BMJ report – a third of NHS contracts awarded to private sector

The BMJ have published (10 Dec 2014) a new report which states that a third of contracts awarded since April 2013 have gone to the private sector.

‘Its analysis of 3494 contracts awarded between April 2013 and August 2014 disclosed to it under requests made under freedom of information legislation showed that, in total, non-NHS providers (including private sector, voluntary sector, and other providers) have secured 45% of contracts awarded since April 2013. The analysis of the data supplied by clinical commissioning groups showed that 1149 contracts (33% of the total) were awarded to private sector providers, 335 (10%) to voluntary and social enterprise sector providers, and 100 (3%) to other types of provider, such as joint ventures or local authorities.’

Gareth Iacobucci, BMJ 2014;349:g7606


In response, BMA council chair, Dr Mark Porter, said:

These figures show the extent of creeping privatisation in the NHS since the Health and Social Care Act was introduced. The Government flatly denied the Act would lead to more privatisation, but it has done exactly that.

Enforcing competition in the NHS has not only led to services being fragmented, making the delivery of high-quality, joined-up care more difficult, but it has also diverted vital funding away from front-line services to costly, complicated tendering processes.

Dr Mark Porter, 10 Dec 2014

 

Peter Roderick, barrister and co-author of the proposed NHS Reinstatement Bill said:

This is precisely what was anticipated would happen during the passage of the Health and Social Care Bill.  It’s one of the main ways in which NHS privatisation is now unfolding. The NHS Reinstatement Bill would stop this. 

Peter Roderick, 10 Dec 2014

We need to keep the NHS in the hands of the public.

Please contact your MP to ask them to support the NHS Reinstatement Bill.


Professor Allyson Pollock speaks about the NHS and what you can do to help

Professor Allyson Pollock, one of the co-authors of the NHS Reinstatement Bill, spoke at a public meeting on 25 November 2014.

The meeting was organised by the Oxford Green Party. (The Green Party nationally are supporters of the proposed NHS Reinstatement Bill.)

You can watch Allyson’s presentation below – it is half an hour long – but it’s a great introduction to the issues of marketisation of the NHS, and what you can do to help.

If after watching it, you are inspired to support the campaign – please do take action here.


John McDonnell MP supports the proposed NHS Reinstatement Bill


Response of Peter Roderick and Professor Allyson Pollock to Lord Hunt

Lord Hunt (Labour) wrote an article on the ourNHS website about Clive Efford MP’s NHS (Amended Duties and Powers) Bill.

Peter Roderick and Allyson Pollock, authors of the NHS Reinstatement Bill, respond to his piece below. (This article is also hosted on the ourNHS site.)

 

Peter Roderick writes: Lord Hunt’s selective quotations from the 1946 Act which founded the NHS, and from the Efford Bill currently before Parliament, do not hit their target.  The actual text of Clause 1 of the Efford Bill that Lord Hunt quotes simply copies and pastes from the 2012 Act.  It’s not restoring any duty.

The Bill puts the Secretary of State back in charge but does not re-establish a duty to provide the listed health services.  I see that the House of Commons library has just amended its briefing in this regard.

Why does Lord Hunt not mention the all-important Clause 3 of the Bill and section 3 of the NHS Act 2006?  Presumably, because he would then have to admit that the Bill’s Clause 3 would transform the 2006 duty to provide listed health services throughout England into a new duty to commission them, and with no geographical stipulation.

There is also a slight concern around the Bill’s approach to the notorious Section 75 regulations which do much to force competition onto local health bodies. The Bill repeals sections 72-80 of the 2012 Health and Social Care Act – some of the key legislation around the regulation of competition to provide NHS services.  This is to be welcomed as a step in the right direction of reducing tendering procedures.  But for the record, the Bill doesn’t actually “repeal… the Section 75 Regulations” – i.e., The National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013.  It repeals rather the power to make more such regulations in the future.  Presumably it is intended that they should be revoked, but this must be clarified.

More worrying, there are concerns about what the Efford Bill would do regarding the EU/US trade deal, which many including the BMA have identified as threatening the NHS.

