The proposed National Health Service Reinstatement Bill, July 2018 – explanatory notes

These notes are intended to explain the Bill that was provided to Eleanor Smith, MP for Wolverhampton South West, for presentation in the House of Commons on 11th July 2018. [download pdf]

Overview

In short, the Bill proposes to fully restore the NHS in England by 2021 as an accountable public service by reversing nearly 30 years of marketization, by abolishing the purchaser-provider split, ending contracting and re-establishing public bodies which plan and provide integrated services and accountable to local communities.

The Bill gives flexibility in how it would be implemented, led by current bodies, including local authorities.

It would:

  • reinstate the government’s duty to provide the key NHS services throughout England, including hospitals, medical and nursing services, primary care, mental health and community services
  • integrate health services under the Secretary of State, whilst allowing delegation of public health services to local authorities, and allowing for integration of social care services following and subject to further legislation
  • declare the NHS to be a “non-economic service of general interest” and “a service supplied in the exercise of governmental authority” so asserting the full competence of Parliament and the devolved bodies to legislate for the NHS without being trumped by EU competition law (for so long as the UK is an EU Member State) and the World Trade Organization’s General Agreement on Trade in Services
  • exclude the NHS from international trade deals
  • require the NHS Commissioning Board (NHS England), clinical commissioning groups (CCGs), NHS trusts, NHS foundation trusts, and local authorities, including combined authorities and elected mayors, to develop a ‘bottom up’ process so that by 2021 services would be planned and provided without contracts through regional and local public bodies – which could cover more than one local authority area if there was local support, and taking into account English devolution – to be known as Strategic Integrated Health Boards and Local Integrated Health Boards
  • allow Health Boards to employ GPs, end pay beds and private practice in NHS hospitals and end contracts for GP services with commercial companies
  • abolish NHS England, CCGs, NHS trusts and NHS foundation trusts, following completion and approval by the Secretary of State of the Health Boards
  • repeal the competition and core marketization provisions of the 2012 Act, and abolish Monitor – the regulator of NHS foundation trusts, commercial companies and voluntary organisations
  • re-establish Community Health Councils to represent the interest of the public in the NHS
  • stop licence conditions taking effect which have been imposed by Monitor on NHS foundation trusts and that will have the effect of reducing by April 2016 the number of services that they currently have to provide
  • introduce a system for collective bargaining across the NHS
  • impose a duty on the Treasury to minimise, and if possible to end, the expenditure of public money on private finance initiatives in the NHS in England
  • abolish the legal provisions passed in 2014 requiring certain immigrants to pay for NHS services.

Clause-by-clause explanations

Clause 1 – Secretary of State’s duty as to health service

Clause 1(1) would reinstate the Secretary of State’s legal duty to provide the NHS in England. It would do so by effectively repealing the abolition of that duty as a result of section 1 of the Health and Social Care Act 2012, and by reproducing in essence the corresponding provision that applied from 1946 until 2006.

Until 2006, the government’s overarching duty had been “to promote in England a comprehensive health service” and for that purpose “to provide or secure effective provision of services in accordance with” the legislation. The NHS Act 2006 de-coupled the duty to provide from the duty to promote, and deleted the word ‘effective’. The Clause would reverse that de-coupling and deletion.

The title of section 1 of the 2006 Act (“Secretary of State’s duty to promote health service”) would revert to the title of section 1 of the National Health Service Act 1977, which made no distinction between the connected duties of promotion and provision.

A new section 1(3) would provide that the Secretary of State’s duty shall be exercised with a view to integrating provision of health and social care services in accordance with the Act. Clause 8(2) and (3) of the Bill make clear that this integration can only occur after a report the Secretary of State has reported to Parliament by the end of 2019 on the legislative changes that would be needed (e.g. in relation to funding, and structures) to enable effective, transparent and accountable integration.

For as long as the UK remains an EU Member State, or is subject to relevant EU laws, a new section 1(4)(a) would declare that the NHS is a “non-economic service of general interest”, with a view to preventing EU competition rules applying. This is a phrase that is used in the Treaty on European Union’s Protocol on Services of General Interest, which provides that “[t]he provisions of the Treaties do not affect in any way the competence of Member States to provide, commission and organise non-economic services of general interest”.

