Allyson M. Pollock's Blog, page 3

Why I wrote to the government to ask them to remove the tackle from school rugby and put in place injury surveillance

(This blog was first published on Better Health For All (the blog of the Faculty of Public Health) on 08 March 2015)

On 2nd March 2016, along with 70 other academics, doctors, and public health professionals, I wrote an open letter to ministers of health, education, and sport, chief medical officers, and children’s commissioners in the four nations of the UK, as well as in the Republic of Ireland. We asked them to consider the evidence and remove the collision elements of rugby within British and Irish school systems, so that children play touch and non-contact rugby.

The UK government has selected rugby union and rugby league as two of five sports it will focus on to increase the prominence of competitive sport in schools. It hopes to put 1,300 links in place between schools and rugby union organisations, and 1,000 links with rugby league, and wants to recruit one million school children to the game in England across 750 state schools.

Our concern is that rugby is a high-impact collision sport with a high rate and risk of injury. Although there is no comprehensive injury surveillance in the UK, studies show that the risk of injury for a child rugby player varies from 12% to 90% over a season of 15 games, depending on the definition used.

A systematic review puts the average risk of injury at around 28%. These injuries include fractures, ligamentous tears, dislocated shoulders, spinal injuries, and head injuries, which can have short-term, life-long, and life-ending consequences for children

The risk of concussion for a child or adolescent rugby union player over a season is 11% – that’s the equivalent of one or two players sustaining a concussion every season in every school or club rugby team of 15 players.

Contact is where the majority of injuries occur. Research also points to the tackle being a particular cause for concern. In studies of youth rugby, tackles were found to be responsible for up to two thirds of all injuries and 87% of concussions.

Given that children are more susceptible to injuries such as concussion, the absence of injury surveillance systems and primary prevention strategies in the UK is worrying. For far too long the rugby unions have chosen to hide behind the lack of comprehensive nation wide data citing this as insufficient evidence meanwhile ignoring the evidence that has been collected over decades.

The four rugby unions of England, Scotland, Wales, and Ireland have responded to concerns and criticisms with many initiatives, including concussion management protocols, but none have been evaluated. Furthermore, these initiatives are concerned with management of injury and not prevention, and comprehensive injury surveillance has been relatively neglected.

Editor-in-chief of the British Medical Journal, Fiona Godlee, has called the current state of monitoring and prevention of rugby injury in schools a “scandal” and last year a BMJ poll of doctors confirmed that 72% felt the game should be made safer.

Injury prevention requires radical changes to the laws of the game. It means removing the collision element, namely the tackle. Martin Raftery, the medical director of World Rugby, has stated that the laws of rugby may have to change to reduce concussion risk, but World Rugby is dragging its feet in dealing with the dangerous tackle.

The key problem is that it is the sport’s own governing bodies that determine the laws of the game for children. World Rugby determines the laws even at school level but its interests are in the professional game and business, not children. The link between the professional game and the children’s game should be severed – governance of the children’s game should not be determined by World Rugby and the rugby unions.

If the game is rolled out to one million school children in England, and the tackle and collision remain a part of the game, children will be left exposed to serious and catastrophic risk of injury, and on the basis of current studies the potential number of avoidable injuries could rapidly approach at least 100,000-300,000 a year.

Parents expect the state to look after their children when they are at school, and do not expect their children to be injured. However, neither parents nor children are given information on injury risks and causes in this sport.

Even more worrying is the fact that many secondary schools in the UK deliver contact rugby as a compulsory part of the physical education curriculum from age eleven – children and their parents do not have the option to opt out of a situation that risks bringing children serious harm.

Children who want to play the tackle version can always join a club, but they shouldn’t be forced to play contact rugby as part of the national curriculum when there is such a significant risk.

As a signatory to the UN Convention on the Rights of the Child, the UK and Irish governments now need to take all necessary steps to inform children and to protect them from mental and physical injury and abuse, and to ensure the safety of rugby. Injury surveillance and monitoring in hospital emergency departments and by schools must be a priority so that data on sports and other activities can be collected. Until the government can show that harms and injuries have been minimised it should remove the contact from the children’s game in schools.

Why I wrote to the government to ask them to remove the tackle from school rugby and put in place injury surveillance

On 2nd March 2016, along with 70 other academics, doctors, and public health professionals, I wrote an open letter to ministers of health, education, and sport, chief medical officers, and children’s commissioners in the four nations of the UK, as well as in the Republic of Ireland. We asked them to consider the evidence and remove the collision elements of rugby within British and Irish school systems, so that children play touch and non-contact rugby.

The UK government has selected rugby union and rugby league as two of five sports it will focus on to increase the prominence of competitive sport in schools. It hopes to put 1,300 links in place between schools and rugby union organisations, and 1,000 links with rugby league, and wants to recruit one million school children to the game in England across 750 state schools.

Our concern is that rugby is a high-impact collision sport with a high rate and risk of injury. Although there is no comprehensive injury surveillance in the UK, studies show that the risk of injury for a child rugby player varies from 12% to 90% over a season of 15 games, depending on the definition used.

A systematic review puts the average risk of injury at around 28%. These injuries include fractures, ligamentous tears, dislocated shoulders, spinal injuries, and head injuries, which can have short-term, life-long, and life-ending consequences for children

The risk of concussion for a child or adolescent rugby union player over a season is 11% – that’s the equivalent of one or two players sustaining a concussion every season in every school or club rugby team of 15 players.

Contact is where the majority of injuries occur. Research also points to the tackle being a particular cause for concern. In studies of youth rugby, tackles were found to be responsible for up to two thirds of all injuries and 87% of concussions.

Given that children are more susceptible to injuries such as concussion, the absence of injury surveillance systems and primary prevention strategies in the UK is worrying. For far too long the rugby unions have chosen to hide behind the lack of comprehensive nation wide data citing this as insufficient evidence meanwhile ignoring the evidence that has been collected over decades.

The four rugby unions of England, Scotland, Wales, and Ireland have responded to concerns and criticisms with many initiatives, including concussion management protocols, but none have been evaluated. Furthermore, these initiatives are concerned with management of injury and not prevention, and comprehensive injury surveillance has been relatively neglected.

Editor-in-chief of the British Medical Journal, Fiona Godlee, has called the current state of monitoring and prevention of rugby injury in schools a “scandal” and last year a BMJ poll of doctors confirmed that 72% felt the game should be made safer.

Injury prevention requires radical changes to the laws of the game. It means removing the collision element, namely the tackle. Martin Raftery, the medical director of World Rugby, has stated that the laws of rugby may have to change to reduce concussion risk, but World Rugby is dragging its feet in dealing with the dangerous tackle.

