Allyson M. Pollock's Blog, page 2
May 12, 2020
Independent SAGE report. 2020
March 30, 2020
Write to your local MPs, councillors, and mayors
March 25, 2020
Covid-19: local implementation of tracing and testing programmes could enable some schools to reopen
March 22, 2020
We need hands-on public health expertise to tackle COVID-19
Privatisation & marketisation
July 6, 2018
The proposed National Health Service Reinstatement Bill, July 2018 – explanatory notes
These notes are intended to explain the Bill that was provided to Eleanor Smith, MP for Wolverhampton South West, for presentation in the House of Commons on 11th July 2018. [download pdf]
Overview
In short, the Bill proposes to fully restore the NHS in England by 2021 as an accountable public service by reversing nearly 30 years of marketization, by abolishing the purchaser-provider split, ending contracting and re-establishing public bodies which plan and provide integrated services and accountable to local communities.
The Bill gives flexibility in how it would be implemented, led by current bodies, including local authorities.
It would:
reinstate the government’s duty to provide the key NHS services throughout England, including hospitals, medical and nursing services, primary care, mental health and community services
integrate health services under the Secretary of State, whilst allowing delegation of public health services to local authorities, and allowing for integration of social care services following and subject to further legislation
declare the NHS to be a “non-economic service of general interest” and “a service supplied in the exercise of governmental authority” so asserting the full competence of Parliament and the devolved bodies to legislate for the NHS without being trumped by EU competition law (for so long as the UK is an EU Member State) and the World Trade Organization’s General Agreement on Trade in Services
exclude the NHS from international trade deals
require the NHS Commissioning Board (NHS England), clinical commissioning groups (CCGs), NHS trusts, NHS foundation trusts, and local authorities, including combined authorities and elected mayors, to develop a ‘bottom up’ process so that by 2021 services would be planned and provided without contracts through regional and local public bodies – which could cover more than one local authority area if there was local support, and taking into account English devolution – to be known as Strategic Integrated Health Boards and Local Integrated Health Boards
allow Health Boards to employ GPs, end pay beds and private practice in NHS hospitals and end contracts for GP services with commercial companies
abolish NHS England, CCGs, NHS trusts and NHS foundation trusts, following completion and approval by the Secretary of State of the Health Boards
repeal the competition and core marketization provisions of the 2012 Act, and abolish Monitor – the regulator of NHS foundation trusts, commercial companies and voluntary organisations
re-establish Community Health Councils to represent the interest of the public in the NHS
stop licence conditions taking effect which have been imposed by Monitor on NHS foundation trusts and that will have the effect of reducing by April 2016 the number of services that they currently have to provide
introduce a system for collective bargaining across the NHS
impose a duty on the Treasury to minimise, and if possible to end, the expenditure of public money on private finance initiatives in the NHS in England
abolish the legal provisions passed in 2014 requiring certain immigrants to pay for NHS services.
Clause-by-clause explanations
Clause 1 – Secretary of State’s duty as to health service
Clause 1(1) would reinstate the Secretary of State’s legal duty to provide the NHS in England. It would do so by effectively repealing the abolition of that duty as a result of section 1 of the Health and Social Care Act 2012, and by reproducing in essence the corresponding provision that applied from 1946 until 2006.
Until 2006, the government’s overarching duty had been “to promote in England a comprehensive health service” and for that purpose “to provide or secure effective provision of services in accordance with” the legislation. The NHS Act 2006 de-coupled the duty to provide from the duty to promote, and deleted the word ‘effective’. The Clause would reverse that de-coupling and deletion.
The title of section 1 of the 2006 Act (“Secretary of State’s duty to promote health service”) would revert to the title of section 1 of the National Health Service Act 1977, which made no distinction between the connected duties of promotion and provision.
A new section 1(3) would provide that the Secretary of State’s duty shall be exercised with a view to integrating provision of health and social care services in accordance with the Act. Clause 8(2) and (3) of the Bill make clear that this integration can only occur after a report the Secretary of State has reported to Parliament by the end of 2019 on the legislative changes that would be needed (e.g. in relation to funding, and structures) to enable effective, transparent and accountable integration.
For as long as the UK remains an EU Member State, or is subject to relevant EU laws, a new section 1(4)(a) would declare that the NHS is a “non-economic service of general interest”, with a view to preventing EU competition rules applying. This is a phrase that is used in the Treaty on European Union’s Protocol on Services of General Interest, which provides that “[t]he provisions of the Treaties do not affect in any way the competence of Member States to provide, commission and organise non-economic services of general interest”.
