility treatment if I remember rightly? And neo-natal cots.

IG: Yes, but the principle of – the politics of that – that it got in effect the public debate…

CG: Yeah, I think that was very useful, yeah

IG: …about what healthcare should be provided

CG: And also what the cost of care is. Yeah, I mean, I think it would be quite useful for the public to get involved. But the public will always pick infertility treatment. Always. They will never pick cots, not in this country. But they should be picking cots. We’ve [got] NICE of course, so NICE does the Oregon for us on a day-to-day basis. So yeah, Oregon was a good, very good move. Didn’t change anything, but it gave us an example of if you ask the public, this is what they’d come up with.

IG: That’s interesting, because at the moment there’s a perception that implicit priority setting is apparent within the NHS. Although you have got the role of NICE where some elements do appear to be explicit.

CG: Yes, I think it’s a finely tuned machine, which is why the government meddling with it is a disaster beyond…

IG: So the status quo would be the preferred option?

CG: Yeah, I mean we’ve always rationed. GPs have always rationed; we’ve rationed with waiting lists; we’ve rationing with what you’re waiting. We’ve always rationed, but it was done in a way that was done with our eyes open and done involving the patients sometimes. Now it’s explicit rationing: now you cannot get your two eyes, you cannot get your two hips. And it’s done in again, in the machinery of the market, which I think makes it quite ugly. And puts mistrust into the system. Which is what I think is happening.

IG: Which is the negative element?

CG: Yeah

IG: So, just related to that, the NHS Constitution of 2009 defines the NHS as a comprehensive service

CG: Beautiful definition. It is something like ‘the NHS is owned by the people, for the people. It’s a lovely… You need to start your dissertation with that definition. Which has carried through in to the 2013 constitution. Have you seen it?…it’s

IG: Yeah

CG: …a beautiful, beautiful definition. It starts I think, ‘the NHS belongs to the people’… Sorry, what was the question?

IG: In terms of comprehensive care, has the NHS actually set out what it does provide? Do you think?

CG: If you read Allyson Pollock’s work, she sets out what it’s no longer going to provide. So immediate and necessary anti-natal care, so yes. It never has set out exactly what comprehensive care meant, but in a way…

IG: But, does it need to [set out the care it provides]?

CG: No, I don’t think it needed to. But now it’s the opposite; now Allyson [Pollock] sets out what it isn’t going to provide, which is more, the opposite.

IG: Just, lastly, in terms of, what is the end result for the NHS reforms? Because, depending upon who you, in terms of the academics, some would argue that if you look at the US reforms, that’s bringing it closer to the model of the NHS, even though it’s still the significant reliance on the insurer; and that the NHS reforms are going the other way.

CG: Yeah

IG: Is that [something you would agree with]?

CG: Yeah, well I think that’s a very good analogy. We are now heading much towards the United States system than the European system, which has a sort of modicum of distribution of resources based on area base, planning. Whereas we’re heading much more towards an individualised, free-for-all based, exactly that; with choice being at the centre. Which ‘choice’ means a market. The irony is that every health service is trying desperately to recreate an NHS, so with an integrated, primary-care led system. And we’re heading the opposite direction. Ironic isn’t it?

IG: [laughter] One other aspect of my dissertation is looking at local autonomy.

CG: Yes

IG: Will that…?

CG: No. I don’t think you’ll get local autonomy any more than local government is free to determine how much it charges its rents and rates, and what it can provide. I can’t see how you’re going to get local autonomy. I mean you might get a little bit of local autonomy for determination depend upon need. So a seaside town might do this, or Cambridge might have student services. But if you say local autonomy; that a local area decides not to … Really stark example: local area says we’re no longer going to fund 26 week neo-natal cots… Impossible. Impossible. [it will] Never happen. More, the worrying thing is then when they say we’re no longer going to provide obesity services to smokers, or sexual health services. But then that’s local government, and I do think moving some care to local government worries me, because you put politics into health and we know that when you put politics into health – real politics – you get disasters – look at the States and their abortion stuff.

