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.

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.

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.

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)

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.

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.

The latest casualty of health reform: casualty itself

Published in The Guardian 04 April 2013

A&E departments are the pressure valve of the health system, yet the government is moving rapidly to turn it off

Accident and emergency departments are serially failing to meet targets, according to official figures released this week – which only confirmed what those aware of the growing pressures on hospitals already know.

Department of Health data revealing a repeated failure to deal with 95% of A&E patients within the recommended four-hour timeframe emerged shortly after the East of England ambulance service took the unprecedented step of erecting a “major incident tent” in which to treat patients outside the Norfolk and Norwich University hospital, in order to relieve pressure on its A&E unit over the Easter weekend. David Cameron’s recent attack on migrants’ use of NHS services diverts attention from the real story of what is happening to our accident and emergency services.

The Health and Social Care Act 2012, which provides a legal basis for charging and providing fewer services – in effect abolishing the NHS – has in fact removed the word “accident” from “accident and emergency services”. The significance of referring only to emergency care is now becoming apparent.

In January my local hospital, along with many others, erected large “STOP” signs in the entrance hall. “STOP – do you really need A and E? If your condition is not a serious, life-threatening emergency you may be directed to more appropriate health services.” A&E is being redefined as only for life-threatening conditions, when for more than 60 years it has provided urgent care and attention to all – whether it be a child with a rash and a high temperature, a road traffic injury or an adult with a heart attack. Patients are not physicians: everyone who goes to accident and emergency has an unmet need for a medical opinion.

The accident and emergency department is the pressure valve, the last point of entry to funded care when all other routes are closed, the canary in the mineshaft: when A&E admissions rise, it is a signal that there are problems in all the other parts of the system. And A&E attendances are continuing to rise now. Hospitals have started to advise us that if our emergency is “not life-threatening”, our first choice should be to go to a local pharmacist. Pharmacists are, for the most part, employed in private, for-profit pharmacies, all with commercial conflicts of interest, namely to sell medicines and treatments that we do not need.

And what of the alternatives? Out-of-hours services, including NHS111, are difficult to access, increasingly privatised and not trusted by patients. GPs no longer have an open-ended 24-hour duty of care. Services once integral to family medicine are being broken up and privatised.

Now the government is moving to turn off this pressure valve at breakneck speed, and its proposals could close more than 24 NHS hospitals and A&E departments across the country.

All these hospital service closures are being triggered by commercialisation and efficiency savings. A multibillion-pound debt mountain has been created by the obligations of the private finance initiative, which is gobbling up hospitals’ income and leaving less and less behind to pay for nurses and care.

Government claims that closures are necessary for centralisation and quality of care are poppycock. Although the national health service returned a surplus of in excess of £3bn to the Treasury over the past two years, healthcare trust deficits are behind the mergers that are driving A&E closures. The only beneficiaries of hospital closures are doctors in private practice, the corporate chains operating private health insurance and, waiting in the wings, private hospitals.

The new bodies unleashed by the Health and Social Care Act – clinical commissioning groups (CCGs) – are offering GPs enormous financial inducements to reduce the number of visits made to emergency departments and admissions (bizarre when they have no control over out-of-hours care). American health industry software can be used to identify those repeat offenders among us who are at high risk of A&E attendance. The same software can be used to penalise GPs whose patients are persistent attenders at A&E. The NHS confederation has proposed extending NHS user charges for hospital and GP visits, or capping the number of visits, quite ignoring decades of research evidence about the catastrophic effect that this would have on access and the poor.

Taking another leaf from the US industry’s book, the new act gives providers and CCGs extraordinary freedom to decide which patients they will take, what services will be provided, and who will be treated free. Today patients in England must show proof of residency to join a GP’s practice; tomorrow it is likely that proof of CCG membership will be required to be given access to any service, including emergency treatment and care. Entitlement will no longer be something we can all take for granted.