It is to be contrasted with the phrase “service of general economic interest”, which also appears in that Protocol. Article 14 of the Treaty gives the European Parliament and the Council power to make regulations establishing principles and setting conditions for operation of such services “particularly economic and financial conditions, which enable them to fulfil their missions”. This power is “without prejudice to the competence of Member States, in compliance with the Treaties, to provide, to commission and to fund such services”.

Under Article 106(2) of the Treaty, “[u]ndertakings entrusted with the operation of services of general economic interest…shall be subject to the rules contained in the Treaties, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Union.”

The NHS Reinstatement Bill proceeds on the basis that the UK Parliament and devolved legislatures have full competence to legislate for the NHS, even whilst an EU member state or if otherwise subject to EU rules.

Clause 2 – Abolition of the duties of autonomy

This clause would repeal the two sections inserted into the 2006 Act which require the Secretary of State and the NHS Commissioning Board, respectively, to have regard to the desirability of securing, so far as consistent with the interests of the health service, that any other person exercising functions in relation to the health service or providing services for its purposes is free to exercise those functions or provide those services in the manner that it considers most appropriate, and that unnecessary burdens are not imposed on any such person. These duties are incompatible with a national health service which the Secretary of State would, under this Bill, again have the duty to provide.

However, in order to minimise unhelpful political interference, certain elements of section 1D of the 2006 Act in relation to the Secretary of State’s power of directions would be retained under Clause 12 of the Bill.

Clause 3 – Secretary of State’s duty to provide certain services

This clause would insert a new section 3 into the NHS Act 2006.

The new section 3(1) would set out the five basic categories of services that it would be the Secretary of State’s duty to provide or secure the effective provision of:

  • the long-standing duty to provide the services listed in new subsection 3(2);
  • functions relating to high security psychiatric services (Clause 4);
  • duties and powers relating to provision of medical, dental, ophthalmic and pharmaceutical services (under Parts 4-7 of the NHS Act 2006);
  • functions in relation medical inspection of pupils, contraceptive services and provision of vehicles for disabled persons (Schedule 1 of the 2006 Act, as amended by Schedule 1 of this Bill); and
  • functions regarding information (Clause 7).

The new section 3(2) would reinstate the duty of the Secretary of State to provide “throughout England” hospital accommodation, services and facilities as in section 3(1) of the 2006 Act, re-applying the duty as it was before the 2012 Health and Social Care Act. This would replace the current duty on clinical commissioning groups (CCGs) to arrange provision for persons for whom they are responsible.

Clause 4 – High security psychiatric services

This would re-establish the Secretary of State’s duty to provide high security psychiatric hospitals and services under section 4(1) of the NHS Act 2006. The duty would also extend to maintaining the same, as under the 1977 NHS Act (but which was dropped under section 41 of the Health Act 1999).

Clause 5 (and Schedule 1) – Other services

Schedule 1 of the 2006 Act sets out a number of additional services in relation to which the Secretary of State had obligations, dating back to the 1977 Act and even, in some instances, the 1946 Act. They covered medical inspection of pupils, contraceptive services, vehicles for disabled persons, a microbiological service and research. The 2012 Act added provisions relating to the weighing and measuring of children (first introduced in 2008) and the supply of blood and human tissue. The obligations for most of these services would revert to the Secretary of State.

Clause 6 – Public health functions

The 2012 Act created public health functions as a new legal category of services, divided between the Secretary of State and local authorities. Neither of these bodies now have duties to provide or to secure provision or to make arrangements for provision as regards public health, only a metaphorically-expressed duty to “take steps” as they consider “appropriate” for protecting the public from disease or other health dangers or for improving the health of people.

Two sub-categories of public health functions were created – taking steps to protect the public in England from disease or other dangers to health (a function of the Secretary of State under s.2A of the NHS Act 2006); and taking steps to improve the health of the people in England or a local authority area (a function, respectively, of the Secretary of State and local authority under s.2B of that Act). The Secretary of State was also given a separate duty under section 1C to have regard to the need to reduce inequalities between the people of England with respect to the benefits that they can obtain from the health service.