IG: When you say ‘real politics’, that’s more party politics? – As opposed to elected representatives

CG: Yes, so more party politics, so today, the whole news is that prisoners aren’t going to have Sky TV. What if you said prisoners aren’t going to have access to condoms. You could use the same argument, and that’s what our worry has been; putting politics into health, where it has no place. And I think that moving it to local government puts it into health where it has no place. And I worry about that. I’m not so concerned: I don’t think local determination will happen with the big ticket issues though. Money will dictate. When you go to Chicago, they have the place with all the hospitals, they have more scanners than… Because scanners create income. They don’t need scanners. And all the hospitals are distributed at one end of town, because that’s where the rich people live. You don’t get hospitals at the other end of town. That’s what markets do.

IG: And just one, final question. There’s a quote where you’ve said about it [the NHS reforms] creating a budget airline.

CG: Yes, that was my 2010… Did you read the speech

IG: Yes

CG: Did you like it?

IG: Yeah. And the Department of Health response to that was effectively, ‘within the reforms everyone will be flying first class’.

CG: Do you think that’s true?

IG: [laughter]

CG: Go and look at the waits in A&E now. No they won’t be flying first class [laughter]. We’re already seeing queues develop. And, just picking up some of the news now, I haven’t looked at it, but there’s a big hint about increasing co-payments. And paying for care, more and more, which is what happens in social care. Everybody will not be flying first class. There will be those that can afford to top-up their NHS allocation of resources, who will get a better service. You will get better because you’re fit and well and you’ll top-up you bits and pieces because you’re not going to be ill. No, everybody won’t be [flying first class]… I would rather everybody flew economy, because then we all fly the same. Dentistry, look at dentistry, the idea that everybody in dentistry receives excellent teeth is crap, isn’t it.

CG: Is that alright?

IG: Yes, that’s excellent.

CG: Is that going to help you pass your dissertation?

IG: Yes. This is what I’m starting with [showing quote from NHS informational leaflet in 1948].

NHS 1948 Informational Leaflet

NHS 1948 Informational Leaflet

CG: You can see how the language changes can’t you. Fantastic. Have you just come down for today?

IG: Yes, I’m going to the British Library , because, as I said, doing it partly on the Oregon Health Plan, and books are quite difficult to find.

CG: So, your dissertation is on the reforms. So, presumably you’ve read as much as you can on Allyson Pollock, the BMJ articles, and Martin McKee, they’re very good. Well, good luck,

IG: Thank you

CG: And I wish you well with your research.

IG: Thank you, thanks for agreeing to an interview.

CG: Lovely, pleasure. Do you like our college?

IG: It’s very nice, yeah. How long has it been here?

CG: Well, this was the first place that the NHS was – Ministry of Health, so 1948. But we’ve been here about six months.


Ian has been working with us for the last year and this is part of his undergraduate dissertation submitted to the University of Sheffield.



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Care UK sees an opportunity to make money out of NHS rationing decisions

Care UK GP Newsletter

Care UK GP Newsletter

Charges advertised to doctors for people not eligible for NHS treatment:

Care UK Tariff

Richard Blogger’s articles about NHS hospitals doing private work

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This is NHS Check report no 4 originally published by Labour’s Shadow Health Team in  November 2012


  • An estimated 52,000 patients in England were denied treatment and kept off NHS waiting lists last  year due to cost-based restrictions
  • Official statistics show huge fall in operations in the eight treatments most commonly subject to new restrictions
  • Overall, 47 PCTs in England have restricted one or more of the eight treatments
  • Patients left in pain, discomfort, unable to work or paying to go private as cataract, varicose vein and carpal tunnel syndrome operations all affected
  • Evidence of accelerating postcode lottery across nhs in england undermines claims by ministers that rationing by cost is not happening Continue reading »
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This is NHS Check report no 1 originally published by Labour’s Shadow Health Team in  June 2012

Crude, random rationing by health bodies goes far wider and deeper than first believed with 125 previously-free treatments restricted or even stopped altogether in last two years.

Labour uncovers new evidence to show:

  •           restrictions are linked to arbitrary caps and cost – despite  Ministers’ claims;
  •           restrictions are being introduced which diverge from NICE  guidelines;
  •           restrictions cover a number of serious treatments affecting patients’ levels of pain, mobility and quality of life;
  •           22 treatments or services stopped altogether by at least one  PCT/CCG;
  •           patients in parts of England left facing charges for essential  treatments such as cataracts, knee surgery and hip    replacements. Continue reading »
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Marilyn Monroe

Marilyn Monroe

Many in the discussion would wish you to concentrate on the phrase, “free-at-the-point-of-use”. This is the idea that you a patient does not pay for any treatment.