The deletion of “accident” from accident and emergency services; the softening up of the public to accept that emergency services are only for life-threatening conditions; the forced closures of A&E departments and the complete break-up of GP services – all this follows from the act that is dissolving the NHS.

Our only hope lies in slowing down the rate of commercialisation and service closures. A political campaign to reinstate the NHS has begun. Earlier this year David Owen laid the National Health Service (amended duties and powers) bill in the House of Lords. Its purpose is to restore the duty of the secretary of state to provide and secure comprehensive healthcare throughout England – a duty that has been in force since 1948.

Bad science concerning NHS competition is being used to support the controversial Health and Social Care Bill

Published on the LSE blog, 05 March 2012

http://blogs.lse.ac.uk/politicsandpolicy/2012/03/05/bad-science-nhs-competition/

The drip feed of pro-competition studies from Zack Cooper at LSE raises serious questions for the academic community and the public about what constitutes bad science and what to do about its politicisation. Recently, on 21 February in the columns of the FT, the Cooper and colleague Julian Le Grand warded off serious scientific criticisms of the studies with an ad hominem attack, categorising those in favour of competition as empiricists and those whose work is critical of markets in health care as intuitivists. In so doing they sweep aside decades of careful economic theory and evidence which shows why markets do not work in health services and distract the reader from the facts that their work is ungrounded and far from empirical. Their repeated claims that competition in the NHS saves lives and improves quality and productivity have no scientific basis.

In July 2011, Cooper and colleagues at the LSE press-released an unpublished paper to coincide with the prime minister’s announcement on the Future Forum which had been set up in response to deep public concerns about the Health and Social Care (HSC) Bill. These concerns resulted in the government suspending the legislative process for two months to undertake a ‘listening exercise’ with the public. The FT and The Economist put their paper centre stage in the HSC Bill debate. The authors were sufficiently persuasive for the prime minister to declare that “competition is one way we can make things work better for patients. This isn’t ideological theory. A study published by the London School of Economics found hospitals in areas with more choice had lower death rates.” The study in question claimed that “using [acute myocardial infarction] AMI mortality as a quality indicator, … mortality fell more quickly (i.e. quality improved) for patients living in more competitive markets after the introduction of hospital competition (to the NHS) in January 2006”.

The major improvements in outcome after acute myocardial infarction can be attributed to improvements in primary prevention in general practice and in hospital care, including the introduction of percutaneous IV angiography. The government’s own cardiac Tzar, Sir Roger Boyle, was sufficiently angered by their claims to respond with withering criticism: “AMI is a medical emergency: patients can’t choose where to have their heart attack or where to be treated!” It is “bizarre to choose a condition where choice by consumer can have virtually no effect”. Patients suffering “severe pain in emergencies clouded by strong analgesia don’t make choices. It’s the ambulance driver who follows the protocol and drives to the nearest heart attack centre”.

The intervention that the authors claimed reduced heart attacks and was a proxy for competition was patient choice. In 2006, patients were given choices of hospitals including private for-profit providers for some selected treatments. Less than the half patients surveyed in 2008 even remember being given a choice, and only a tiny proportion made those choices based on data from the NHS choices website. If patient choice was one of the two key elements of competition, it wasn’t prevalent and rather than being derived from the authors’ data, it was assumed.

Crucially, even if patient choice had occurred it does not explain why heart attack mortality rates fell. There is no biological mechanism to explain why having a choice of providers for elective hip and knee operations surgery (including hospitals which did not treat or admit acute MI patients) could affect the overall outcomes from acute myocardial infarction where patients do not exercise choice over where they are treated.

The problem of data dredging is well known; if you repeat an analysis often enough significant statistical associations will appear. But the authors make the cardinal error of not understanding their data and of confusing minor statistical associations with causation. Deaths from acute MI are not a measure of quality of hospital care, rather a measure of access to and quality of cardiology care. At best, what the paper appears to show is not the effect of choice on heart attacks but that if an individual has a heart attack in an area close to a hospital and their GP is near the hospital, then outcomes are better, but such findings are not new.