It is to be contrasted with the phrase “service of general economic interest”, which also appears in that Protocol. Article 14 of the Treaty gives the European Parliament and the Council power to make regulations establishing principles and setting conditions for operation of such services “particularly economic and financial conditions, which enable them to fulfil their missions”. This power is “without prejudice to the competence of Member States, in compliance with the Treaties, to provide, to commission and to fund such services”.
Under Article 106(2) of the Treaty, “[u]ndertakings entrusted with the operation of services of general economic interest…shall be subject to the rules contained in the Treaties, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Union.”
The NHS Reinstatement Bill proceeds on the basis that the UK Parliament and devolved legislatures have full competence to legislate for the NHS, even whilst an EU member state or if otherwise subject to EU rules.
Clause 2 – Abolition of the duties of autonomy
This clause would repeal the two sections inserted into the 2006 Act which require the Secretary of State and the NHS Commissioning Board, respectively, to have regard to the desirability of securing, so far as consistent with the interests of the health service, that any other person exercising functions in relation to the health service or providing services for its purposes is free to exercise those functions or provide those services in the manner that it considers most appropriate, and that unnecessary burdens are not imposed on any such person. These duties are incompatible with a national health service which the Secretary of State would, under this Bill, again have the duty to provide.
However, in order to minimise unhelpful political interference, certain elements of section 1D of the 2006 Act in relation to the Secretary of State’s power of directions would be retained under Clause 12 of the Bill.
Clause 3 – Secretary of State’s duty to provide certain services
This clause would insert a new section 3 into the NHS Act 2006.
The new section 3(1) would set out the five basic categories of services that it would be the Secretary of State’s duty to provide or secure the effective provision of:
the long-standing duty to provide the services listed in new subsection 3(2);
functions relating to high security psychiatric services (Clause 4);
duties and powers relating to provision of medical, dental, ophthalmic and pharmaceutical services (under Parts 4-7 of the NHS Act 2006);
functions in relation medical inspection of pupils, contraceptive services and provision of vehicles for disabled persons (Schedule 1 of the 2006 Act, as amended by Schedule 1 of this Bill); and
functions regarding information (Clause 7).
The new section 3(2) would reinstate the duty of the Secretary of State to provide “throughout England” hospital accommodation, services and facilities as in section 3(1) of the 2006 Act, re-applying the duty as it was before the 2012 Health and Social Care Act. This would replace the current duty on clinical commissioning groups (CCGs) to arrange provision for persons for whom they are responsible.
Clause 4 – High security psychiatric services
This would re-establish the Secretary of State’s duty to provide high security psychiatric hospitals and services under section 4(1) of the NHS Act 2006. The duty would also extend to maintaining the same, as under the 1977 NHS Act (but which was dropped under section 41 of the Health Act 1999).
Clause 5 (and Schedule 1) – Other services
Schedule 1 of the 2006 Act sets out a number of additional services in relation to which the Secretary of State had obligations, dating back to the 1977 Act and even, in some instances, the 1946 Act. They covered medical inspection of pupils, contraceptive services, vehicles for disabled persons, a microbiological service and research. The 2012 Act added provisions relating to the weighing and measuring of children (first introduced in 2008) and the supply of blood and human tissue. The obligations for most of these services would revert to the Secretary of State.
Clause 6 – Public health functions
The 2012 Act created public health functions as a new legal category of services, divided between the Secretary of State and local authorities. Neither of these bodies now have duties to provide or to secure provision or to make arrangements for provision as regards public health, only a metaphorically-expressed duty to “take steps” as they consider “appropriate” for protecting the public from disease or other health dangers or for improving the health of people.
Two sub-categories of public health functions were created – taking steps to protect the public in England from disease or other dangers to health (a function of the Secretary of State under s.2A of the NHS Act 2006); and taking steps to improve the health of the people in England or a local authority area (a function, respectively, of the Secretary of State and local authority under s.2B of that Act). The Secretary of State was also given a separate duty under section 1C to have regard to the need to reduce inequalities between the people of England with respect to the benefits that they can obtain from the health service.
Much concern has been expressed over what is happening to provision of public health services, particularly the impact of funding cuts, fragmentation of responsibilities, devaluing of public health expertise and the freedom of staff to express their honest professional opinions. It also seems that a consensus is yet to emerge amongst public health professionals as to how to improve the situation.