Much concern has been expressed over what is happening to provision of public health services, particularly the impact of funding cuts, fragmentation of responsibilities, devaluing of public health expertise and the freedom of staff to express their honest professional opinions. It also seems that a consensus is yet to emerge amongst public health professionals as to how to improve the situation.

Clause 6 of the Bill offers a suggestion. It would strengthen the duties of the Secretary of State under sections 2A and 2B, flesh out and develop the current skeletal duty to reduce inequalities and bring the three duties together as an integral part of the NHS. Regulations would require other parts of government to have regard to the need to reduce inequalities, including as regards social and lifestyle factors (using wording from The National Health Service (General Medical Services) Regulations 1992 dealing with the duties of GPs in respect of newly registered patients).

These duties would then, under regulations, be delegated, as the case may, to Public Health England – currently an executive agency of the Department of Health – which would be re-established as a Special Health Authority; to a local authority, and /or to a Health Board under public health proposals and schemes under Clause 9(2)(a). How public health functions would be exercised in any given area would therefore be largely based on ‘bottom up’ proposals from the local authority and Health Board in that area, in consultation with Public Health England.

The regulations would also set out which public health activities need national bodies in order for them to be effectively carried out. Such activities would cover protection (e.g., from communicable disease outbreaks, specialised laboratory testing and disease surveillance, disaster preparedness, including chemical, biological, radiological and other environment hazard management such as air pollution and fracking); promotion (e.g., national health promotion campaigns for outbreaks or illnesses, common health conditions, and access to sports centres for weight loss); services (e.g., provision and management of national screening programmes for chlamydia and cervical cancer); improvement (e.g., policy recommendations based on scientific evidence for legislative purposes, such as on tobacco, minimum unit pricing for alcohol, and dietary levels of salt and fat; providing impartial, independent, expert advice to government on the health impacts of legislation); and intelligence (e.g., collation of local and regional data sources into standardized formats for comparative statistics to inform local and national policy).

Clause 7 (and Schedule 2) – Integrated Health Boards and Special Health Authorities

This Clause would establish Strategic Integrated Health Boards and Local Integrated Health Boards as public statutory bodies with the primary function of together providing and supporting provision of services on the behalf of the Secretary of State (see Clause 8). The Local Integrated Health Boards would become the heart of NHS services on the ground, and the Strategic Boards would operate regionally. The regions and areas they would cover would be determined after consultation with, in particular, devolved authorities and trade unions, and consideration of the draft local schemes and regional proposals worked up locally (see Clause 9).

Schedule 2 sets out how membership of the Boards would be determined. The Schedule draws from the membership provisions for Health and Well-being Boards, as well as the Scottish and Welsh Health Boards, and Regional Health Authorities under the 1977 NHS Act.

Public Health England would be formed as a Special Health Authority. The Health and Social Care Information Centre would also revert to its previous status as a Special Health Authority for the purposes of the collection, analysis, use and dissemination of information and the issuing of administrative identification numbers. This would reverse the 2012 Act’s establishment of the Centre as a body corporate, and sections 250-277 of the 2012 Act would be repealed.

Clause 8 – Primary functions of Integrated Health Boards

Clause 8 would impose the primary function on both Boards to provide and support provision of health services, which would include needs assessment and planning. The exact delineation of the different activities as between the Boards would depend on the local schemes and regional proposals submitted and approved under Clause 9.

The Clause makes clear that the integration of all health services, including public health services, would fall under the primary function (subject to regulations under Clause 6(6) and the public health scheme and proposals under Clause 9(2)(a)), and would extend to integration of health and social care services but only after a review of social care services and a report by the Secretary of State to Parliament by the end of 2019 on the legislative changes that would be needed (e.g. in relation to funding, and structures) to enable effective, transparent and accountable integration.

Schedule 3 of the Bill sets out additional functions that Boards could carry out on behalf of the Secretary of State, subject to regulations. These cover arrangements with voluntary organisations. Only exceptional and short-term arrangements with commercial companies would be permitted.