Lord Hunt says that “TTIP will not be ratified if it: ‘…shall cause any legally enforceable procurement or competition obligations to be imposed on any NHS body …. in any part of the health service.’”

But the Bill doesn’t actually say that.

Instead it says ‘No ratification…shall’ have that effect. In other words, the Efford Bill presumes ratification by the UK government, and then seeks to limit its effect.

Ratification of a treaty follows signature.  It is a step required for a treaty to become binding in international law. Once ratification has occurred, the obligations referred to would become binding in international law. So the TTIP Clause seems to set up a potential conflict between the UK’s international obligations and domestic law.

The TTIP clause is also only a partial exclusion.  So it also needs to be clarified why all NHS-relevant obligations under TTIP are not excluded – whether they affect the UK government, NHS bodies (which are undefined here) and non-NHS bodies, commissioners and providers alike.  And why does it not extend to other obligations, such as (for example) the ousting of the jurisdiction of the UK courts, or to the rights of private companies to bid for contracts?

There are two other, potentially more effective choices for Parliament here. It can either legislate to restrict the Crown prerogative by stipulating that the NHS cannot be included in TTIP. Or it can require the approval of Parliament (and the devolved legislatures) before ratification – as proposed by Clause 22 of the NHS Reinstatement Bill.

Professor Pollock adds: Lord Hunt makes several implied references to the NHS Reinstatement Bill without actually mentioning it.  Our NHS Reinstatement Bill would abolish the purchaser-provider split. Lord Hunt argues against it because he says it would mean “another total top-down reorganisation of the NHS” and “staff that we meet the length and breadth of the country plead with us to avoid another reorganisation.  The NHS would simply collapse under the strain having been so weakened and demoralised by this Government”.

The NHS Reinstatement Bill would not be a total top-down reorganisation.  If it makes it to the Queen’s Speech in May 2015, that’ll be because voters – including staff and patients – will have put pressure on Labour and other parties to do so.  That’s not top-down.  That’s democracy.  There are plenty of NHS staff supporting the Reinstatement Bill and who oppose the continuing inefficient and expensive market structures and mechanisms that are undermining the NHS and equal access to healthcare.

A reorganisation is necessary so that we all know who has the duty to provide and to ensure access to services.

The 2012 Act has resulted in chaos and fragmentation and the emergence of a large market bureaucracy which has seen money diverted from patient care to accountants, lawyers, management consultants and shareholders.

We need to return the health system to a state where it is coherent, organised, effective and efficient. This will inevitably require some structural changes, but it will establish a system that is more functional and will remove those elements of the current structure that are unnecessary and wasteful.

Efford rightly describes the 2012 Act as “hated”. It is dissolving the NHS as staff leave in droves. The NHS needs restoring and strengthening. Demoralised staff need to be trusted and paid properly. And we all need to know the NHS will be there for us when we need it. The Reinstatement Bill seeks to do just that.

 

 


House of Commons Library briefing amended – no longer any mention of re-establishing or reinstating a legal duty to provide.

On November 20th we contacted the House of Commons library to ask if its briefing paper for Clive Efford’s NHS (Amended Duties and Powers) Bill could be corrected.

The library provided a very prompt and constructive response, and the briefing paper has now been changed, so it no longer refers to the Bill reinstating or re-establishing a duty on the Secretary of State to provide health services.

The amended House of Commons briefing paper on the Clive Efford’s NHS (Amended Duties and Powers) Bill is here.

 


Response to Clive Efford MP’s legal advice on Secretary of State’s ‘duty to provide’

The National Health Service (Amended Duties and Powers) Bill received its second reading last Friday in the House of Commons.

One of the issues that has arisen is whether it would re-establish the legal duty of the Secretary of State to provide key health services – a major controversy during the passage of the 2012 Health and Social Care Act. Professor Allyson Pollock, barrister Peter Roderick and David Price have said that it does not, see their statement here.

Peter Roderick clashed with Clive Efford MP, the Bill’s promoter on Friday, 21 November – see his account here.

On Monday 24 November, Mr Efford put David Lock QC’s advice on his website, maintaining that the duty would be restored. This advice is here.