Clause 6 of the Bill offers a suggestion. It would strengthen the duties of the Secretary of State under sections 2A and 2B, flesh out and develop the current skeletal duty to reduce inequalities and bring the three duties together as an integral part of the NHS. Regulations would require other parts of government to have regard to the need to reduce inequalities, including as regards social and lifestyle factors (using wording from The National Health Service (General Medical Services) Regulations 1992 dealing with the duties of GPs in respect of newly registered patients).
These duties would then, under regulations, be delegated, as the case may, to Public Health England – currently an executive agency of the Department of Health – which would be re-established as a Special Health Authority; to a local authority, and /or to a Health Board under public health proposals and schemes under Clause 9(2)(a). How public health functions would be exercised in any given area would therefore be largely based on ‘bottom up’ proposals from the local authority and Health Board in that area, in consultation with Public Health England.
The regulations would also set out which public health activities need national bodies in order for them to be effectively carried out. Such activities would cover protection (e.g., from communicable disease outbreaks, specialised laboratory testing and disease surveillance, disaster preparedness, including chemical, biological, radiological and other environment hazard management such as air pollution and fracking); promotion (e.g., national health promotion campaigns for outbreaks or illnesses, common health conditions, and access to sports centres for weight loss); services (e.g., provision and management of national screening programmes for chlamydia and cervical cancer); improvement (e.g., policy recommendations based on scientific evidence for legislative purposes, such as on tobacco, minimum unit pricing for alcohol, and dietary levels of salt and fat; providing impartial, independent, expert advice to government on the health impacts of legislation); and intelligence (e.g., collation of local and regional data sources into standardized formats for comparative statistics to inform local and national policy).
Clause 7 (and Schedule 2) – Integrated Health Boards and Special Health Authorities
This Clause would establish Strategic Integrated Health Boards and Local Integrated Health Boards as public statutory bodies with the primary function of together providing and supporting provision of services on the behalf of the Secretary of State (see Clause 8). The Local Integrated Health Boards would become the heart of NHS services on the ground, and the Strategic Boards would operate regionally. The regions and areas they would cover would be determined after consultation with, in particular, devolved authorities and trade unions, and consideration of the draft local schemes and regional proposals worked up locally (see Clause 9).
Schedule 2 sets out how membership of the Boards would be determined. The Schedule draws from the membership provisions for Health and Well-being Boards, as well as the Scottish and Welsh Health Boards, and Regional Health Authorities under the 1977 NHS Act.
Public Health England would be formed as a Special Health Authority. The Health and Social Care Information Centre would also revert to its previous status as a Special Health Authority for the purposes of the collection, analysis, use and dissemination of information and the issuing of administrative identification numbers. This would reverse the 2012 Act’s establishment of the Centre as a body corporate, and sections 250-277 of the 2012 Act would be repealed.
Clause 8 – Primary functions of Integrated Health Boards
Clause 8 would impose the primary function on both Boards to provide and support provision of health services, which would include needs assessment and planning. The exact delineation of the different activities as between the Boards would depend on the local schemes and regional proposals submitted and approved under Clause 9.
The Clause makes clear that the integration of all health services, including public health services, would fall under the primary function (subject to regulations under Clause 6(6) and the public health scheme and proposals under Clause 9(2)(a)), and would extend to integration of health and social care services but only after a review of social care services and a report by the Secretary of State to Parliament by the end of 2019 on the legislative changes that would be needed (e.g. in relation to funding, and structures) to enable effective, transparent and accountable integration.
Schedule 3 of the Bill sets out additional functions that Boards could carry out on behalf of the Secretary of State, subject to regulations. These cover arrangements with voluntary organisations. Only exceptional and short-term arrangements with commercial companies would be permitted.
Clause 8(5)(a) and (b) would prohibit ‘pay beds’ and private practise in NHS hospitals; and clause 8(5)(c) would prevent the Boards, when providing GP services, from making contracts with commercial companies such as Virgin and United Health (Alternative Provider Medical Services contracts).
Clause 9 – Establishing and managing Integrated Health Boards
Clause 9 places a duty on current NHS bodies – NHS England, clinical commissioning groups and trusts – and local authorities, including mayors and devolved bodies – to work out how best to establish and manage the Boards in their locality and region, how best to transfer functions and how they would carry out their functions transparently, accountably and in an integrated way. Their plans would be submitted as draft local schemes and regional proposals for the approval of the Secretary of State by 1 January 2021. These plans would extend to public health, and could extend to integration with social care services, subject to the preconditions relating to the review, report and enactment of legislative changes as referred to in Clause 8(2)(c) and 8(3).
Regulations would cover the detail of the procedure, and they would, for example, require disruption to be minimised, allow Boards to employ GPs, and allow any individual living in an area to participate in developing the plans.