Many also do not understand the Health and Social Care Act (2012). There are many in the social media at large who feel that the NHS needs to face change in improving the service, and indeed point to crises within the NHS as examples of a failing service. It is critical that the NHS can learn from its mistakes, in terms of its operations, strategy and leadership. However, the Act’s primary purpose is not about that. I simply do not understand why the media, and notably the BBC, have been ‘asleep on the job’, in explaining what these £2bn reforms were about. The most common explanation is that the Act is incomprehensible. As a law student, it is perfectly comprehensible, but I would say that? The Act abolishes a number of important national authorities, such as the National Patient Safety Agency and the Health Protection Authority, but it legislates for a much greater number of private companies to do NHS functions in the name of the NHS. This means that ‘market forces’ can lead to distortions in provisions of healthcare, determined by the individual business plans of the companies involved. It is therefore a “supplier-led market”. In the high street, neoliberal forces have seen less profitable sectors such as immigration, housing and asylum, struggling compared to their City counterparts, corporate finance and the such like. Therefore, the critical issue is how “comprehensive” the NHS is.

On top of this, it is impossible to ignore the impact of the drive for ‘efficiency savings’. In 2009, Sir David Nicholson was reported of requiring such savings as below:

NHS trusts will have to deliver between £15 billion and £20 billion in efficiency savings over three years from 2011 to 2014, David Nicholson, the NHS chief executive, told health service finance directors in a speech delivered behind closed doors.

The steep cuts would be equivalent to up to six per cent of the current NHS budget.

Health trusts which fail to deliver the required savings could face tough new penalties following a review by the Department of Health of its enforcement regime.

The definition of “comprehensive” in the Oxford English Dictionary is indeed a useful starting point, essentially described as “including or dealing with all or nearly all elements or aspects of something“:


Definition of "comprehensive" in the OED

Definition of “comprehensive” in the OED

“Comprehensive” therefore means for most people “all” or “nearly all”, and it’s a matter of interpretation what “nearly” is. This “nearly” aspect has been a slow-burn in policy, for example: “Labour’s national policy forum will debate a draft document on the NHS which contains references to a “largely” comprehensive and “overwhelmingly” free service.” In March 2011, the NHS published its NHS Constitution, and a leading guiding principle is:

The NHS provides a comprehensive service, available to all irrespective of gender, race, disability, age, sexual orientation, religion or belief

This non-discriminatory aspect of provision of healthcare therefore emphasises equality.

It is therefore disingenious that a campaigning issue that individuals maintain that, after implementation of these costly reforms, that the NHS will still be ‘free-at-the-point-of-use’, as that ignores the comprehensive point. Colin Leys in the Guardian has already highlighted this as an issue in the Guardian:

Under the bill the range of what is available for free seems certain to contract further. Commissioning groups will have fixed budgets. The for-profit “support organisations” that are being lined up to do most of the commissioning for them will have a strong incentive to limit costs, and therefore the treatments to be paid for. CCGs also look likely to be free to decide that some treatments recommended by hospital specialists are “unreasonably” expensive, and refuse to pay for them, as health maintenance organisations do in the US.

A core of free NHS services will remain, but they will be of declining quality, because for-profit providers will cherry-pick the most profitable services. NHS hospitals will be left with the more costly work, so staffing levels and standards of care will be forced down and waiting times will get longer. To be sure of getting good healthcare people will increasingly take out private insurance, if they can afford it. At first most people will take out the cheaper insurance plans now on offer that cover just what is no longer free from the NHS, but gradually insurance for most forms of care will become normal. The poor will be left with a limited package of free services of lower quality.

What is available on the NHS should be determined nationally, in a transparent and democratic way, not by unelected local bodies. The bill will allow the secretary of state to deny responsibility when good, comprehensive, free care has become a thing of the past.

There are indications that services are being “scaled back”. For example, there have latterly been reports of impact on hearing services, for example:

NHS hearing services are being scaled back in England, an investigation by campaigners suggests.