Peter Roderick has written to Mr Efford asking for a further explanation, as it clearly does not. Below is his letter.

 

24 November 2014

Dear Mr Efford,

Thank you for putting the advice of Mr David Lock QC on your website and for directing us to it: ‘Secretary of State’s duty to promote a comprehensive health servicehttp://www.cliveefford.org.uk/promoting#_ftn1

I think it is an excellent overview of the legal position – except on the key point of disagreement between us last Friday. (Or perhaps on another point as well, but I wish to focus here on the one which is not a matter of legal argument.)

He writes in paragraph 20:

“Clause 3 of the National Health Service (Amended Duties and Powers) Bill restores the wording of section 3(1) in the 2006 Act.   Thus if the present Bill is passed, the Secretary of State would re-acquire the legal duty to provide acute services to NHS patients to meet all reasonable requirements.”

Section 3(1) of the 2006 Act before 2012, as he sets out, opens as follows:

“The Secretary of State must provide throughout England, to such extent as he considers necessary to meet all reasonable requirements—[the listed services]”

The relevant part of Clause 3 of your Bill reads as follows:

“The Secretary of State must arrange for the provision of the following to such extent as he considers necessary to meet all reasonable requirements— [the listed services]”

It can be seen that the duty to provide throughout England has been changed to a duty to arrange provision, and the words ‘throughout England’ have been dropped; ‘arrange provision’ means ‘to commission’.

I am perplexed as to why Mr Lock states that Clause 3 restores the wording of section 3(1), and that the Secretary of State would re-acquire the legal duty to provide the relevant services. It clearly doesn’t.

Would you be able to ask him if he can explain?

Many thanks,

Peter Roderick


A day in the Commons for the Efford Bill – a personal view

A day in the Commons for the Efford Bill – a personal view by Peter Roderick, barrister and co-author of the draft NHS Reinstatement Bill.

Clive Efford debating his NHS Bill21st November 2014.  The National Health Service (Amended Duties and Powers) Bill, introduced by Labour MP Clive Efford in a passionate speech, was successfully given its second reading in the House of Commons today by 241 votes to 18. Labour turned out in force, Tories in the chamber were mainly in single figures, plus a couple of Lib Dems and a sprinkling of others – not least the new UKIP MP, Mark Reckless, who voted for the Bill. The Secretary of State, Jeremy Hunt, and the 2012 Act’s architect Andrew Lansley were nowhere to be seen – junior Minister Dan Poulter fielded for the government.

Little light was shed on the questions we had asked beforehand to be clarified.  The debate itself was a lively mixture of slagging the other side off, statistics trading, quite a bit of meandering and pomposity, and the occasional thoughtful and concerned intervention. The main question in my mind at the end of the debate was ‘what and whom do I believe?

Some cameos. Only John Pugh, Lib Dem MP for Southport, spoke in favour of abolishing the purchaser-provider split, though seemingly on a local rather than national basis. John Healey, Labour MP for Wentworth and Dearne, announced a meeting on Monday with the EU chief TTIP negotiator and Unison’s Dave Prentis. Sleep-deprived Mark Reckless got ribbed mercilessly – from both sides over his UKIP colleague’s view of the 2012 Health and Social Care Act as not having gone far enough, and by Dennis Skinner over the effect of UKIP’s policies on his “United Nations heart by-pass”, apparently performed by a Syrian cardiologist, a Malaysian surgeon and a Nigerian registrar.

 

Committee Room 9 meeting organised by Save Lewisham Hospital

Peter Roderick speaking in Committee Room 9 at the House of Commons on the Efford BillMore enlightening was the meeting afterwards in Committee Room 9 of about 50 people, organised by the Save Lewisham Hospital Campaign. Mr Efford came along and spoke, but he was in a defensive mood.

He was questioned closely on several issues, and I will mention three here.

The first one involved him and me in a heated exchange over the repeated claim that the Bill will re-establish the Secretary of State’s legal duty to provide the NHS. Mr Efford began by describing the view that the Bill did no such thing as “stupid” and “annoying”. I tried to demonstrate to him why the Bill did no such thing. My reasoning is set out here, and in my letter to the House of Commons library.