The Boards would be subject to directions under Clause 12 from the Secretary of State, limited in order to minimise inappropriate political interference.
Clause 9(7) is intended to make clear that the Public Contracts Regulations 2015 – which set out rules on the award of public contracts as required by Directive 2014/24/EU on public procurement, and would not apply in any event after the EU ceases to be an EU Member State or to be subject to its laws – do not apply to arrangements made by the Health Boards, and none of those arrangements shall give rise to contractual rights or liabilities.
In carrying out their functions, the Boards would be obliged to consult with and have regard to the views of Community Health Councils.
Clause 10 – Administration of medical, dental, ophthalmic and pharmaceutical services
Clause 10 provides that the local Boards would administer the arrangements made under Parts 4-7 of the National Health Service Act 2006 for the provision of medical, dental, ophthalmic and pharmaceutical services for the area, and to perform such other functions relating to those services as may be prescribed.
Clause 11 – Special health authorities
Clause 11 makes clear that the Secretary of State retains full powers to establish Special Health Authorities for performing any functions which he or she may direct the body to perform on his or her behalf, or on behalf of any of the Boards.
Exercising this power, however, should not increase bureaucracy, and when it is exercised the Secretary of State would have to explain how bureaucracy will be reduced as a consequence.
Section 28A of the National Health Service Act 2006 is repealed, as this limits the duration of new Special Health Authorities to a maximum period of three years.
Clause 12 – Directions
This clause would give the Secretary of State a general but limited power of giving directions to the Boards, a Special Health Authority, the National Institute for Health and Care Excellence and the Health and Social Care Information Centre.
This power would not usually be unrestricted. The Secretary of State would be obliged to have regard to the desirability, so far as consistent with the interests of the health service and relevant to the exercise of the power in all circumstances, of protecting and promoting the health of patients and the public, and of the bodies being free to exercise their functions in the manner that they consider best calculated to promote the NHS.
Neither could the power be used to interfere with the professional independence of health service staff, including local authority and Public Health England staff. Their professional autonomy and right to participate in scientific and public debate on matters relating to health and health services would be guaranteed.
These directions must be contained in regulations, except in a genuine emergency, so that the exercise of executive power would be open to Parliamentary scrutiny and procedure.
This provision is a modified version of the duties of autonomy (the hands-off clauses, here and here) introduced by the 2012 Act and which would be abolished by Clause 2.
Clauses 13-15 – Abolition of NHS England, CCGs, NHS trusts and NHS foundation trusts
Once these bodies have by 2021 developed the draft schemes and proposals approved by the Secretary of State under Clause 9, they would be abolished and their functions transferred.
The cut-off date of 1st January 2021 is important. If it is too soon, the risk of not carrying out those tasks well is increased; if it is too late, the risk of vested interests seeking to delay implementation increases.
Clause 16 – Terms and conditions of staff transfers
Clause 16 would require the Secretary of State, after consultation with trade unions, to make regulations which would set out the terms and conditions applying to the transfer of staff from NHS trusts, NHS foundation trusts and CCGs to Health Boards, NHS England and other NHS bodies. These include entitlement to redundancy payments, particularly for senior staff whose job loss is technical rather than real. In making the regulations, regard must be had to minimising the loss of skills and disruption.
Clause 17 (and Schedule 4) – Community Health Councils
This clause (with Schedule 4) would re-establish Community Health Councils, with the duty of representing the interests of the local public in the health service. These were initially established under section 9 of the NHS Reorganisation Act 1973, and were abolished in England by section 22 of the NHS Reform and Health Care Professions Act 2002.
Clause 18 – Abolition of Monitor, Competition, Licensing, Pricing, Health Special Administration etc
Clause 18 would abolish Monitor, and repeal the other core market provisions in Part 3 of the 2012 Act covering competition, licensing, pricing and health special administration, including The National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 (SI 2013 No. 500).
Clause 19 – Continuity of mandatory services
Monitor has imposed licence conditions on NHS foundation trusts under which previously mandatory services – basically those which had to be provided, under the old NHS foundation trust authorisation system – ceased to be mandatory after April 2016, and a new list of services, characterised as Commissioner Requested Services (CRS), were put in place. Under its associated guidance issued in March 2013, Monitor asked commissioners to consider the then current list, and stated that it expected the number of mandatory (CRS) services to decrease as a result. Clause 19 would have the effect of annulling these licence conditions, which would not in any event apply once the Health Boards were up and running, and NHS foundation trusts and Monitor had been abolished.
