When the Health and Care Bill was presented, we launched a petition asking for its worst features to be amended so that it could not be used to facilitate a move towards a US-style healthcare system in the UK.  The reasons for our concern and the amendments we felt were the minimum necessary to make the Bill safe are set out here. In brief, our concern is that healthcare is such a huge profit opportunity that the interests of UK citizens will take second place to those of shareholders in healthcare companies. We estimate that healthcare companies are eyeing a $28 billion profit opportunity.

When our petition passed the 10,000 mark, the government was obliged to respond. And they did so with a set of answers which implied, “there is nothing to worry about in the Bill; the NHS is perfectly safe now and forever, so we do not intend to amend the Bill.”

Unfortunately, a careful reading of the response suggests that it offers no credible reassurance. The Bill remains extremely dangerous to the UK healthcare system. Please do sign the petition if you have not already done so, and get your friends to sign it, if you have.

 

Government Response Assessment
Protecting the NHS is of the utmost importance to the Government. We are committed to ensuring the NHS continues to provide excellent care that is free at the point of need for generations to come. It is not credible that “Protecting the NHS is of the utmost importance to the Government” given the statements by its own members including Sajid Javid who has overall responsibility and is the sponsor of the Bill.

As John Major said: “The concept that [they] would care for the National Health Service is a rather odd one: Michael Gove wanted to privatise it; Boris wanted to charge people for using it; and Iain Duncan Smith wanted a social insurance system. The NHS is about as safe with them as a pet hamster would be with a hungry python.”

“Providing excellent care, free at the point of use” to be meaningful, must include:

1) no charges for drugs or treatments;

2) no rationing of treatment by capacity (funding shortfall) or closure of facilities;

3) no whittling-down of coverage.

As a single example of rationing by capacity, because NHS capacity is over-stretched, more hip replacements are now carried out privately than in the NHS – in practice, hip replacements are no longer free at the point of use.

 Verdict: Already this is not true.
The Health and Care Bill delivers on the NHS’s own proposals for reform in its 2019 Long Term Plan, and makes permanent some of the innovations we have seen in the system as a result of Covid.

It captures learning from the response to the pandemic and the vaccine rollout. And it goes even further, with a range of measures to level-up health outcomes across the country, enabling people to live longer and healthier lives.

 The government appointed senior members of US healthcare corporations into key governance roles and asked them to draw up proposals – e.g. Sir Simon Stevens, CEO of NHS England was previously President of the Global Health Division of UnitedHealth Group, a giant US private healthcare company. That the resulting proposals favour US models is neither surprising nor evidence that the NHS as a whole supports them.

The learnings from the pandemic are that ministers should have a reduced role in procurement – to avoid a repetition of the PPE scandal in which over £1 billion of our money was misspent and the Test & Trace debacle in which up to £37 billion of our money was directed largely into favoured private hands instead of to existing Public Health departments in Local Authorities with proven experience in tracking and tracing.

As drafted, this Bill would give ministers even greater scope to do the same again, at the expense of patients and taxpayers, but to the enormous benefit of their donors.

Verdict: No case for the proposed changes
The NHS has told us that the current competition and procurement rules are not well suited to the way healthcare is arranged. We are therefore changing the way the NHS arranges services in a way that provides more flexibility, reduces bureaucracy for both commissioners and providers and reduces the need for competitive tendering where it adds limited or no value. As mentioned above, it is not realistic to describe what carefully placed senior NHS managers say as the voice of the NHS. The proposed ‘reduction in bureaucracy’ in reality opens the door to industrial-scale corruption.

The Test and Trace procurement neatly sidestepped ‘bureaucracy’ to hand tens of £ billions of tax-payers’ money to private sector interests who then failed to meet many of their objectives, according to the National Audit Office reports.

Open and competitive tendering would at least have made this kind of scandal more difficult to engineer. With the proposed changes in the Bill, it will not even be illegal to do so again.

Verdict: No case for the proposed changes
The proposed new regime is being designed to allow transparency, scrutiny and due-diligence in decision-making, but without the barriers and limitations associated with running tender exercises. See above. The Bill demonstrates no new mechanisms for transparency, scrutiny and due-diligence, but does remove the barriers and limitations associated with running tender exercises which might prevent ministers from awarding contracts to their favoured recipients via VIP lanes, etc, as happened in the PPE and Test & Trace procurements.

Verdict: No evidence of the new regime being designed to allow transparency, scrutiny and due-diligence
The vast majority of NHS care has and will continue to be provided by public sector organisations. However, successive Governments of all political affiliations have allowed the NHS to commission services from the private and voluntary sector. Whether that is to improve accessibility and experience for patients, to increase capacity quickly, or to introduce innovation, NHS commissioners may commission services to meet the needs of their local area from any CQC-registered provider, regardless of their corporate status, provided they follow procurement rules and regulations. It is true that private provision can sometimes be the best solution, but as the two egregious cases above demonstrate, it can also be far more expensive and far less effective.

The risk in this Bill is that it will enable ICBs to commission services from the private sector in the name of “accessibility and experience for patients, increasing capacity quickly, or introducing innovation” – indeed these were precisely the arguments used in both the PPE and Test & Trace procurements – but in reality delivering less than zero benefits at high and rising cost.

The comment “provided they follow procurement rules and regulations” is only meaningful while the rules and regulations themselves remain fit for purpose. With the Bill as drafted, that will not be the case.