In a nutshell, the duty to provide or secure provision in section 1 of the NHS Act until 2012 is not reinstated by the Bill; and the duty to provide listed services throughout England in section 3 of the Act until 2012 would become a duty to arrange provision – i.e., to commission – with no mention of ‘throughout England’. This isn’t rocket science – anybody can read the original section 1 of the 2006 Act and section 3 and see that the duty to provide mentioned in both sections would be amended by the Bill, not reinstated.

But some clarity emerged. Mr Efford’s argument really is that looking at all the provisions of the Bill as a whole, the Secretary of State is being put back in charge of the NHS. What kind of NHS is another question, but that at least is a proper argument, regardless of whether one agrees with it. It’s not a proper argument to say that the Bill re-establishes the Secretary of State’s legal duty to provide the NHS, when it doesn’t.

Transforming the duty to provide into a duty to commission leads nicely to the second point: the reference to the NHS being a ‘service of general economic interest’ (SGEI), which voluntarily defers to EU competition law. Far from being a misprint for ‘service of general non-economic interest’, Mr Efford said that this was because the private sector provided health services and so the reference was correct. What he did not say was that Member States have considerable discretion in determining what are SGEI, and why the Bill makes this reference when it is not legally required.

Finally, Mr Efford – and several speakers during the debate – made it clear that Parliament should decide whether the NHS is exempt from TTIP. Hear hear. But why does Clause 14 of the Bill not say that?

As the meeting closed, John McDonnell MP said that Labour was still in denial over its role in marketising the NHS – a constant attack from the Tories and Lib Dem Julian Huppert during the debate to which there was no persuasive response. This makes sense to me.

 

What next?

At the meeting the understanding was that the government might refuse to allow the Bill to go to the committee stage, and that we should do what we can to prevent them refusing. Since then, I have heard that blocking the Bill in this way would be at least highly unusual. It would certainly be a poke in the eye for democracy. The Efford Bill takes a step in the right direction by reducing tendering procedures and the committee stage will provide a forum for detailed consideration and clarification of several issues and an opportunity for tabling amendments along the lines of the NHS Reinstatement Bill – all steps on the road to the Queen’s Speech in May 2015.


Update on Clive Efford NHS Bill


Duty to provide throughout England? Request for correction of House of Commons Library Briefing

Peter Roderick has written to the House of Commons Library to request for a correction in its briefing paper for the Clive Efford NHS Bill. The briefing paper is incorrect to interpret a duty on the Secretary of State to commission NHS services without national scope as amounting to resinstatement of the Secretary of State’s duty to provide the NHS throughout England.

Read in full: Peter Roderick’s letter requesting for correction of House of Commons library briefing (pdf)

Read in full: The Library’s briefing paper is available here.

 


Efford Bill 2nd Reading – Friday 21st November

On Friday 21st November 2014, the House of Commons will debate a Private Member’s Bill introduced by Labour MP Clive Efford on the NHS.  This debate is called the Second Reading. If enough MPs vote for the Bill on Friday, then the Bill can move to Committee stage.  It is at this stage that the Bill can be debated more thoroughly, and amendments proposed.  After which there is Report stage and Third Reading before it goes to the Lords.  It is very unlikely to go through all these stages before the General Election in May.

You can read our response to where we think the Efford Bill needs major amendment here.

We have written to all MPs asking them to attend the debate on Friday, and to vote for the Bill so that it has a chance to get to Committee stage. A copy of that letter is below.

Our aim is for MPs to amend this Efford Bill and use the parts with which we agree later in the NHS Reinstatement Bill 2015.  The Efford Bill does need significant changes and we will urge MPs to vote for some major amendments which we will propose.

If you haven’t yet written to your MP and candidates about the Reinstatement Bill please do so. We are collecting all the responses from candidates, so please do let us know any replies you receive.

The Save Lewisham Hospital Campaign is organising a vigil outside the House of Commons on November 21st – find out details here.

Here is the letter that Lord David Owen wrote to all MPs last week, asking for their support.
David Owen Letter MPs Efford Bill 13-11-2014