The key problem is that it is the sport’s own governing bodies that determine the laws of the game for children. World Rugby determines the laws even at school level but its interests are in the professional game and business, not children. The link between the professional game and the children’s game should be severed – governance of the children’s game should not be determined by World Rugby and the rugby unions.

If the game is rolled out to one million school children in England, and the tackle and collision remain a part of the game, children will be left exposed to serious and catastrophic risk of injury, and on the basis of current studies the potential number of avoidable injuries could rapidly approach at least 100,000-300,000 a year.

Parents expect the state to look after their children when they are at school, and do not expect their children to be injured. However, neither parents nor children are given information on injury risks and causes in this sport.

Even more worrying is the fact that many secondary schools in the UK deliver contact rugby as a compulsory part of the physical education curriculum from age eleven – children and their parents do not have the option to opt out of a situation that risks bringing children serious harm.

Children who want to play the tackle version can always join a club, but they shouldn’t be forced to play contact rugby as part of the national curriculum when there is such a significant risk.

As a signatory to the UN Convention on the Rights of the Child, the UK and Irish governments now need to take all necessary steps to inform children and to protect them from mental and physical injury and abuse, and to ensure the safety of rugby. Injury surveillance and monitoring in hospital emergency departments and by schools must be a priority so that data on sports and other activities can be collected. Until the government can show that harms and injuries have been minimised it should remove the contact from the children’s game in schools.

Risk of privatisation of the Scottish NHS in the event of a no vote

The Coalition Government abolished the public NHS in England when it passed the Health and Social Care Act in 2012. This Act didn’t directly affect the NHS in Wales, Scotland and Northern Ireland, but could have grave long-term consequences for the NHS in the devolved nations, including Scotland.

The Act effectively reduces the NHS to a funding stream and a logo. Behind the logo, corporations bid for health contracts in a regulated market. Privatisation of the NHS has hitherto been incremental as successive governments have passed legislation to promote privatisation. But this Act, described by Lord David Owen as the ‘secretary of state abdication bill’, removes the duty on the secretary of state for health to secure and provide comprehensive health care. So the rate of privatisation and closure of NHS services is accelerating across the country.

Since 2003, government policy in England has been to channel billions of pounds of scarce NHS funds to the for-profit private sector. For example the ‘independent sector treatment centre’ programmes diverted more than £5bn, and the government has recently announced that all GP services will go out to tender for private providers. The consequences of the market are felt every day as people see local services closing, and experience real reductions in access to diminished services – from struggling A&E departments to outsourced cancer care. Loss of NHS services mean people will have no choice but to go without or pay for health care through health insurance or out of their own pocket.

Handing the NHS to the market is a highly inefficient way of delivering health care, introducing new costs that are not experienced in public systems. There is mounting evidence that the English NHS is paying for work regardless of whether it is done or not: with one contract, Netcare did not perform nearly 40% of the work it had been contracted to do, receiving £35.1m for patients it never treated. The English NHS is on a track towards the US system, where commercialisation results in around $750 billion wasted each year due to overtreatment, undertreatment, and billing, invoicing, and marketing costs.

Aneuran Bevan, the founder of the NHS, said the NHS will last as long as there are folk left with the faith to fight for it. Here in England a number of health experts are working on a new Bill to restore and reinstate the NHS in England so that people will once again enjoy the same rights as are currently enjoyed by their relatives and friends in Wales and in Scotland. But the abolition of the NHS in England means decisions and control increasingly rest with commercial providers and the role of regulators is to keep the market operational, not to meet people’s needs or to ensure equity of access and access according to need.

If the English NHS is not restored, consequences for Scotland are serious. The NHS in Scotland may not be suffering these changes, but funding for the NHS in Scotland is allocated through the Barnett formula, so any reduction in NHS funds in England translates into reduced funding for Scotland.

The consensus that once bound the UK is breaking down due harsh policies enacted in England by the current government. Policy differences between Scotland and England are growing. Education, long term care and NHS are key examples of where Scotland takes a different direction on policy, but remains under the stranglehold of the Westminster Treasury. A Yes vote in the referendum would free Scotland from this stranglehold, and allow politicians in Scotland to control public finances as well as NHS policy.

But protecting the NHS is not just a question of funding; it is a question of political will and determination. People in Scotland must take more active steps to protect the Scottish NHS from international market predators and ensure that services delivered and provided are both effective and efficient. The Scottish NHS is not perfect and we must safeguard against the introduction of charges, especially if health and social care are merged and integrated. There are some things that should not be for sale in the market but should be available on the basis of need, and in the referendum Scots should make a decision that safeguards the principles of access and universality for health care and for education.

The vision of an NHS, which is there when you need it and free at the point of delivery, is part of our social contract. We, the people, own our NHS, and politicians have to be brought to account for the decisions they make. The NHS was formed as a result of the consensus that came about after two world wars, when so many gave their lives. But across the United Kingdom, our shared entitlements are now at risk and our NHS is based on different principles in different nations.

Promoting the principles of a public NHS will require creating new alliances across the regions and countries of the UK. Vested corporate interests are so keen on breaking up the welfare state and our entitlements and rights not just in the UK but across Europe. These interests need to be challenged by developing new economics. For international investors and US corporations the health systems of the countries UK are seen as the unopened oyster ready to be privatised and exploited – hence the controversial debates and opposition to TTIP – the Trans-Atlantic Trade and Investment Partnership between the USA and Europe that could make NHS privatisation irreversible.

Popular sovereignty and self-determination are the crucial route to upholding political principles. English governments have acquiesced to private interests. People in Scotland should uphold the principles of a public NHS when they vote in the referendum in September, and choose the way and means to defend our vital principles. At the present time, and in the absence of any reversal of neoliberal policies in England, the clearest way to defend and promote the principle of a public NHS is to vote for Scotland to have full powers and responsibilities of an independent country.

Protecting confidential patient information and promoting public health research

Summary

In December 2013, NHS England directed the Health and Social Care Information Centre to establish a system for uploading and linking GP patient coded data with identifiers, using its new powers in Part 9 of the Health and Social Care Act 2012. In February, after an effective campaign by the British Medical Association, the Royal College of General Practitioners and medConfidential, a six-month delay was announced.

In March the government sought to amend the Care Bill in the House of Commons in a bid to allay concerns about patient confidentiality. Its amendments, however, were criticised as inadequate, and the Bill is due to come before the House of Lords on 07 May. The fiasco and the rushed legislative response are symptoms of the government’s privatisation agenda trumping patient confidentiality and the need to collect and use data for public health research, planning and audit.

We set out below three proposed amendments to the Care Bill which we consider are needed to help restore public trust in the handling of patient information.