Verdict: No case for the proposed changes
We want to ensure that care is delivered in the best interest of patients, and it is the view not just of this Government but of the NHS that local commissioners are the best people to determine what services a local population needs. The main issue of concern is not that the commissioners will be local, but that unless the law is tightened, some of them will have a fiduciary duty to their shareholders – see the example of the ICS covering Bath and North East Somerset, Swindon and Wiltshire described below.

Verdict: The law needs tightening and enforcing, not loosening
Commissioners will continue to be responsible for managing contracts to ensure services are arranged with all providers, including those with the independent sector, to provide high quality of care at efficient prices. As stated above, with ICB membership as it stands, some of the members of the commissioning body will have a fiduciary duty to their shareholders which will bind them to act in ways which are not in the best interests of patients or taxpayers. In particular, where they can raise prices without reducing demand, they have a fiduciary duty to their shareholders to do so.

Verdict: The law needs tightening and enforcing, not loosening
The Bill establishes Integrated Care Boards (ICBs) to take on the commissioning functions of existing CCGs and some of NHS England’s commissioning functions. They will be directly accountable for NHS spend and performance, and will be NHS bodies. They will bring in representatives from a range of other NHS bodies including NHS commissioners and NHS providers. Local areas may choose to involve a range of providers, including the voluntary and independent sector, in their Integrated Care Partnerships. However, the work of ICBs will be driven by health outcomes, not profit. This comment does not even reflect today’s reality.

For example, Virgin Care’s local Managing Director, Julia Clarke, is already a member of the Partnership Board, the unitary Board which currently runs the ICS covering Bath and North East Somerset, Swindon and Wiltshire (BSW).

And the Board Papers for a meeting on May 28 reveal that the Virgin boss is not only occupying a seat, but actively intervening to protect the company’s interests – as her job requires. This is precisely the kind of governance problem the Bill will magnify.

Verdict: The law needs tightening and enforcing, not loosening
It has never been the intention for independent providers, as corporate entities, to sit on Integrated Care Boards, nor for an individual to be appointed there to be a representative of such an interest in any capacity.

The new commissioning bodies being set up are all public bodies and will not, and indeed cannot, be controlled by private providers. The Bill, as drafted, already provides for this.

 Whether or not it has ever been the intention is immaterial. It does happen.

The phrase “will not, and indeed cannot, be controlled by private providers” is misleading: if they have 49% of the seats on an ICB, it could be said that they do not have “control” of that Board – but they would have huge influence and their motivations would not be to promote the interests of patients and taxpayers.

Verdict: The law needs tightening and enforcing, not loosening
The work of Integrated Care Boards is driven by health outcomes, not by profits. There are safeguards in place to ensure that the interests of the public and the NHS are always put first. The ICB chair has the power to veto members of the board if they are unsuitable, and NHS England has the power to issue guidance to ICBs in relation to appointments as part of its general guidance-making power. That sits alongside the robust requirements on ICBs to manage conflicts of interests, and NHSE’s wider duty to issue guidance to ICBs. These so-called safeguards have not prevented corporate members, with a fiduciary duty to their shareholders sitting on ICBs so far – there is no reason to suppose that they will do so in the future.

Verdict: The law needs tightening and enforcing, not loosening
To put this matter beyond doubt, the Government is proposing to bring forward specific rules to protect the independence of ICBs by preventing individuals with significant interests in private healthcare from sitting on them. The government introduced an amendment:

The constitution must prohibit a person from appointing someone as a member (“the candidate”) if they consider that the appointment could reasonably be regarded as undermining the independence of the health service because of the candidate’s involvement with the private healthcare sector or otherwise.

Of course, this does not prevent any appointment: it just means that the person appointing needs to say “I do not consider that the appointment could reasonably be regarded as undermining the independence of the health service …”

Verdict: No evidence yet of adequate safeguards
NHS England will remain accountable to the Secretary of State and Parliament. The Health Secretary has duties, including to the continuous improvement of quality of services, and to the NHS constitution, which as one of its guiding principles has that NHS services are free of charge, except in limited circumstances when sanctioned by Parliament. Access to NHS services is based on clinical need, not an individual’s ability to pay. The Secretary of State does not have a duty to ensure that: the NHS continues to provide excellent care, free at the point of use with:

1) no charges for drugs or treatments;

2) no rationing of treatment by capacity (funding shortfall) or closure of facilities;

3) no whittling-down of coverage.

Without such duties, the NHS can be whittled down to a bare-bones provision for the poorest with the remainder squeezed out into private provision, as has already happened with hip replacements.

 

Verdict: A meaningful duty needs to be imposed on the Secretary of State.
The NHS is and always will be free at the point of use. The government has been steadfast in its commitment to the guiding principles of the NHS which mean the NHS is not and never will be for sale to the private sector.

 

 The point about freedom at the point of use has been dealt with above.

Use of the phrase ‘for sale’ is what conjurors call ‘misdirection’ – it is true that the NHS as an organisation has never been put up for sale in one transaction. But there has been a steady programme of privatisation of provision within the NHS as well as squeezing out of would-be NHS patients into the private sector.

Verdict: The Bill gives ministers powers to reshape the NHS without scrutiny and no duties to constrain them. As drafted, it would allow them to move the UK towards a US-style healthcare system. It is not fit for purpose.