Clause 8(5)(a) and (b) would prohibit ‘pay beds’ and private practise in NHS hospitals; and clause 8(5)(c) would prevent the Boards, when providing GP services, from making contracts with commercial companies such as Virgin and United Health (Alternative Provider Medical Services contracts).

Clause 9 – Establishing and managing Integrated Health Boards

Clause 9 places a duty on current NHS bodies – NHS England, clinical commissioning groups and trusts – and local authorities, including mayors and devolved bodies – to work out how best to establish and manage the Boards in their locality and region, how best to transfer functions and how they would carry out their functions transparently, accountably and in an integrated way. Their plans would be submitted as draft local schemes and regional proposals for the approval of the Secretary of State by 1 January 2021. These plans would extend to public health, and could extend to integration with social care services, subject to the preconditions relating to the review, report and enactment of legislative changes as referred to in Clause 8(2)(c) and 8(3).

Regulations would cover the detail of the procedure, and they would, for example, require disruption to be minimised, allow Boards to employ GPs, and allow any individual living in an area to participate in developing the plans.

The Boards would be subject to directions under Clause 12 from the Secretary of State, limited in order to minimise inappropriate political interference.

Clause 9(7) is intended to make clear that the Public Contracts Regulations 2015 – which set out rules on the award of public contracts as required by Directive 2014/24/EU on public procurement, and would not apply in any event after the EU ceases to be an EU Member State or to be subject to its laws – do not apply to arrangements made by the Health Boards, and none of those arrangements shall give rise to contractual rights or liabilities.

In carrying out their functions, the Boards would be obliged to consult with and have regard to the views of Community Health Councils.

Clause 10 – Administration of medical, dental, ophthalmic and pharmaceutical services

Clause 10 provides that the local Boards would administer the arrangements made under Parts 4-7 of the National Health Service Act 2006 for the provision of medical, dental, ophthalmic and pharmaceutical services for the area, and to perform such other functions relating to those services as may be prescribed.

Clause 11 – Special health authorities

Clause 11 makes clear that the Secretary of State retains full powers to establish Special Health Authorities for performing any functions which he or she may direct the body to perform on his or her behalf, or on behalf of any of the Boards.

Exercising this power, however, should not increase bureaucracy, and when it is exercised the Secretary of State would have to explain how bureaucracy will be reduced as a consequence.

Section 28A of the National Health Service Act 2006 is repealed, as this limits the duration of new Special Health Authorities to a maximum period of three years.

Clause 12 – Directions

This clause would give the Secretary of State a general but limited power of giving directions to the Boards, a Special Health Authority, the National Institute for Health and Care Excellence and the Health and Social Care Information Centre.

This power would not usually be unrestricted. The Secretary of State would be obliged to have regard to the desirability, so far as consistent with the interests of the health service and relevant to the exercise of the power in all circumstances, of protecting and promoting the health of patients and the public, and of the bodies being free to exercise their functions in the manner that they consider best calculated to promote the NHS.

Neither could the power be used to interfere with the professional independence of health service staff, including local authority and Public Health England staff. Their professional autonomy and right to participate in scientific and public debate on matters relating to health and health services would be guaranteed.

These directions must be contained in regulations, except in a genuine emergency, so that the exercise of executive power would be open to Parliamentary scrutiny and procedure.

This provision is a modified version of the duties of autonomy (the hands-off clauses, here and here) introduced by the 2012 Act and which would be abolished by Clause 2.

Clauses 13-15 – Abolition of NHS England, CCGs, NHS trusts and NHS foundation trusts

Once these bodies have by 2021 developed the draft schemes and proposals approved by the Secretary of State under Clause 9, they would be abolished and their functions transferred.

The cut-off date of 1st January 2021 is important. If it is too soon, the risk of not carrying out those tasks well is increased; if it is too late, the risk of vested interests seeking to delay implementation increases.

Clause 16 – Terms and conditions of staff transfers

Clause 16 would require the Secretary of State, after consultation with trade unions, to make regulations which would set out the terms and conditions applying to the transfer of staff from NHS trusts, NHS foundation trusts and CCGs to Health Boards, NHS England and other NHS bodies. These include entitlement to redundancy payments, particularly for senior staff whose job loss is technical rather than real. In making the regulations, regard must be had to minimising the loss of skills and disruption.