Cooper’s working paper which the government cited as supporting their reforms was subsequently published in the Economic Journal. That it got through that journal’s peer-review process is perhaps indicative of the poor understanding of healthcare and routine data from reviewers of that journal. Our response to their flawed work was published in a peer-reviewed piece in the Lancet. They responded with mainly ad hominem attack and we again responded with scientific criticism.

Last week Cooper and colleagues were at it again with another working paper (as yet unpublished in an academic journal) that was once again miraculously timed to coincide with an important event; the prime minister’s summit on the NHS Bill. This time the authors claim that length of stay fell more rapidly in NHS hospitals experiencing greater competition and that the risk of cherry picking by the private sector made a case for risk adjusted price. Once again, the authors were careless with the data and the study design.

There are three problems with their analysis of the data: they seem unaware that lengths of stay differ between the conditions they examine; they ignore the political context in which the data was generated; and finally, they show little knowledge of the particularities of the conditions they include and how these will affect the data.

Cooper and his colleagues use the average length of stay for four conditions, elective hip replacements, knee replacements, hernia repairs and arthroscopies, each of which differs widely in lengths of stay. Arthroscopy is usually done as an outpatient and may not be recorded on hospital episode statistics. Hernia repair is usually a day case although the average overall length of stay varies by type of procedure and with median lengths of stay of one or two days. In contrast, hip and knee replacements have median lengths of post-operative stay of four or five days again depending on the procedures and morbidity, with average lengths of stay in 2010-11 ranging from 5.9 to 8.2 days for hip replacements and 5.5 to 5.8 for knees. (See the Information Centre inpatient and outpatient data)

Thus, if providers have switched to arthroscopies and hernia repairs or to operating on patients who are well and healthy they will appear to have shortened their pre-operative and post-operative length of stay to less than a day. So a provider’s length of stay will depend on the mixture of operations and mixture of patients and how far they travel. The authors appear to have made no attempt to examine differences in case mix and length of stay. This is a serious error.

Equally, the authors do not look at how clinical coding changed following the introduction of the tariff in 2006. Gaming, upcoding and diagnostic drift are widely recognised in research on the NHS in the 2000s, with providers seeking to improve and increase their payments through fraudulent billing and accounting. This will apply especially where hospitals are under severe financial pressures and have strong motivations and perverse incentives to change the coding procedures. Arthroscopy procedures, which previously have been coded as an outpatient activity or not at all (i.e. it would not have been counted as an admission), may now be recorded separately as a day case inpatient procedure. These changes in coding distort measures of productivity so that providers may appear to be more efficient as they appear to do more work than they actually do.

Finally, length of stay is also a product of a range of factors related to the conditions in their data; pre-operative work for hip and knee replacement needs to take account of rurality and patient fitness for discharge, especially if patients live alone and have other co-morbidities and complexities. Patients who live close to a hospital may come in as an outpatient, while patients who live some distance away may require overnight stays. The authors should also have looked at readmission rates; premature discharge can result in readmission. The authors have not attempted to examine any of these factors, and neither have they considered the effect of hospital concentration on their data.

Le Grand and Cooper call themselves ‘empiricists’ and all those that disagree with them ‘intuitivists’. Unlike scientists, however, they have made no ‘real life’ observations themselves from which they have generated their theories. They do not appear to have the basic understanding of clinical practice. They have not made predictions, tested their theories with experiments, or adapted their models to see if they can do anything other than provide one explanation of many that could be derived from historical data. Moreover, they ignore the factors that underpin the generation of data and the need to understand how it is constructed and shaped. Data dredging has resulted in statistical associations but association is not causation. Bad science makes bad policy and bad policy leads to careless talk. Careless talk will cost lives especially when it is used in support of the HSC Bill.