Proposed amendment 1: retaining control and management of confidential information

This amendment would ensure as a general rule that disclosure to and use of confidential information by commercial organisations involved in health and social care is not permitted. Three clear and mainly consent-based exceptions to this general rule are proposed; and, in addition, it would not apply to future “section 251 approvals” or to drug trials.

Proposed amendment 2: putting the Independent Information Governance Oversight Panel on a statutory footing

This amendment would place on a statutory footing the current non-statutory Independent Information Governance Oversight Panel chaired by Dame Fiona Caldicott and set up by the Secretary of State with the main function of advising on information governance across the health and social care system.

Proposed amendment 3: independent oversight over certain directions and the accreditation scheme

This amendment would revoke the directions made by NHS England in December 2013 in order to implement the Care.data programme, and ensure independent oversight of the Secretary of State’s and NHS England’s directions to the Health and Social Care Information Centre, and of the awaited Secretary of State’s regulations to establish an accreditation scheme for private sector information providers.

We set out and explain further each of the proposed amendments below.

Proposed amendment (1)

Retaining control and management of confidential information

Insert the following new section into Part 9 of the Health and Social Care Act 2012-

Control and management of confidential information

(1) Subject to subsections (3), (4) and (5), nothing in this Part shall permit or require the collection, analysis, publication, dissemination or other processing of confidential information by or to any person which is a relevant commercial organisation.

(2) Subject to subsections (3), (4) and (5), any confidential information held at the date this subsection comes into force by any person which is a relevant commercial organisation shall not be processed and shall be held subject to directions from the Secretary of State.

(3) Subsections (1) and (2) shall not apply if and to the extent that the confidential information has been disclosed to the relevant commercial organisation:

(a) by the individual to whom the information relates, or

(b) in the lawful exercise of a statutory power and not in breach of any professional regulation,

and, in either case, one of the three conditions set out in subsection (4) applies.

(4) The conditions referred to in subsection (3) are:

(a) the purpose of the processing has been previously disclosed to the individual to whom the information relates and his prior express consent has been obtained, or

(b) the individual to whom the information relates is dead or is a minor, the purpose of the processing has been previously disclosed to his next of kin or his parent or guardian, as the case may be, and their prior express consent has been obtained, or

(c) previous disclosure and prior express consent was reasonably and manifestly impracticable and the organisation holding the information acted reasonably in all the circumstances.

(5) This section does not apply to aggregated information provided to a person which has been designated an accredited information service provider under section 267.

(6) In this section:

“confidential information” means information which—

(a) identifies any individual to whom the information relates who is not an individual who provides health care or adult social care, or

(b) enables the identity of such an individual to be ascertained.

“processing” in relation to information has the same meaning as in the Data Protection Act 1998; and “processed” shall be construed accordingly;

“professional regulation” means any regulation, rule, standard, advice, guidance or recommendation applicable to the person disclosing the information and adopted by a regulatory body listed in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002;

“relevant commercial organisation” means:

(a) a body which is incorporated under the law of any part of the United Kingdom and which carries on a business (whether there or elsewhere) relating to health and social care,

(b) any other body corporate (wherever incorporated) which carries on a business, or part of a business, in any part of the United Kingdom, relating to health or social care,

(c) a partnership which is formed under the law of any part of the United Kingdom and which carries on a business (whether there or elsewhere) relating to health or social care, or

(d) any other partnership (wherever formed) which carries on a business, or part of a business, in any part of the United Kingdom, relating to health or social care.

Explanation

The purpose of this amendment is to ensure as a general rule that disclosure to and use of confidential information by commercial organisations (as defined by the Bribery Act 2010, section 7) involved in health and social care is not permitted.

The general rule is in two parts. The first part is set out in subsection (1) and applies to the future. It would apply to confidential information which might in the future be processed under the new provisions in Part 9 of the Health and Social Care Act 2012. It would not apply to processing under future approvals under The Health Service (Control of Patient Information) Regulations 2002 (commonly referred to as “section 251 approvals”). This reflects the higher level of trust in the longer-established s.251 approval process.

The second part is set out in subsection (2) and applies to the past. Because of the present lack of transparency as regards which private companies already hold confidential patient information, for what purposes (including internal corporate group use), under which legal powers and subject to what legal restrictions, this subsection would apply to confidential information held by companies at the time the subsection came into effect. Before the subsection came into effect, the intention is that the Secretary of State would investigate, publish and consult on these aspects, and thereafter give directions to the commercial organizations concerned as to how they should deal with the confidential information.

Three categories of exception to the general rule are proposed. First, it would not apply where the organisation (such as a GP practice operating in partnership or as a limited company or a private health company offering publically-funded GP or other services) had obtained the information from the individual himself or herself, the purpose of the processing was previously disclosed to the individual, and his or her prior express consent was obtained.

Second, it would not apply where the information was disclosed to the relevant commercial organisation in the lawful exercise of a statutory power and not in breach of any professional rule or standard (for example, established by the General Medical Council or similar professional regulator), the processing purpose had been previously disclosed to the individual and he or she had given express consent.

Third, it would not apply to aggregated information provided to private sector information service providers accredited under regulations which the Secretary of State may make under section 267 of the Health and Social Care Act 2012, on the assumption that such regulations would be adopted after approval by The Independent Oversight Panel or under the super-affirmative resolution procedure (see Proposed Amendments (2) and (3)).

If individuals have died or are children, their next of kin’s or parental consent should have been obtained. Consent and previous disclosure would not be needed where this would have been reasonably and manifestly impracticable, provided the person holding the information has acted reasonably in all the circumstances (which could involve, for example, having advertised the intended use and made attempts to identify and locate the individuals concerned).

This amendment is not intended to apply to the pre-marketing trials of new drugs, which require participants’ consent, or to post-marketing surveillance and pharmacovigilance obligations of drug companies under drug regulation law.

Proposed amendment (2)

Putting the Independent Information Governance Oversight Panel on a statutory footing

Insert the following new section into the Care Bill –

The Oversight Panel

(1) There is to be a panel known as the Independent Information Governance Oversight Panel (referred to in this section as “the Oversight Panel”).

(2) The main duty of the Oversight Panel shall be to provide independent advice on all matters relating to the governance of information in relation to health and adult social care services.

(3) In exercising its main duty, the Oversight Panel shall:

(a) provide advice and make recommendations and proposals on such governance to the Secretary of State, and report annually; and

(b) provide advice on such governance to any other person or body in relation to health and adult social care services.

(4) Any person or body who is advised by the Oversight Panel pursuant to this section shall have regard to that advice.

(5) The Secretary of State may by regulations make provision about the Oversight Panel relating, in particular, to appointment of the chair and other members, terms of appointment, establishment and membership of committees or sub-committees, its proceedings and payment of remuneration, allowances and expenses.