Data obtained by Action on Hearing Loss from 128 hospitals found more than 40% had seen cuts in the past 18 months.

In particular, the study found evidence of rises in waiting times and reductions in follow-up care.

The report is the latest in a growing number to have suggested front-line care is being rationed as the health service struggles with finances.

The NHS is in the middle of a £20bn five-year savings drive.

The political question is, of course, whether the public accepts the need to ‘scale back’ these services and doesn’t care about the service being entirely comprehensive; or whether Labour (or indeed any party) should simply give up on an inspiration for totality in the service. A film once starred Marilyn Monroe entitled “Something’s Gotta Give”, and now that the first major step has been taken in ‘liberalising’ the NHS to any qualified provider, it is perhaps more necessary than ever to admit there is no guarantee at all on the NHS provision being close to “comprehensive”, unless the NHS Commissioning Board gives clear and precise details which services have been cut and where. This is going to be increasingly significant as a mature discussion about rationing gathers momentum too.

Above all, it seems now essential that local respondents are allowed to offer feedback into this clinical decision process, for example as demonstrated recently in the Lewisham situation, otherwise localism is a complete farce.

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The excellent Clare Gerada, Chair of the Royal College of GPs is calling for a brave and honest debate about rationing medicine.  According to GP magasine two thirds of GPs think that the NHS should stop providing free prescriptions for drugs that are available over the counter.  Generally stuff like Calpol which you can buy without a prescription is cheap, less than the £7.65 prescription charge we have to pay in England.  So it seems unlikely that requests for this stuff are coming from the people who have to pay charges.  Only a small minority of prescriptions attract a charge  – and none at all in Scotland, Wales or Northern Ireland.  So some of these requests may be coming from people who really have trouble finding small sums for medication.

Honest debate about rationing medicine

Child taking medicine

Gordon Brown was talking about abolishing prescription charges in England in 2008, and we investigated the options.  Prescription charges were imposed in 1952 as a rather primitive form of rationing.  Apart from the free prescriptions for the poor, the old and the young there is a list of medical conditions which entitle a patient to free prescriptions – because in 1968 when prescriptions were reintroduced by the Wilson government there was life saving long term medication for those conditions.  The list hasn’t been revised since.   As the charges tend to deter people just above the level which qualifies them for free prescriptions from taking all their medication there is a downside.  Some of those people will end up in hospital because they don’t take their medication.

Rationing healthcare is universal and inevitable.  The only question is how it should be done. Asking people to pay at the time they need treatment is agreed to be the worst possible way of doing it.

Dr Gerada has often called for decisions about rationing to be made by politicians, not doctors.  We haven’t seen a rush of politicians stepping up to make proposals about what should be rationed or how.  The NHS reforms introduced by this government are designed to insulate politicians as far as possible from unpleasant decisions of this kind.  In reality it’s probably better for most of these decisions to be made in the consulting room than in Whitehall.  The introduction of Clinical Commissioning Groups does seem to have had beneficial effects in many areas, because it’s forcing GPs to look at each other’s practise and see where money could be saved.

Perhaps the price doctors should ask in return for taking responsibility for rationing decision is that prescription charges should be abolished in England. Then the discussions in the consulting room need not be complicated by considerations about charges.

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Labour Health Policy Consultation

Response from Dr Kathy Teale and Councillor David Ellison, Members of SHA and Didsbury West Labour Party  Manchester Withington CLP


Many studies have shown that the NHS is an extremely cost-effective health care system.   A recent Commonwealth Fund report from 2010 repeated this finding. This report compared health care systems in 6 developed countries including the UK, the US, Canadaand Germany.  They looked at 5 areas – Quality of care, Access, Efficiency,   Equity and population life expectancy.  The UK ranked 2nd overall, with a much lower cost per capita – $2454, as opposed to $US 7290. However it did badly on “long healthy lives” (many of the determinants of which are determined by social conditions and not a reflection the quality of health care) and “patient centred” care, (which reflects how convenient and pleasant the service is for patients, rather than looking at outcomes).

The NHS is therefore not a “broken” system – and it’s high cost-effectiveness may be particularly relevant at a time of restricted government budgets.  However, there are elements which we need to improve, especially as the population ages and comorbidities such as obesity increase.  In particular, it needs to be more “patient-centred”.