Clause 20 – Collective bargaining of terms and conditions
This Clause, based on a draft kindly provided by John Hendy QC, with the help of Professor Keith Ewing, requires the Secretary of State to negotiate with NHS trade unions to establish ‘joint machinery’ for settling by negotiation the terms and conditions of NHS employment, with binding arbitration in default of agreement. The current arrangements of the NHS Staff Council and the Agenda for Change system, and of the Doctors’ and Dentists’ Review Body, as well as any other current arrangements for NHS workers not so covered, can remain in place if NHS employers and NHS trade unions agree.
Clause 21 – Ending PFI
This Clause would impose a new statutory duty on the Treasury a duty to minimise, and if possible end, the expenditure of public money on private finance initiatives in the NHS. To that end, the Treasury would be obliged to assess, explain and report to Parliament by 31 December 2019 on the financial obligations of the different NHS bodies holding PFI contracts, setting out its proposals for meeting its new statutory duty and outlining any legislation that would be needed in order to implement those proposals. Without mandating any particular mechanism, the Clause would require the Treasury in its report to Parliament to assess and explain the extent to which the new statutory duty can be fulfilled by transferring those financial obligations to the Treasury, by public ownership of the special purpose vehicles to which those obligations are owed, and/or by any other mechanism or combination of mechanisms. Until the new duty has been fulfilled, and in default of better alternatives, the financial obligations would become the obligations of the Treasury. Publication of all NHS PFI contacts would be required under Clause 21(5).
Clause 22 – Abolition of immigration health charge
Policy developments since 2010 have extended the charges for NHS services that people deemed to be visitors or migrants have to pay. The House of Commons Library provided an outline of the developments in October 2017.
The government now requires certain people to pay £200 annually (£150 for students) for healthcare as part of their immigration application. The 2017 Conservative Party manifesto stated that “we will increase the Immigration Health Surcharge, to £600 for migrant workers and £450 for international students” (page 67).
The charge is payable in advance when applying for leave to enter or remain in the UK or when applying for entry clearance. The legal basis for the Home Office levying the charge is the Immigration (Health Charge) Order 2015, amended in 2016 and 2017. The power to make such an order is set out in section 38 of the Immigration Act 2014.
Further, section 39 of that Act provides that people needing leave to enter or remain and not having it, and people who have limited leave to enter or remain, are not to be treated as ordinarily resident, “so ensuring they can potentially be charged for health services throughout the UK.”
Parliament first authorised the government to make regulations to charge people for health services if they do not usually live in the UK, in section 121 of the NHS Act 1977, and now in section 175 of the NHS Act 2006. Regulations were first made in 1982. New regulations were introduced in 2015, and under amendments made in 2017, payment must be made before providing secondary, community and other services (but not primary medical, dental or ophthalmic services) “unless doing so would prevent or delay the provision of— (a) an immediately necessary service; or (b) an urgent service”.
Clause 22 would repeal sections 38 and 39 of the 2014 Immigration Act as they offend against the fundamental principles of the NHS.
They are also potentially in violation of the United Kingdom’s long-standing international legal obligation under the International Covenant on Economic, Social and Cultural Rights to respect, protect and fulfil the right to health without discrimination. This was drawn to the government’s attention in July 2016 by the UN Committee responsible for supervising these obligations (original emphasis, hyperlink added):
“Access to health
55. The Committee is concerned that refugees, asylum seekers and refused asylum seekers, as well as Roma, Gypsies and Travellers, continue to face discrimination in accessing health-care services. The Committee notes that the Immigration Act 2014 has further restricted access to health services by temporary migrants and undocumented migrants (art. 12).
56. The Committee recommends that the State party take steps to ensure that temporary migrants and undocumented migrants, asylum seekers, refused asylum seekers, refugees and Roma, Gypsies and Travellers have access to all necessary health-care services and reminds the State party that health facilities, goods and services should be accessible to everyone without discrimination, in line with article 12 of the Covenant. The Committee draws the State party’s attention to its general comment No. 14 (2000) on the right to the highest attainable standard of health.”
Clause 23 – Exclusion of the NHS from trade deals and other treaties
This Clause would prevent the government from including the NHS in any part of the UK in any trade deal or other international agreements.
The Clause would also require the Secretary of State to review current international obligations, if any, which might affect the NHS, and report on the results of the review to Parliament in order for the public to understand transparently the current situation. This would include the effect in the UK, pre- and post-Brexit, of the EU commitments under the WTO’s General Agreement on Services’ Schedule of Specific Commitments.