Explanation

This amendment would place on a statutory footing the current non-statutory Independent Information Governance Oversight Panel chaired by Dame Fiona Caldicott and set up by the Secretary of State, as well as its present non-statutory terms of reference. It would also require persons and bodies across the health and social care system to have regard to its advice.

Reinstating independent statutory oversight of information governance is a prerequisite for public trust, after abolition in the 2012 Act of the National Information Governance Board. The Panel’s currently non-statutory annual reports and functions to advise and challenge would become legal duties to which regard must be had.

Proposed amendment (3)

Independent oversight over certain directions and the accreditation scheme

Insert the following new section into Part 9 of the Health and Social Care Act 2012-

Revocation and independent oversight

(1) The Health and Social Care Information Centre (Establishment of Information Systems for NHS Services: Collection and Analysis of Primary Care Data) Directions 2013 are revoked.

(2) Directions of the Secretary of State and of NHS England under section 254(1), and regulations under section 267 shall not be made without the approval of The Independent Information Government Oversight Panel.

Explanation

Subsection (1) of this amendment would revoke the directions made by NHS England in December 2013 in order to implement the Care.data programme.

Subsection (2) would ensure in the future independent oversight of the Secretary of State’s and NHS England’s directions to the Health and Social Care Information Centre under section 254 (1) of the 2012 Act, and of the regulations that the Secretary of State is empowered to make under s.267 to establish an accreditation scheme for private sector information providers, by requiring the previous approval of the Oversight Panel.

If the Oversight Panel was not to be put on a statutory footing (along the lines set out in Proposed Amendment (2)), we would propose that subsection (2) should read:

“(2) Directions of the Secretary of State and of NHS England under section 254(1), and regulations under section 267 shall not take effect unless an order has been made by the Secretary of State in accordance with the super-affirmative resolution procedure under section 18 of the Legislative and Regulatory Reform Act 2006; and the provisions of Part 1 of that Act shall apply to such an order as if it was to be made and was made under that Part.”

Procedure for super-affirmative resolution (para 3)

Protecting confidential patient information and promoting public health research

Protecting confidential patient information and promoting public health research. Three proposed amendments to the Care Bill

Summary

In December 2013, NHS England directed the Health and Social Care Information Centre to establish a system for uploading and linking GP patient coded data with identifiers, using its new powers in Part 9 of the Health and Social Care Act 2012. In February, after an effective campaign by the British Medical Association, the Royal College of General Practitioners and medConfidential, a six-month delay was announced.

In March the government sought to amend the Care Bill in the House of Commons in a bid to allay concerns about patient confidentiality. Its amendments, however, were criticised as inadequate, and the Bill is due to come before the House of Lords on 07 May. The fiasco and the rushed legislative response are symptoms of the government’s privatisation agenda trumping patient confidentiality and the need to collect and use data for public health research, planning and audit.

We set out below three proposed amendments to the Care Bill which we consider are needed to help restore public trust in the handling of patient information.

Proposed amendment 1: retaining control and management of confidential information

This amendment would ensure as a general rule that disclosure to and use of confidential information by commercial organisations involved in health and social care is not permitted. Three clear and mainly consent-based exceptions to this general rule are proposed; and, in addition, it would not apply to future “section 251 approvals” or to drug trials.

Proposed amendment 2: putting the Independent Information Governance Oversight Panel on a statutory footing

This amendment would place on a statutory footing the current non-statutory Independent Information Governance Oversight Panel chaired by Dame Fiona Caldicott and set up by the Secretary of State with the main function of advising on information governance across the health and social care system.

Proposed amendment 3: independent oversight over certain directions and the accreditation scheme

This amendment would revoke the directions made by NHS England in December 2013 in order to implement the Care.data programme, and ensure independent oversight of the Secretary of State’s and NHS England’s directions to the Health and Social Care Information Centre, and of the awaited Secretary of State’s regulations to establish an accreditation scheme for private sector information providers.

We set out and explain further each of the proposed amendments below.

Proposed amendment (1)

Retaining control and management of confidential information

Insert the following new section into Part 9 of the Health and Social Care Act 2012-

Control and management of confidential information

(1) Subject to subsections (3), (4) and (5), nothing in this Part shall permit or require the collection, analysis, publication, dissemination or other processing of confidential information by or to any person which is a relevant commercial organisation.

(2) Subject to subsections (3), (4) and (5), any confidential information held at the date this subsection comes into force by any person which is a relevant commercial organisation shall not be processed and shall be held subject to directions from the Secretary of State.

(3) Subsections (1) and (2) shall not apply if and to the extent that the confidential information has been disclosed to the relevant commercial organisation:

(a) by the individual to whom the information relates, or

(b) in the lawful exercise of a statutory power and not in breach of any professional regulation,

and, in either case, one of the three conditions set out in subsection (4) applies.

(4) The conditions referred to in subsection (3) are:

(a) the purpose of the processing has been previously disclosed to the individual to whom the information relates and his prior express consent has been obtained, or

(b) the individual to whom the information relates is dead or is a minor, the purpose of the processing has been previously disclosed to his next of kin or his parent or guardian, as the case may be, and their prior express consent has been obtained, or

(c) previous disclosure and prior express consent was reasonably and manifestly impracticable and the organisation holding the information acted reasonably in all the circumstances.

(5) This section does not apply to aggregated information provided to a person which has been designated an accredited information service provider under section 267.

(6) In this section:

“confidential information” means information which—

(a) identifies any individual to whom the information relates who is not an individual who provides health care or adult social care, or

(b) enables the identity of such an individual to be ascertained.

“processing” in relation to information has the same meaning as in the Data Protection Act 1998; and “processed” shall be construed accordingly;

“professional regulation” means any regulation, rule, standard, advice, guidance or recommendation applicable to the person disclosing the information and adopted by a regulatory body listed in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002;

“relevant commercial organisation” means:

(a) a body which is incorporated under the law of any part of the United Kingdom and which carries on a business (whether there or elsewhere) relating to health and social care,

(b) any other body corporate (wherever incorporated) which carries on a business, or part of a business, in any part of the United Kingdom, relating to health or social care,

(c) a partnership which is formed under the law of any part of the United Kingdom and which carries on a business (whether there or elsewhere) relating to health or social care, or

(d) any other partnership (wherever formed) which carries on a business, or part of a business, in any part of the United Kingdom, relating to health or social care.

Explanation

The purpose of this amendment is to ensure as a general rule that disclosure to and use of confidential information by commercial organisations (as defined by the Bribery Act 2010, section 7) involved in health and social care is not permitted.