Clause 17 (and Schedule 4) – Community Health Councils

This clause (with Schedule 4) would re-establish Community Health Councils, with the duty of representing the interests of the local public in the health service. These were initially established under section 9 of the NHS Reorganisation Act 1973, and were abolished in England by section 22 of the NHS Reform and Health Care Professions Act 2002.

Clause 18 – Abolition of Monitor, Competition, Licensing, Pricing, Health Special Administration etc

Clause 18 would abolish Monitor, and repeal the other core market provisions in Part 3 of the 2012 Act covering competition, licensing, pricing and health special administration, including The National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 (SI 2013 No. 500).

Clause 19 – Continuity of mandatory services

Monitor has imposed licence conditions on NHS foundation trusts under which previously mandatory services – basically those which had to be provided, under the old NHS foundation trust authorisation system – ceased to be mandatory after April 2016, and a new list of services, characterised as Commissioner Requested Services (CRS), were put in place. Under its associated guidance issued in March 2013, Monitor asked commissioners to consider the then current list, and stated that it expected the number of mandatory (CRS) services to decrease as a result. Clause 19 would have the effect of annulling these licence conditions, which would not in any event apply once the Health Boards were up and running, and NHS foundation trusts and Monitor had been abolished.

Clause 20 – Collective bargaining of terms and conditions

This Clause, based on a draft kindly provided by John Hendy QC, with the help of Professor Keith Ewing, requires the Secretary of State to negotiate with NHS trade unions to establish ‘joint machinery’ for settling by negotiation the terms and conditions of NHS employment, with binding arbitration in default of agreement. The current arrangements of the NHS Staff Council and the Agenda for Change system, and of the Doctors’ and Dentists’ Review Body, as well as any other current arrangements for NHS workers not so covered, can remain in place if NHS employers and NHS trade unions agree.

Clause 21 – Ending PFI

This Clause would impose a new statutory duty on the Treasury a duty to minimise, and if possible end, the expenditure of public money on private finance initiatives in the NHS. To that end, the Treasury would be obliged to assess, explain and report to Parliament by 31 December 2019 on the financial obligations of the different NHS bodies holding PFI contracts, setting out its proposals for meeting its new statutory duty and outlining any legislation that would be needed in order to implement those proposals. Without mandating any particular mechanism, the Clause would require the Treasury in its report to Parliament to assess and explain the extent to which the new statutory duty can be fulfilled by transferring those financial obligations to the Treasury, by public ownership of the special purpose vehicles to which those obligations are owed, and/or by any other mechanism or combination of mechanisms. Until the new duty has been fulfilled, and in default of better alternatives, the financial obligations would become the obligations of the Treasury. Publication of all NHS PFI contacts would be required under Clause 21(5).

Clause 22 – Abolition of immigration health charge

Policy developments since 2010 have extended the charges for NHS services that people deemed to be visitors or migrants have to pay. The House of Commons Library provided an outline of the developments in October 2017.

The government now requires certain people to pay £200 annually (£150 for students) for healthcare as part of their immigration application. The 2017 Conservative Party manifesto stated that “we will increase the Immigration Health Surcharge, to £600 for migrant workers and £450 for international students” (page 67).

The charge is payable in advance when applying for leave to enter or remain in the UK or when applying for entry clearance. The legal basis for the Home Office levying the charge is the Immigration (Health Charge) Order 2015, amended in 2016 and 2017. The power to make such an order is set out in section 38 of the Immigration Act 2014.

Further, section 39 of that Act provides that people needing leave to enter or remain and not having it, and people who have limited leave to enter or remain, are not to be treated as ordinarily resident, “so ensuring they can potentially be charged for health services throughout the UK.”

Parliament first authorised the government to make regulations to charge people for health services if they do not usually live in the UK, in section 121 of the NHS Act 1977, and now in section 175 of the NHS Act 2006. Regulations were first made in 1982. New regulations were introduced in 2015, and under amendments made in 2017, payment must be made before providing secondary, community and other services (but not primary medical, dental or ophthalmic services) “unless doing so would prevent or delay the provision of— (a) an immediately necessary service; or (b) an urgent service”.