Clause 24 – Commencement and transitional arrangements
Clause 24 gives flexibility as to the way in which the Act, except for section 1, is brought into effect; and thus the timescale for its implementation.
Central to this flexibility is making the abolition of NHS England, CCGs, NHS trusts andNHS foundation trusts, and the formal creation of the Health Boards, follow on from the performance (with local authorities) of their duty under Clause 9 to develop the ‘bottom up’ schemes and proposals for transferring functions to the Boards, their membership, performance of their functions and their internal management.
Judicial review judgement: the campaign moves on
Today the High Court handed down its judgement on the judicial review we brought against the Secretary of State for Health and Social Care and NHS England on their introduction of Accountable Care Organisations (ACOs). We had originally brought our claim on four grounds – two on the lack of proper consultation, one on the legality of the idea itself, and one on grounds of lack of clarity and transparency. We withdrew our claim on the consultation grounds when our opponents conceded that they would not proceed without a full national consultation, so this success was in the bag.
Unfortunately, the Court has found against us on the law on the other two grounds.
On legality – whilst making clear that he was not deciding on the merits of ACOs, and acknowledging that we raised “perfectly good and sensible questions … about the ACO policy and the limitations of the terms and conditions in the draft ACO Contract” – Mr Justice Green decided that the ACO policy is lawful because the Health and Social Care Act 2012 gives very broad discretion to Clinical Commissioning Groups when commissioning services.
And on clarity and transparency – whilst resoundingly rejecting the government’s argument that the principle did not apply “in relation to what by common accord is intended to amount to radical and transformational changes in the way in which health and social care is delivered” – he decided that the principle was not yet engaged.
There is more about the judgement at CrowdJustice
We have decided not to appeal against this decision for several reasons.
Apart from the extra costs involved, our opponents have already been forced to change their plans. In order to win the case, they had to argue that ACO contracts were just like other provider contracts, and not the fundamental change to the governance of the NHS that we know they intended. If you take the time to read the judgment which should soon be published on https://www.judiciary.uk/judgments/ you will see that the judge recounts in detail how their position changed as they began to appreciate the power of our claim. The commissioning functions of CCGs were to be – illegally – delegated to ACOs – but instead are now reinforced, and if the government wishes to continue on the original path to creating ACOs, primary legislation will be needed and CCGs will have to retain sufficient staff and resources. The Health and Social Care Select Committee has called for legislation, and the Prime Minister included the possibility of new legislation for the NHS in her speech a couple of weeks ago. In addition, the promised consultation will have to be lawfully conducted, and any eventual ACO contract – in Dudley, Manchester or wherever – will have to be lawfully entered into. 999 Call for the NHS are still engaged in legal action, seeking leave to appeal the decision in their judicial review, but for us, the campaign moves out of the courtroom – at least for now – and continues in the local and political arenas, and on to the consultation.
We are extremely grateful to the thousands of people who have allowed us to bring this challenge. Thank you again from the bottom of our hearts for all your encouragement and financial support. We do not believe that this has been wasted, and we hope you agree. We deeply regret the judgement and we imagine you will share our disappointment. But we hope its effect will be to strengthen resolve to hold the government to account during the consultation, and raise public awareness of the issues at stake if contracts for billions of pounds of public money lasting ten or more years are awarded to new bodies not established by statute, which could be partly or wholly private companies, and which could outsource all their services if they wished.
Colin Hutchinson, Allyson Pollock, Sue Richards, Graham Winyard
July 9, 2017
Open letter to Jeremy Hunt on the 69th anniversary of the NHS
This first appeared on the Huffington Post 05 July 2017
Dear Mr Hunt
The 69th anniversary today of the National Health Service is a timely but sad occasion on which to draw your attention to the end of the service in England as we have known it, a service for which you have been responsible for over the last five years – the 29th minister since 1948.
All 28 of your predecessors had a legal duty to provide key health services. The Health and Social Care Act 2012 abolished that duty, and has since given free rein to the external market, building on the internal market introduced in 1990, its development through what are now semi-private NHS Foundation Trusts and the scale-up of the Private Finance Initiative under the Blair government. The dismantling and fragmenting effects of the Act are now being felt in your so-called ‘Sustainability and Transformation Plans’, reported to require £22-26 billion cuts from health and social care costs in five years. These are proceeding in tandem with local government devolution deals made, according to the New Economics Foundation, “between elites behind closed doors, with minimal, and posthoc public participation“, at the same time as the local government finance system is being radically and regressively re-designed, which will increase inequalities.
You are ideologically committed to the market, and the enormous waste of money, lack of strategic planning, and exploitation of staff which implementing it involves may be difficult for you to accept. But you have a moral and political obligation to do so.