The general rule is in two parts. The first part is set out in subsection (1) and applies to the future. It would apply to confidential information which might in the future be processed under the new provisions in Part 9 of the Health and Social Care Act 2012. It would not apply to processing under future approvals under The Health Service (Control of Patient Information) Regulations 2002 (commonly referred to as “section 251 approvals”). This reflects the higher level of trust in the longer-established s.251 approval process.

The second part is set out in subsection (2) and applies to the past. Because of the present lack of transparency as regards which private companies already hold confidential patient information, for what purposes (including internal corporate group use), under which legal powers and subject to what legal restrictions, this subsection would apply to confidential information held by companies at the time the subsection came into effect. Before the subsection came into effect, the intention is that the Secretary of State would investigate, publish and consult on these aspects, and thereafter give directions to the commercial organizations concerned as to how they should deal with the confidential information.

Three categories of exception to the general rule are proposed. First, it would not apply where the organisation (such as a GP practice operating in partnership or as a limited company or a private health company offering publically-funded GP or other services) had obtained the information from the individual himself or herself, the purpose of the processing was previously disclosed to the individual, and his or her prior express consent was obtained.

Second, it would not apply where the information was disclosed to the relevant commercial organisation in the lawful exercise of a statutory power and not in breach of any professional rule or standard (for example, established by the General Medical Council or similar professional regulator), the processing purpose had been previously disclosed to the individual and he or she had given express consent.

Third, it would not apply to aggregated information provided to private sector information service providers accredited under regulations which the Secretary of State may make under section 267 of the Health and Social Care Act 2012, on the assumption that such regulations would be adopted after approval by The Independent Oversight Panel or under the super-affirmative resolution procedure (see Proposed Amendments (2) and (3)).

If individuals have died or are children, their next of kin’s or parental consent should have been obtained. Consent and previous disclosure would not be needed where this would have been reasonably and manifestly impracticable, provided the person holding the information has acted reasonably in all the circumstances (which could involve, for example, having advertised the intended use and made attempts to identify and locate the individuals concerned).

This amendment is not intended to apply to the pre-marketing trials of new drugs, which require participants’ consent, or to post-marketing surveillance and pharmacovigilance obligations of drug companies under drug regulation law.

Proposed amendment (2)

Putting the Independent Information Governance Oversight Panel on a statutory footing

Insert the following new section into the Care Bill –

The Oversight Panel

(1) There is to be a panel known as the Independent Information Governance Oversight Panel (referred to in this section as “the Oversight Panel”).

(2) The main duty of the Oversight Panel shall be to provide independent advice on all matters relating to the governance of information in relation to health and adult social care services.

(3) In exercising its main duty, the Oversight Panel shall:

(a) provide advice and make recommendations and proposals on such governance to the Secretary of State, and report annually; and

(b) provide advice on such governance to any other person or body in relation to health and adult social care services.

(4) Any person or body who is advised by the Oversight Panel pursuant to this section shall have regard to that advice.

(5) The Secretary of State may by regulations make provision about the Oversight Panel relating, in particular, to appointment of the chair and other members, terms of appointment, establishment and membership of committees or sub-committees, its proceedings and payment of remuneration, allowances and expenses.

Explanation

This amendment would place on a statutory footing the current non-statutory Independent Information Governance Oversight Panel chaired by Dame Fiona Caldicott and set up by the Secretary of State, as well as its present non-statutory terms of reference. It would also require persons and bodies across the health and social care system to have regard to its advice.

Reinstating independent statutory oversight of information governance is a prerequisite for public trust, after abolition in the 2012 Act of the National Information Governance Board. The Panel’s currently non-statutory annual reports and functions to advise and challenge would become legal duties to which regard must be had.

Proposed amendment (3)

Independent oversight over certain directions and the accreditation scheme

Insert the following new section into Part 9 of the Health and Social Care Act 2012-

Revocation and independent oversight

(1) The Health and Social Care Information Centre (Establishment of Information Systems for NHS Services: Collection and Analysis of Primary Care Data) Directions 2013 are revoked.

(2) Directions of the Secretary of State and of NHS England under section 254(1), and regulations under section 267 shall not be made without the approval of The Independent Information Government Oversight Panel.

Explanation

Subsection (1) of this amendment would revoke the directions made by NHS England in December 2013 in order to implement the Care.data programme.

Subsection (2) would ensure in the future independent oversight of the Secretary of State’s and NHS England’s directions to the Health and Social Care Information Centre under section 254 (1) of the 2012 Act, and of the regulations that the Secretary of State is empowered to make under s.267 to establish an accreditation scheme for private sector information providers, by requiring the previous approval of the Oversight Panel.

If the Oversight Panel was not to be put on a statutory footing (along the lines set out in Proposed Amendment (2)), we would propose that subsection (2) should read:

“(2) Directions of the Secretary of State and of NHS England under section 254(1), and regulations under section 267 shall not take effect unless an order has been made by the Secretary of State in accordance with the super-affirmative resolution procedure under section 18 of the Legislative and Regulatory Reform Act 2006; and the provisions of Part 1 of that Act shall apply to such an order as if it was to be made and was made under that Part.”

Procedure for super-affirmative resolution (para 3)

Why the public should opt in to care.data and out of data privatisation

The NHS England leaflet ‘Better information means better care’, sent to every household in England, has triggered a campaign to encourage people to opt out of the new care.data system by telling their GP that they do not want their health records uploaded to it.

Opting out will undermine both the new system and our existing national statistics, while playing into the hands of the private sector, as it means data will be inadequate to assess the impact of government policies to privatise the NHS.

The aim of care.data is to link together coded records from general practice with data from other national data systems, starting with linkage to the Hospital Episode Statistics. The plans are to provide ‘linked data, that will eventually cover all care settings, both in and outside of hospital.’ This is explained by the Health and Social Care Information Centre and NHS England. England is well behind Scotland and Wales both in data linkage and in engaging with the public about it.

Care.data should not be confused with Summary Care Records , the purpose of which is to share clinical information between individual patients and the professionals who provide care to them. There are no plans to upload these records into care.data.

Although England has had NHS hospital data analysed at a national level for a long time, this has not been the case with data from general practice, where most care takes place. Because of this, the GP Extraction Service was set up in 2011 with a budget of £40m to extract data from general practice systems and analyse them at a national level for England. If this and the further data linkage works, it would provide valuable population-based statistical information for commissioners and public health officials, and for researchers allowing us to, for example, monitor inequalities in access and unmet need and changes in rates of heart disease and cancer.

The care.data system will cost over £50m and its web site gives no indications of any routine analyses to be done in-house. Meanwhile cuts of £9m to the Office for National Statistics include cuts of £1m in its statistical outputs, which will lead to the loss of a range of highly regarded health statistics. The future of the decennial census, which dates back to 1801 in England and Wales and is essential for public health as it provides data on the whole population, is also uncertain.