Clause 22 would repeal sections 38 and 39 of the 2014 Immigration Act as they offend against the fundamental principles of the NHS.

They are also potentially in violation of the United Kingdom’s long-standing international legal obligation under the International Covenant on Economic, Social and Cultural Rights to respect, protect and fulfil the right to health without discrimination. This was drawn to the government’s attention in July 2016 by the UN Committee responsible for supervising these obligations (original emphasis, hyperlink added):

“Access to health

55. The Committee is concerned that refugees, asylum seekers and refused asylum seekers, as well as Roma, Gypsies and Travellers, continue to face discrimination in accessing health-care services. The Committee notes that the Immigration Act 2014 has further restricted access to health services by temporary migrants and undocumented migrants (art. 12).

56. The Committee recommends that the State party take steps to ensure that temporary migrants and undocumented migrants, asylum seekers, refused asylum seekers, refugees and Roma, Gypsies and Travellers have access to all necessary health-care services and reminds the State party that health facilities, goods and services should be accessible to everyone without discrimination, in line with article 12 of the Covenant. The Committee draws the State party’s attention to its general comment No. 14 (2000) on the right to the highest attainable standard of health.”

Clause 23 – Exclusion of the NHS from trade deals and other treaties

This Clause would prevent the government from including the NHS in any part of the UK in any trade deal or other international agreements.

The Clause would also require the Secretary of State to review current international obligations, if any, which might affect the NHS, and report on the results of the review to Parliament in order for the public to understand transparently the current situation. This would include the effect in the UK, pre- and post-Brexit, of the EU commitments under the WTO’s General Agreement on Services’ Schedule of Specific Commitments.

Clause 24 – Commencement and transitional arrangements

Clause 24 gives flexibility as to the way in which the Act, except for section 1, is brought into effect; and thus the timescale for its implementation.

Central to this flexibility is making the abolition of NHS England, CCGs, NHS trusts andNHS foundation trusts, and the formal creation of the Health Boards, follow on from the performance (with local authorities) of their duty under Clause 9 to develop the ‘bottom up’ schemes and proposals for transferring functions to the Boards, their membership, performance of their functions and their internal management.

Judicial review judgement: the campaign moves on

Today the High Court handed down its judgement on the judicial review we brought against the Secretary of State for Health and Social Care and NHS England on their introduction of Accountable Care Organisations (ACOs). We had originally brought our claim on four grounds – two on the lack of proper consultation, one on the legality of the idea itself, and one on grounds of lack of clarity and transparency. We withdrew our claim on the consultation grounds when our opponents conceded that they would not proceed without a full national consultation, so this success was in the bag.

Unfortunately, the Court has found against us on the law on the other two grounds.

On legality – whilst making clear that he was not deciding on the merits of ACOs, and acknowledging that we raised “perfectly good and sensible questions … about the ACO policy and the limitations of the terms and conditions in the draft ACO Contract” – Mr Justice Green decided that the ACO policy is lawful because the Health and Social Care Act 2012 gives very broad discretion to Clinical Commissioning Groups when commissioning services.

And on clarity and transparency – whilst resoundingly rejecting the government’s argument that the principle did not apply “in relation to what by common accord is intended to amount to radical and transformational changes in the way in which health and social care is delivered” – he decided that the principle was not yet engaged.

There is more about the judgement at CrowdJustice

We have decided not to appeal against this decision for several reasons.

Apart from the extra costs involved, our opponents have already been forced to change their plans. In order to win the case, they had to argue that ACO contracts were just like other provider contracts, and not the fundamental change to the governance of the NHS that we know they intended. If you take the time to read the judgment which should soon be published on https://www.judiciary.uk/judgments/ you will see that the judge recounts in detail how their position changed as they began to appreciate the power of our claim. The commissioning functions of CCGs were to be – illegally – delegated to ACOs – but instead are now reinforced, and if the government wishes to continue on the original path to creating ACOs, primary legislation will be needed and CCGs will have to retain sufficient staff and resources. The Health and Social Care Select Committee has called for legislation, and the Prime Minister included the possibility of new legislation for the NHS in her speech a couple of weeks ago. In addition, the promised consultation will have to be lawfully conducted, and any eventual ACO contract – in Dudley, Manchester or wherever – will have to be lawfully entered into. 999 Call for the NHS are still engaged in legal action, seeking leave to appeal the decision in their judicial review, but for us, the campaign moves out of the courtroom – at least for now – and continues in the local and political arenas, and on to the consultation.