We know that the market costs more, as a result of unnecessary services, excessive administrative costs, fraud, denial of care, profits, and other problems – about 30% of health spending in the US in 2009. We know that the £8.7 billion you state was spent on private sector providers of secondary care in 2015/16 – an increase to 7.7% of total NHS expenditure – is a gross under-estimate of how much public NHS money goes to private companies, as it excludes primary care and community and mental health care, contracts between trusts and such companies, management consultants, and legal fees and private finance payments. We know that competing for contracts takes clinical staff away from providing treatment. We know that NHS problems will be further exacerbated by the planned return to PFI (codenamed Project Phoenix) coupled with the Naylor Report on the disposal and further sell of NHS land and buildings.
We know that the market results in dominant providers competing for patients and engaging in risk selection, while fragmenting services.
Cross-party support for lifting the public sector pay cap is welcome but it will not address the inefficiencies of the market or the lack of funding, nor will it help the many staff transferred out of the NHS under commercial contracts to the for-profit sector. Wages and terms and conditions of these staff are not routinely collected.
The 2012 Act marked the end of universality. Under your regressive plans to carve out and shift more health service functions to cash-strapped local authorities as part of the move to STPs, devolution, and so-called ‘integration’, the only recourse under current policy will be to cut and close NHS services, reduce entitlements, privatise care, and allow charging and sale of private health insurance – which is what the private sector is lobbying for.
Scotland and Wales, also underfunded by the Treasury, have abolished the internal market by removing the disruptive elements and made prescriptions free. Scotland has also made personal care free at point of delivery, allowing for integration of health and social care.
We call on you on to face up to the reality of the NHS in England that you have deliberately underfunded and prepared for cuts, closure and privatisation, and to support the NHS Reinstatement Bill.
Yours sincerely
Allyson Pollock and Peter Roderick
Co-authors of the NHS (Reinstatement) Bill
March 15, 2016
The abolition of the NHS in England
This first appeared in the Huffington Post UK on 14 March 2016
Written with Peter Roderick, co-author of the NHS Bill
On Friday, the cross party NHS Bill returned to the Commons for its second reading (watch the video). The Bill was filibustered by the Conservatives, and following only 17 minutes of debate, it was adjourned. The second reading is unlikely to continue.
Most people are probably unaware of what’s happening. But increasingly the market is invading. Virgin now has over 300 NHS contracts, and an active litigation department. They have successfully prevented commissioners in Hull from allowing local GPs to run primary care services, and are facing a legal challenge from the local trust in Kent to their £128 million contract because of concerns about patient and staff safety. Meanwhile Monitor the regulator has now issued 114 private provider licences. The amount spent by local commissioners and trusts on non-NHS providers went up from £6.6 billion in 2009 to £10 billion in 2014. Industry analysts estimate the community services market to be worth £10bn-to £20bn annually. Trade unions have described “a surge in privatisation“.
Nick Clegg said in 2010 that “breaking up the NHS is exactly what you do need to do“. It’s a painful irony that this is one of the more successful things the coalition government achieved. Its 2012 Health and Social Care Act, piloted by Andrew Lansley, abolished the duties of the Secretary of State to provide and secure services in accordance with the Act, and to provide listed health services throughout England. The latter was replaced by a duty on over 200 new clinical commissioning groups to make contracts for those services for persons for whom each CCG is responsible and establishing the NHS Commissioning Board (NHS England). NHS trusts were prospectively abolished, with the intention of them all becoming NHS foundation trusts which can now receive 49% of their income from outside the NHS. “Public health” functions were created as two legal categories split between the Secretary of State and local authorities, and carved out of the NHS. Virtually compulsory contractual tendering for providing NHS services was introduced and Monitor’s role as an economic regulator was extended with functions aimed at preventing anti-competitive practices.
But the rot didn’t begin with Lansley’s Act. Ken Clarke started it in 1990 with his great split. He ended direct management of services by health authorities and created “purchasers” and “providers”, turning hospitals into ‘NHS trusts’ with borrowing powers, and their own finance, human resources and PR departments. New Labour built on that by scaling up the exorbitantly expensive Private Finance Initiative, so that for one hospital built we may be paying for two. Alan Milburn paved the way for foundation trusts, and now runs a very profitable private healthcare consultancy, while Lansley advises Bain & Company, which helps healthcare companies with their strategy.