There are justifiable concerns that the government is preparing the way for the commercial exploitation and use of our NHS data and that the private sector will have priority in accessing the data for analysis. The person in charge of care.data, in his role as National Director for Patients and Information at NHS England, is former Sunday Times journalist, Tim Kelsey, founder of Dr Foster, which was the subject of a critical parliamentary Public Accounts Committee enquiry. Dr Foster analyses NHS patient data and then sells back the analyses to the NHS organisations that collect the data. Roger Taylor, co-founder of Dr Foster, has been appointed to a senior role in the Care Quality Commission, and Kingsley Manning has been appointed Chair of the Health and Social Care Information Centre. He was founder and managing director of health and information consultancy firm Newchurch, which provided advice on PFI and sell off of NHS assets, and former head of health at Tribal (now part of Capita). These corporate appointments are akin to putting bankers in charge of NHS hospitals.

To make matters worse, clinical commissioning groups do not analyse data in-house to inform their decisions. Since the Health and Social Care Act came into force, vital information functions have been outsourced to commissioning support units, organisations that have no basis in law and that are temporarily hosted by NHS England. Plans to float these organisations on the stock market have been suspended in favour of turning them into social enterprises, staff mutuals, customer controlled social enterprises, or joint ventures. Clinical commissioning groups should demand that these information functions and the associated NHS funds and staff be returned to them before any privatisation takes place.

Campaigners are concerned that pharmaceutical industry and health insurance companies will be simply ‘given’ the data, although Section 251 of the NHS Act 2006 requires them to state what uses will be made of data and how they will be stored securely. They will also have to answer similar questions from the Health and Social Care Information Centre’s Data Access Advisory Group. While applicants do not get ownership of the data they are able to use them and this raises serious questions about the purposes to which the data will be used and the extent to which analyses may be sold on. There is still no clarity or transparency about the ownership and control of the data, how the data will be accessed and used by the private sector, or how statistics about NHS funded private care will be made available to all.

We need reassurance from government that the data will be used to produce and publish national statistics in line with the National Statistics Code of Practice. The Code, overseen by the UK Statistics Authority, is designed to be observed by all the public bodies that produce official statistics. It is considered to be central to maintaining a unified statistical service that meets the needs of government and society and is both trustworthy and trusted.

As the government is privatising health care, it is crucial to have complete and high quality data to monitor the impact of these policies. The private sector has a poor track record for data collection. The atrocious quality of private sector data returns made it impossible to monitor contract compliance for independent sector treatment centres, the government’s £4bn programme for elective surgery, where NHS funds were diverted to for-profit providers. General practices owned by private companies such as Virgin and Serco will be protected from scrutiny if their patients opt out, as there will be no data about them –  as is already the case in nursing and residential care homes.

Instead a public campaign is needed to promote public data and oppose privatisation of both our healthcare services and data functions. Patients and the public need to make clear to NHS England that their consent for medical records to be uploaded to care.data is conditional on it not being used for commercial purposes or handed over to third parties such as drug companies and health insurance and health care corporations. Such a campaign must make links between opposing the privatisation of the data collection and analysis systems and opposing the privatisation of our health services, and must ensure that NHS England and Care Commissioning Groups oppose both.

Prof Alison Macfarlane

Professor of Perinatal Health

City University London

44 (0)20 7040 5832

Prof Allyson Pollock

Professor of Public Health Research and Policy

Queen Mary University of London

44 (0)20 7882 5637

Why the public should opt in to care.data and out of data privatisation

Why the public should opt in to care.data and out of data privatisation

The NHS England leaflet ‘Better information means better care’, sent to every household in England, has triggered a campaign to encourage people to opt out of the new care.data system by telling their GP that they do not want their health records uploaded to it.

Opting out will undermine both the new system and our existing national statistics, while playing into the hands of the private sector, as it means data will be inadequate to assess the impact of government policies to privatise the NHS.

The aim of care.data is to link together coded records from general practice with data from other national data systems, starting with linkage to the Hospital Episode Statistics. The plans are to provide ‘linked data, that will eventually cover all care settings, both in and outside of hospital.’ This is explained by the Health and Social Care Information Centre and NHS England. England is well behind Scotland and Wales both in data linkage and in engaging with the public about it.

Care.data should not be confused with Summary Care Records , the purpose of which is to share clinical information between individual patients and the professionals who provide care to them. There are no plans to upload these records into care.data.

Although England has had NHS hospital data analysed at a national level for a long time, this has not been the case with data from general practice, where most care takes place. Because of this, the GP Extraction Service was set up in 2011 with a budget of £40m to extract data from general practice systems and analyse them at a national level for England. If this and the further data linkage works, it would provide valuable population-based statistical information for commissioners and public health officials, and for researchers allowing us to, for example, monitor inequalities in access and unmet need and changes in rates of heart disease and cancer.

The care.data system will cost over £50m and its web site gives no indications of any routine analyses to be done in-house. Meanwhile cuts of £9m to the Office for National Statistics include cuts of £1m in its statistical outputs, which will lead to the loss of a range of highly regarded health statistics. The future of the decennial census, which dates back to 1801 in England and Wales and is essential for public health as it provides data on the whole population, is also uncertain.

There are justifiable concerns that the government is preparing the way for the commercial exploitation and use of our NHS data and that the private sector will have priority in accessing the data for analysis. The person in charge of care.data, in his role as National Director for Patients and Information at NHS England, is former Sunday Times journalist, Tim Kelsey, founder of Dr Foster, which was the subject of a critical parliamentary Public Accounts Committee enquiry. Dr Foster analyses NHS patient data and then sells back the analyses to the NHS organisations that collect the data. Roger Taylor, co-founder of Dr Foster, has been appointed to a senior role in the Care Quality Commission, and Kingsley Manning has been appointed Chair of the Health and Social Care Information Centre. He was founder and managing director of health and information consultancy firm Newchurch, which provided advice on PFI and sell off of NHS assets, and former head of health at Tribal (now part of Capita). These corporate appointments are akin to putting bankers in charge of NHS hospitals.

To make matters worse, clinical commissioning groups do not analyse data in-house to inform their decisions. Since the Health and Social Care Act came into force, vital information functions have been outsourced to commissioning support units, organisations that have no basis in law and that are temporarily hosted by NHS England. Plans to float these organisations on the stock market have been suspended in favour of turning them into social enterprises, staff mutuals, customer controlled social enterprises, or joint ventures. Clinical commissioning groups should demand that these information functions and the associated NHS funds and staff be returned to them before any privatisation takes place.