We currently, under the purchaser-provider split, have a system which has discouraged integration between primary and secondary care, and where rehabilitation services, community care and social care have been grossly and systematically under-resourced.  We have also inherited a network of acute hospitals which has not changed for the last 60 years, despite major changes in population distribution and needs.   Yet the recently-passed HSCA does nothing to address these problems, and in fact will lead to an increasingly fragmented and disparate service with differences in provision and access between regions becoming increasingly common.

This paper looks at some of the ways we can improve on the current provision of health care in theUK– both in acute services and long term and social care.

Response to Questions;

1/ an integrated approach to Health and Social Care

  • Is whole person care the correct approach to healthcare in the 21st century?

A    Yes, the consensus view is that that this is the way forward

  • How can whole person care be funded so that it becomes free at the point of use?

A. Healthcare should be provided by the Public sector. The celebration of the humanity of the NHS was a key part of the Olympic Celebrations by Danny Boyle. Evidence from theUSAdemonstrates that costs of private provision are substantially higher due to administration, bureaucracy costs, excess provision to the wealthy, and still with inadequate provision to the poor and non-insured.  An extended state-backed insurance-based system for social care may need to be provided in theUKto fund care needs of the elderly in the future as costs of care and the number of elderly increases. Planning for this whole life care should start now.

The principal of free Health services at the point of use must be maintained however. Up-front payments, as inFrance, disadvantage poorer patients and discourage access from the very patients that often most need to access services quickly.

More emphasis should be placed on access to primary care, which evidence shows has become more restricted since the current government came into power. Easy and prompt access to primary care is essential for early diagnosis and reducing health inequalities especially in hard to reach groups.

“Empowering primary acre is associated with better health outcomes and lower costs – primary care has been outmanoeuvred by a health industry intent on opening access to lucrative down stream services and resources “Brian Kiepper, US health commentator

  • How can we ensure a better experience of patient care?

A    Ensure that service providers are responsive to patient requirements. That a complaints service continually responds to patients and that a system of continuous improvement is in place. Ensure that there is strong scrutiny of NHS services with an independent patient watchdog put in place.

The emphasis on patient choice should be changed so that patients have choice over the treatment they have, and at which hospital, clinic, or care home. However, the expectation should be that the patient’s local provider is of high quality and most patients would want to go there

  • How can we better extend services to hard to reach families and communities?
  1. Make sure that people know about the services that are available, through public health promotion, use of community outreach services.  There must be a concerted drive to reduce health inequalities and differences in life expectancy that only began to close with injection of resources into the NHS by the last Labour government. Evidence is growing now that health inequalities are growing again.  Access must not be affected by wealth,  education, comorbidities, age , gender, or race .
  • How the health and social care service should be funded in the future?

A     The most equitable way of providing healthcare is by population risk pooling i.e. funded by everyone through general taxation or state insurance system . Co-payment systems reduce access to those with low incomes and introduce a two tier service, reducing the impetus for service improvements for those on the lower tier. This will only serve to widen inequalities . Even a small charge to see the GP when trialled inWales, resulted in later presentation of morbidities .  Specific insurance systems introduce a smaller risk pool with the danger of cherrypicking .

  • How can services be made more accountable to patients , public and staff ?

A   There needs to be democratic accountability for the Health service at the highest level to Parliament .  Democratic accountability at local level should be increased by strengthening the role of local authorities in the provision of public health and social care services . Authorities should have a role in driving down health inequalities . However to do this they will need sufficient resources.  The poorest parts of theUK, which are the areas of shortest life expectancy, have the highest health needs and therefore need appropriately increased funding to improve the health outcomes for these vulnerable populations.

  • How can we learn from the Dilnot Commissions about how we fund social care ?

A   The Dilnot Commissions recommendations for social care need to be looked at. A state backed insurance system to meet the needs of an ageing population will be the fairest way of providing the increasing levels of social care required by a growing elderly population in the future .

2/ Principles  of Health and Social Care

  • What would you list as the key principles for any health and social care service ?

A  Health services should be funded  by the public sector through general taxation or insurance to provide general healthcare services for all citizens free at the point of use .