Politicians pushing laws from which they then benefit corrode the political process, and these laws have wasted billions of pounds, year on year. The purchaser-provider split was introduced to open up the market in health services. Providers compete for patients and service income. Lawyers, accountants and management consultants are needed to administer – and challenge – the market, and they can’t do their jobs without pulling clinicians away from theirs. Quantifying the costs of a market bureaucracy is fraught with difficulty, but the costs of a market bureaucracy are significantly more than the costs of a public bureaucracy. The House of Commons Select Committee in 2010 was “appalled” that the four most senior civil servants in the Department of Health could not tell them the cost of the market.The usually-cited figures for NHS administrative costs are about 5% before the 1980s, and 14% by 2005 – whilst in the US in 2009, about 30% was wasted on unnecessary services, excessive administrative costs, fraud, and other problems. Professor Paton puts the extra cost of the NHS market at about £5 billion.
This sickening state of affairs need not continue, but it will unless Parliament passes a law to stop it. The NHS Bill aims to do this, by restoring the duty to provide and returning the NHS in England to full public ownership, as in Scotland and Wales, based on bottom-up proposals developed by current commissioners, trusts and local authorities with patients, voluntary organisations, trade unionists and academics.
The most common criticism of the Bill from those who can’t see the wood for the trees is that the last thing the NHS needs is another top-down major reorganisation. Nobody wants unnecessary disruption, but massive and expensive fragmentation and disorganisation is currently underway and this is appreciated by many who work in the NHS – hence support for the Bill from Unite and the BMA.
Over 62,000 people have signed a petition urging MPs to turn up in the Commons on Friday and to support the Bill. We wait to see whether they are worthy of our trust.
March 9, 2016
Note on children’s rugby injury data
Listeners to More or Less on BBC Radio 4 have asked where I got the data to make the points that
rugby players up to the age of 18 or 19 had a 28% chance of getting injured over a season of 15 matches (ie, with a million children playing every year with this risk of injury there could be at 300,000 extra injuries a year, including up to 100,000 concussions)
90% of injuries resulted in more than seven days lost from school
Probability of injury in a season ranges from 12% to 90% depending on study characteristics including injury definitions used (see table 3, page 92 of Allyson Pollock, Tackling rugby: what every parent should know about injuries Verso 2014).
A more recent systematic review (with more studies) showed probability of a player being injured in a season ranged from 6% to 90% with 28% risk of injuries (pooled-incidence estimate) regardless of need for medical attention in a season (Andreas Freitag et al. Systematic review of rugby injuries in children and adolescents under 21 years British Journal of Sports Medicine 2015).
The Ulster study of schoolboys showed that of the 825 boys playing in a season, there were 426 injuries, and a player had a 36.8% risk of injury (the number of children experiencing one or more injuries in a season was 304 or 36.8%) (HAP Archbold et al. RISUS study: Rugby injury surveillance in Ulster schools British Journal of Sports Medicine 2015).
I have applied these probabilities to the RFU projections of targeting rugby in 750 state schools and one million children – the lowest estimate of injuries is 100,000 (based on the lowest probability of 12% in the book). Using the 28% figure in the systematic review gives 280,000 which has been rounded up to 300,000, but of course the number of injuries could be much much higher.
Concussion. Data in the Ulster study show concussion accounted for one in five of all injuries. Our systematic review showed 0.3% to 11.4% risk of concussion injury in a season (Graham Kirkwood et al. Concussion in youth rugby union and rugby league: a systematic review British Journal of Sports Medicine 2014).
The largest prospective study available estimates a probability of 11.4% of child or adolescent rugby union players sustaining concussion over a season, equivalent to between one and two players in every school or club youth rugby team sustaining a concussion every season on average. Applying the 11.4% figure to the one million children gives up to 110,000 concussions, or 100,000 rounded down.
Time loss. A key finding of the Ulster study was the high proportion of severe injuries. It showed that approximately 90% of injuries resulted in at least seven days of time loss. Indeed, the total time loss to injury was 18,091 days, with an average of 646 player days lost per school, per season. This is equivalent to 92 weeks of time loss, or each school losing approximately four players for an entire season. Approximately, half of all injuries resulted in more than 28 days’ time loss; with the majority due to fractures of hand/finger/thumb, sprains to the ankle or knee, sprains or dislocations of the shoulder, or concussion. Fractures and dislocations were the most severe injuries in terms of requirement for surgical intervention and extensive time lost from participation, which is consistent with previous reports. A key concern is that time loss injuries may also necessitate extended school absence and have greatest potential for long-term morbidity; however, this was not measured in the present study.
Allyson M. Pollock's Blog
- Allyson M. Pollock's profile
- 4 followers