Campaigners are concerned that pharmaceutical industry and health insurance companies will be simply ‘given’ the data, although Section 251 of the NHS Act 2006 requires them to state what uses will be made of data and how they will be stored securely. They will also have to answer similar questions from the Health and Social Care Information Centre’s Data Access Advisory Group. While applicants do not get ownership of the data they are able to use them and this raises serious questions about the purposes to which the data will be used and the extent to which analyses may be sold on. There is still no clarity or transparency about the ownership and control of the data, how the data will be accessed and used by the private sector, or how statistics about NHS funded private care will be made available to all.

We need reassurance from government that the data will be used to produce and publish national statistics in line with the National Statistics Code of Practice. The Code, overseen by the UK Statistics Authority, is designed to be observed by all the public bodies that produce official statistics. It is considered to be central to maintaining a unified statistical service that meets the needs of government and society and is both trustworthy and trusted.

As the government is privatising health care, it is crucial to have complete and high quality data to monitor the impact of these policies. The private sector has a poor track record for data collection. The atrocious quality of private sector data returns made it impossible to monitor contract compliance for independent sector treatment centres, the government’s £4bn programme for elective surgery, where NHS funds were diverted to for-profit providers. General practices owned by private companies such as Virgin and Serco will be protected from scrutiny if their patients opt out, as there will be no data about them –  as is already the case in nursing and residential care homes.

Instead a public campaign is needed to promote public data and oppose privatisation of both our healthcare services and data functions. Patients and the public need to make clear to NHS England that their consent for medical records to be uploaded to care.data is conditional on it not being used for commercial purposes or handed over to third parties such as drug companies and health insurance and health care corporations. Such a campaign must make links between opposing the privatisation of the data collection and analysis systems and opposing the privatisation of our health services, and must ensure that NHS England and Care Commissioning Groups oppose both.

Prof Alison Macfarlane

Professor of Perinatal Health

City University London

44 (0)20 7040 5832

Prof Allyson Pollock

Professor of Public Health Research and Policy

Queen Mary University of London

44 (0)20 7882 5637

Don’t blame a ‘rotten NHS culture’ for the CQC cover-up

Published in The Guardian, Tuesday 25 June 2013

Market-led health reforms are leading to poor quality healthcare – and are giving managers incentives to hide failure

We now know that England’s healthcare regulator, the Care Quality Commission, tried to cover up an investigation into a hospital trust where babies were dying. This appalling tale has been spun to be about the “rotten culture” at the heart of the NHS. The true story of the Morecambe Bay cover-up, however – just like Mid Staffs, where hundreds of patients died – is one of market failure.

Two questions in particular have not been properly addressed. Why would the CQC be complicit in the cover-up of poor performance? And why was the University Hospitals of Morecambe Bay NHS foundation trust so desperate not to expose the failings at its Furness hospital? The answer to both questions lies with the new market system that brought the CQC into being, a system introduced by New Labour and implemented by the Tories.

In 2009 the CQC was just a month old when the first complaint about the trust landed on its desk. The NHS had never been regulated before. Previously under direct political control, and therefore publicly accountable, by 2009 the NHS was being moved to an arms-length, market-based system of inspection and enforcement. All direct public accountability was being stripped out.

In the new market-led NHS, the CQC is the quality regulator and Monitor the economic regulator. Monitor authorises NHS hospitals for the market, giving them foundation trust status – a halfway house to privatisation. Foundation trusts have powers to generate up to half their income privately, and can use half their beds and staff for that purpose. They can enter joint ventures with shareholders and corporations, and sell land and buildings and lease them back. In short, they have the power to redesign NHS services for the private sector, or franchise them to big business.

So, as with Mid Staffs, the goal of all hospital chief executives was to get foundation trust status. Performance was the key to getting this status, so Morecambe Bay, along with every other trust in the country, had a strong interest in covering up “serious untoward incidents“. For hospitals today, sharing such information is like signing your death warrant. And indeed, when the first reports of SUIs came through, Monitor suspended Morecambe Bay’s application for FT status. That was until CQC gave the green light.

According to Project Ambrose, the external report into the affair, the CQC was under-resourced for the enormous task of policing the myriad health services in the market place. Furthermore, it was obliged to register 378 NHS trusts by April 2010, all within a year of its own inception. Registration was a necessary part of market authorisation for foundation status given by Monitor.

The CQC might have given different information to Monitor, the report found, and Monitor might not have authorised Morecambe Bay if that information had been available. But that would have affected the timetable for FT status and the politicians wouldn’t have been happy: the Health and Social Care Act 2012 requires that most NHS hospitals be authorised as FTs by 2014 and NHS trusts phased out. A delay would have derailed plans for marketisation.

FT status is irreversible according to the law. Once a hospital is a foundation trust it can be closed if it fails to generate enough income, regardless of patient need – unless it has a private finance initiative scheme, in which case special measures are taken to protect it.

The government is embarked on a programme of hospital and service closure. It is using the failure regime for FTs to close down non-FT hospitals, such as the one in Lewisham. Services there are to be sacrificed to fund the South London Hospital Trust, which comprises three hospitals and six hungry PFI schemes. PFI currently consumes more than 16% of its income, compared to capital charges of 4% before PFI.

Today Morecambe Bay has a very large deficit of around £16m, and is in the process of making cuts. In March 2013, Monitor described it as one of the most “financially challenged” foundation trusts. It has no PFI, so its deficits will not be paid off with bailouts and subsidies, unlike the PFI hospital in neighbouring Cumbria.

The CQC is has a legal imperative to get the market up and running by developing the systems to register more than 22,000 health and social care providers. The real story of the CQC scandal is that market-led changes are creating deficits and poor quality of care, which managers must seek to conceal in order to survive. Central to the government’s NHS reforms is the concept of a well-regulated market. Behind the CQC controversy is an assumption that if a commercially run hospital is failing it has simply not been well enough regulated. But experience from the US shows that effective regulation of large healthcare corporations is impossible: we cannot afford it, or get the data necessary to carry it out. That is why the NHS had direct management in the first place.

Don’t blame a ‘rotten NHS culture’ for the CQC cover-up

Don’t blame a ‘rotten NHS culture’ for the CQC cover-up

Published in The Guardian, Tuesday 25 June 2013

Market-led health reforms are leading to poor quality healthcare – and are giving managers incentives to hide failure

We now know that England’s healthcare regulator, the Care Quality Commission, tried to cover up an investigation into a hospital trust where babies were dying. This appalling tale has been spun to be about the “rotten culture” at the heart of the NHS. The true story of the Morecambe Bay cover-up, however – just like Mid Staffs, where hundreds of patients died – is one of market failure.

Two questions in particular have not been properly addressed. Why would the CQC be complicit in the cover-up of poor performance? And why was the University Hospitals of Morecambe Bay NHS foundation trust so desperate not to expose the failings at its Furness hospital? The answer to both questions lies with the new market system that brought the CQC into being, a system introduced by New Labour and implemented by the Tories.