There should be equality of access for all citizens.  However, in order to reduce health inequalities the service should positively seek out those in need of care and meet those needs.

Treatments available should be evidence based and in accordance with best practice . Variability and idiosyncratic practice must be discouraged .

Information about services and outcomes should be freely available to patients . There should be a continual process of public health education and promotion

Healthcare provision should be planned and commissioned to ensure the changing health needs of the population are matched in line with advances in medical science and improved methods of care . Public Health services based on the needs of the population should drive change and improvement .

Healthcare provision should be adequately funded and commissioned at a local level where possible to ensure that is  responsive to the needs of the population .

Patients should have choice over the type of treatment they receive and where they receive it from . However it should be on the basis that the standards of service throughout  Health service are consistently high . Choice of provider alone does not drive up standards, as patients are unable to choose on the basis of any criteria reliably linked to quality of outcome.

  • How can we put the patient back at the heart of the NHS and re introduce cooperation rather than a market free for all ?

A   What do we mean by patient at the heart of the NHS ?

Patient centred – The commonwealth fund definition is “ care delivered with patient preference and need in mind, including good communication . continuity , feedback and engagement “  This does not involve outcomes, which are assumed.

1/ Ease of access to primary care provision – 80% of healthcare contact is through primary care . Good communication , continuity of provider and emergency care when required are vital

2/ Involve patients in decision making about their treatment

3/ Emphasis on whole person care –not fragmented across different services especially for elderly and multiple co-morbidities

4/ Abolish private sector competition which segments service and hives off profitable parts and introduces perverse incentives . Providers should not be “for profit “ , free flow of information and patient details between providers is vital . All centres to publish data, not just NHS providers.

5/ Rigorous audit and monitoring against quality targets e.g. fractured NOF care – with payment attached to providers for fulfilment of targets .

6/ rationalize secondary care services e.g. specialist care in a few big centres , less specialist in other and more local hospitals , balanced against access requirements

7/ Conflict between efficiency and patient experience – e.g. theatre list efficiency – some patients have to wait and risk cancellation in high utilisation systems . Therefore improving patient experience may lead to greater costs

8/ Improved communications once being treated , including with relatives

9/ In turn patients have a duty to understand how the NHS works and is funded. Some patients are largely ignorant at the moment and don’t appreciate the service they receive. There is a social contract at the heart of the NHS

3/ Tackling Health inequalities

  • How do you think the NHS can best work to reduce Health inequalities?

A the Marmot report in 2010 identified 6 objectives to reduce Health inequality

1/ Give every child the best starts in life.

2/ Enable all children to maximise capabilities and have control over their lives

3/Create fair employment for all

4/Ensure Healthy standard of living for all

5/ Create and develop healthy and sustainable places and communities

6/ Strengthen the role of ill health prevention

The NHS alone cannot solve the health inequalities in society alone; it is only part of the answer. Improving health prevention and promotion services will assist in driving social change to improve health. , tackling obesity, smoking drinking, drug taking and improving diets etc.

One of the key ways of preventing premature morbity is ensuring that early intervention is available.  This will over time reduce costs as it reduces late presentations, improves care and reduces some of the need for expensive secondary care services

  • Which services need to work together to tackle health inequalities?

A  Across each region of the country the NHS needs to work together to provide an integrated service to patients;

1/    There needs to be an overall planning function  Matching the health needs of the population at a national , regional and local level with health care resources

2/    Integration between primary and secondary care to create a seamless care pathway for patients.  The vertical integration of services can take places through a range of service providers in different areas, dependent on local circumstances

3/ The Acute care services need to be arranged to continually drive up standards and bring the latest advances in medical science to the population. The model of Hub and spoke services is beginning to drive provision of specialist services.

4/ Changes in future demographics especially the increasing numbers of elderly and  long term conditions need to be reviewed and planned . The balance between primary and secondary care needs to ensure the best use of resources.

5/  If  rehabilitation, elderly and long term care is to move a hospital setting to the community, there needs to be massive investment in community care services to enable provision of 24/7 care, with the ability to provide intensive nursing care in the home .

6/ There needs to be integration with social care functions currently proved by local authorities. Some of the most needy families are in receipt of large amounts of intervention and this needs to be brought together in a co-ordinated way


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