We are extremely grateful to the thousands of people who have allowed us to bring this challenge. Thank you again from the bottom of our hearts for all your encouragement and financial support. We do not believe that this has been wasted, and we hope you agree. We deeply regret the judgement and we imagine you will share our disappointment. But we hope its effect will be to strengthen resolve to hold the government to account during the consultation, and raise public awareness of the issues at stake if contracts for billions of pounds of public money lasting ten or more years are awarded to new bodies not established by statute, which could be partly or wholly private companies, and which could outsource all their services if they wished.

Colin Hutchinson, Allyson Pollock, Sue Richards, Graham Winyard

Open letter to Jeremy Hunt on the 69th anniversary of the NHS

This first appeared on the Huffington Post 05 July 2017

Dear Mr Hunt

The 69th anniversary today of the National Health Service is a timely but sad occasion on which to draw your attention to the end of the service in England as we have known it, a service for which you have been responsible for over the last five years – the 29th minister since 1948.

All 28 of your predecessors had a legal duty to provide key health services. The Health and Social Care Act 2012 abolished that duty, and has since given free rein to the external market, building on the internal market introduced in 1990, its development through what are now semi-private NHS Foundation Trusts and the scale-up of the Private Finance Initiative under the Blair government. The dismantling and fragmenting effects of the Act are now being felt in your so-called ‘Sustainability and Transformation Plans’, reported to require £22-26 billion cuts from health and social care costs in five years. These are proceeding in tandem with local government devolution deals made, according to the New Economics Foundation, “between elites behind closed doors, with minimal, and posthoc public participation“, at the same time as the local government finance system is being radically and regressively re-designed, which will increase inequalities.

You are ideologically committed to the market, and the enormous waste of money, lack of strategic planning, and exploitation of staff which implementing it involves may be difficult for you to accept. But you have a moral and political obligation to do so.

We know that the market costs more, as a result of unnecessary services, excessive administrative costs, fraud, denial of care, profits, and other problems – about 30% of health spending in the US in 2009. We know that the £8.7 billion you state was spent on private sector providers of secondary care in 2015/16 – an increase to 7.7% of total NHS expenditure – is a gross under-estimate of how much public NHS money goes to private companies, as it excludes primary care and community and mental health care, contracts between trusts and such companies, management consultants, and legal fees and private finance payments. We know that competing for contracts takes clinical staff away from providing treatment. We know that NHS problems will be further exacerbated by the planned return to PFI (codenamed Project Phoenix) coupled with the Naylor Report on the disposal and further sell of NHS land and buildings.

We know that the market results in dominant providers competing for patients and engaging in risk selection, while fragmenting services.

Cross-party support for lifting the public sector pay cap is welcome but it will not address the inefficiencies of the market or the lack of funding, nor will it help the many staff transferred out of the NHS under commercial contracts to the for-profit sector. Wages and terms and conditions of these staff are not routinely collected.

The 2012 Act marked the end of universality. Under your regressive plans to carve out and shift more health service functions to cash-strapped local authorities as part of the move to STPs, devolution, and so-called ‘integration’, the only recourse under current policy will be to cut and close NHS services, reduce entitlements, privatise care, and allow charging and sale of private health insurance – which is what the private sector is lobbying for.
Scotland and Wales, also underfunded by the Treasury, have abolished the internal market by removing the disruptive elements and made prescriptions free. Scotland has also made personal care free at point of delivery, allowing for integration of health and social care.

We call on you on to face up to the reality of the NHS in England that you have deliberately underfunded and prepared for cuts, closure and privatisation, and to support the NHS Reinstatement Bill.

Yours sincerely

Allyson Pollock and Peter Roderick
Co-authors of the NHS (Reinstatement) Bill

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.