In 2009 the CQC was just a month old when the first complaint about the trust landed on its desk. The NHS had never been regulated before. Previously under direct political control, and therefore publicly accountable, by 2009 the NHS was being moved to an arms-length, market-based system of inspection and enforcement. All direct public accountability was being stripped out.

In the new market-led NHS, the CQC is the quality regulator and Monitor the economic regulator. Monitor authorises NHS hospitals for the market, giving them foundation trust status – a halfway house to privatisation. Foundation trusts have powers to generate up to half their income privately, and can use half their beds and staff for that purpose. They can enter joint ventures with shareholders and corporations, and sell land and buildings and lease them back. In short, they have the power to redesign NHS services for the private sector, or franchise them to big business.

So, as with Mid Staffs, the goal of all hospital chief executives was to get foundation trust status. Performance was the key to getting this status, so Morecambe Bay, along with every other trust in the country, had a strong interest in covering up “serious untoward incidents“. For hospitals today, sharing such information is like signing your death warrant. And indeed, when the first reports of SUIs came through, Monitor suspended Morecambe Bay’s application for FT status. That was until CQC gave the green light.

According to Project Ambrose, the external report into the affair, the CQC was under-resourced for the enormous task of policing the myriad health services in the market place. Furthermore, it was obliged to register 378 NHS trusts by April 2010, all within a year of its own inception. Registration was a necessary part of market authorisation for foundation status given by Monitor.

The CQC might have given different information to Monitor, the report found, and Monitor might not have authorised Morecambe Bay if that information had been available. But that would have affected the timetable for FT status and the politicians wouldn’t have been happy: the Health and Social Care Act 2012 requires that most NHS hospitals be authorised as FTs by 2014 and NHS trusts phased out. A delay would have derailed plans for marketisation.

FT status is irreversible according to the law. Once a hospital is a foundation trust it can be closed if it fails to generate enough income, regardless of patient need – unless it has a private finance initiative scheme, in which case special measures are taken to protect it.

The government is embarked on a programme of hospital and service closure. It is using the failure regime for FTs to close down non-FT hospitals, such as the one in Lewisham. Services there are to be sacrificed to fund the South London Hospital Trust, which comprises three hospitals and six hungry PFI schemes. PFI currently consumes more than 16% of its income, compared to capital charges of 4% before PFI.

Today Morecambe Bay has a very large deficit of around £16m, and is in the process of making cuts. In March 2013, Monitor described it as one of the most “financially challenged” foundation trusts. It has no PFI, so its deficits will not be paid off with bailouts and subsidies, unlike the PFI hospital in neighbouring Cumbria.

The CQC is has a legal imperative to get the market up and running by developing the systems to register more than 22,000 health and social care providers. The real story of the CQC scandal is that market-led changes are creating deficits and poor quality of care, which managers must seek to conceal in order to survive. Central to the government’s NHS reforms is the concept of a well-regulated market. Behind the CQC controversy is an assumption that if a commercially run hospital is failing it has simply not been well enough regulated. But experience from the US shows that effective regulation of large healthcare corporations is impossible: we cannot afford it, or get the data necessary to carry it out. That is why the NHS had direct management in the first place.

Why we need a political campaign to reinstate the NHS

Why we need a political campaign to reinstate the NHS

This blog first appeared on Left Foot Forward on 25 March 2013

At 2.36 on the afternoon of Tuesday 27 March, 2012 the Health and Social Care Bill 2011, repealing the legal foundations of the NHS in England, was given royal assent and became law.

Campaigning groups, NHS staff and professional organisations had fought for nearly 2 years against what must count as one of the most regressive pieces of UK legislation of the last 60 years.

That the bill became law in the end is testimony not to our robust democratic processes but to the autocratic power of government. The coalition came to office in May 2010 on a manifesto promising no further top-down reform of the NHS, and then promptly did the opposite.

The bill passed into law without an electoral mandate because no major political party or parliamentary institution in England was willing or able to defend the NHS. It was a constitutional outrage. Its passing marked the end of a National Health Service in England that for more than sixty years served as one of the most successful models in the world, widely praised and copied.

The UK NHS was created by national consensus in order to ensure that every citizen was guaranteed health care. Underpinning these arrangements was the secretary of state’s core duty to provide or secure a comprehensive health service, a duty repealed by the first clause of the Health and Social Care Act.

Repeal was the fulcrum of the free market agenda because the duty compelled the minister to allocate resources according to need instead of leaving allocation to market forces and unaccountable organisations.

In the absence of a ministerial responsibility, it now becomes possible to blur the boundaries between free health care and chargeable health and social care. Many NHS services are being transferred to local authorities, which can charge for care.

The Act also abolishes rules that make certain health services mandatory. Under this system, players in the health care market can choose the services they wish to provide and the patients for whom they provide.

The principle is not, as the coalition repeatedly claimed, increased patient choice but increased choice of patient.

The NHS has been an international model because it provided what no other country in the world has achieved at the same cost: universal health care in the form of equal access to comprehensive care irrespective of personal income.

For most of its existence the NHS was based on the principle that the poor, the chronically sick and the frail elderly would receive the best available care only if the rich received the same service. Since the 1970s and throughout the 1990s, we have witnessed a dismantling of publicly-funded and provided long-term care including nursing care for the elderly and the huge inequalities that have accompanied it.

As the 2012 Act is being implemented, corporations will have more say in determining our entitlement to free health services. In future, no single organisation will be responsible for ensuring the health care of all residents within an area and it will no longer be clear who should be held accountable when things go wrong.

Our relationship with our doctor will change when for-profit companies run more services. According to the Financial Times, Virgin already earns around £200 million a year by running more than 100 NHS services nationwide, including GP surgeries.

As patients we will no longer necessarily come first: how can we feel confident that our doctor is putting us first when he or she is a for-profit company employee?

It is clear that the government is manufacturing a crisis, reducing the level of services and their quality, and shaking public confidence in the NHS. But claims that we can no longer afford the NHS are untrue. The NHS is not over budget. Last year the NHS budget was under spent and £2 billion was returned to the Treasury.

This year it’s a similar story. Headline stories about hospital and other health service deficits only mean that resources are unfairly distributed not that the NHS is unaffordable overall.

The answer of course is political not financial. A new Act is needed to reinstate the NHS. These changes are the culmination of a transition from public to private responsibility as market dogma has penetrated, only to abolish, an institution that has defined us in our own eyes and internationally.

By removing the mandate on government to provide a health service, the Health and Social Care Act 2012 is the crowning achievement of the architects of this long recessional from universality. Our response must be political too.