Andrew Neil reminded us this morning on ‘The Sunday Politics’ that there are currently around 4 million individuals who don’t have access to the internet. Prof Michael Porter, chair of strategy at the Harvard Business School, has for a long time reminded us that sectors which have competitive advantage are not necessarily those which are cutting-edge technologically, but his colleague Prof Clay Christensen, chair of innovation at the same institution, has been seminal in introducing the concept of ‘disruptive innovation’. An introduction to this area is here. The central theory of Christensen’s work is the dichotomy of sustaining and disruptive innovation. A sustaining innovation hardly results in the downfall of established companies because it improves the performance of existing products along the dimensions that mainstream customers value. Disruptive innovation, on the other hand, will often have characteristics that traditional customer segments may not want, at least initially. Such innovations will appear as cheaper, simpler and even with inferior quality if compared to existing products, but some marginal or new segment will value it. Continue reading Integrated care – there’s an app for that! A hypothetical case study.→
As a result of the Health and Social Care Act, the number of private healthcare providers have been allowed to increase under the figleaf of a well reputed brand, the NHS, but now allowing maximisation of shareholder dividend for private companies. The failure in regulation of the energy utilities should be a cautionary tale regarding how the new NHS is to be regulated, especially since the rule book for the NHS, Monitor, is heavily based on the rulebook for the utilities. The dogma that competition drives quality, promoted by Julian LeGrand and others, has been totally toxic in a coherent debate, and demonstrates a fundamental lack of an understanding of how health professionals in the NHS actually function. People in the NHS are very willing to work with each other, making referrals for the general benefit of the holistic care of the patient, without having to worry about personalised budgets or financial conflicts of interest. It is disgraceful that healthcare thinktanks have been allowed to peddle a language of competition, without giving due credit to the language of collaboration, which is at the heart of much contemporary management, including notably innovation. Continue reading An ethos of collaboration is essential for the NHS to succeed→
He is also engaged directly in clinical work and holds a regular clinic at University College Hospital mainly with referrals from medical and surgical colleagues in the hospital and also from primary care.He is the Principal Investigator on the Whole Systems Demonstrator Project funded by the Department of Health to evaluate the role of assistive technologies in health and social care. The studies in this programme constitute the largest randomized controlled trials on the role and impact of telehealth and telecare devices. The whole system demonstrator project is a comprehensive evaluation of these devices to inform policy. In addition his group is conducting research on the role of them portable devices in diabetes and web-based applications to improve the management of chronic conditions.
The biography of Prof Ham appears here:
Chris Ham took up his post as Chief Executive of The King’s Fund in April 2010.
He has been Professor of Health Policy and Management at the University of Birmingham, England since 1992. From 2000 to 2004 he was seconded to the Department of Health, where he was Director of the Strategy Unit, working with ministers on NHS reform. Chris is the author of 20 books and numerous articles about health policy and management. Chris was awarded an honorary doctorate by the University of Kent in 2012.
Chris has advised the WHO and the World Bank and has served as a consultant to governments in a number of countries. He is an honorary fellow of the Royal College of Physicians of London and of the Royal College of General Practitioners, an honorary professor at the London School of Hygiene and Tropical Medicine, a companion of the Institute of Healthcare Management, and a visiting professor at the University of Surrey.
Chris was a governor and then a non-executive director of the Heart of England NHS Foundation Trust between 2007 and 2010. He has also served as a governor of the Canadian Health Services Research Foundation and the Health Foundation.
In 2004 he was awarded a CBE for his services to the National Health Service.
Professor Chris Ham
Rather than privatisation being the main challenge, Ham believes that inertia is the main challenge. Ham and colleagues will be producing constructive comments on how change can happen on scale and at pace. The King’s Fund is ‘the middle ground’ between theory and practice, but in an applied practical capacity. ‘This interest gets me out of bed in the morning, to improve health and healthcare’.
There are four burning platforms, not an inappropriate metaphor for health and social care.
A burning platform
The first burning platform is money. There are important differences in the four country, with no growth. Given the state of the economy, it could be a decade for austerity for public services including the NHS. We’ve had seven years of ‘feast’, perhaps followed by seven years of ‘famine’. After eighteen months, the situation is reasonably good. The pay freeze has helped to maintain a surplus. At a local level, there are growing financial pressures. An increasing number of organisations find themselves in deficit, struggling. The number of organisations struggle will increase.
After 18 months, it will be a test to ensure standards of patient care are maintained. John Appleby published a report on ‘Improving NHS productivity: more with the same not more of the same’. Prof David Nicholson has sought £20 bn “efficiency savings”. Everybody has to play a part in ‘Nicholson Challenge’, and this can be approached through an inverted triangle. Key decisions are made in the clinical microsystems, e.g. GPs, nurses, AHPs; prescribing, referrals, length of stay of patients, etc. It is the sum of these clinical decisions that will account for £10 bn of how the health budget is spent. Every clinical team has to eliminate waste, freeing up money for investment.
GPs were asked about the best ways of introducing efficiency savings. There is a lot of apparent agreement between GPs and hospital doctors; better coordination of care, and increased collaboration, between GPs and other services. At the time they were working on ‘Clinical and service integration: the route to improved outcomes” by Natasha Curry and Chris Ham. Getting clinical teams collaborating, and getting care for elderly people more joined-up. The means-to-the-end is better value for the resources being committed, and this paper aims to provide the evidence base from various research studies and countries, to demonstrate evidence and experience towards greater integration. The evidence is seen as ‘good enough’ to justify greater integration.
The second burning platform: the Health and Social Care Act 2012.
What does this mean?
Massive organisational change
Loss of experienced managers
Increased complexity
A focus on structures and not services
The simplified streamline map of the Department of Health (April 2013)
What does this mean?
Thatcher, Blair and Milburn started on this journey. Next chapter is the extension of choice and competition, with a bigger role for GP-led commissioning through 212 Clinical Commission Groups in England. There will be a new NHS Commissioning Board will have a major influence and its role viz a viz CCGs will be criticial. Provider reform/failure is well underway. Several healthcare providers are in financial difficulties. In South London Trust, a trust is bankrupt, and has been subject to administration. Peterborough Foundation NHS Trust has been in financial difficulty. The public will be worried about whether the hospital, GP, community nurse, are still there, and therefore whether failure is small but increasing.
The key document from the King’s Fund and the Institute of Government is Nick Timmins, “Never again?”. Timmins had unprecedented access to people involved in the genesis of the Act, a ‘who done it’ of health policy. A new team is appointed at the beginning of September. This does not signal a major change in the direction of reform. More emphasis will be placed on presentation and communication of the government’s plans. The big political challenges are about service reconfigurations, especially in hospitals.
The third burning platform is the Francis Report. There will be a delay. It will be produced very early in January 2013, bringing quality back onto the agenda. Supervisory bodies, and the role of CQCs and Monitors, in Mid Staffs NHS Foundation Trust will be scrutinised, considering systematic failures. This report will add ‘fuel to the fire’.
The government has put into place a mechanism for safeguarding quality in the NHS (National Quality Board 2010).
The NHS – the way Andrew Lansley would like you to see it
There are three lines of defence. The first line of defence should be the front line teams delivering care. The second line should be organisational leadership at the board level; are they talking about finance, or taking patient safety and quality-of-care seriously? The third line should be regulators and others. Organisational leadership and culture at all levels and staff engagement are critical. A focus on regulation could be erroneous, Ham believes. CQC must bear its share of responsibility, under David Bearn. You have to be realistic about what a regulator can do, and what a regulator cannot do. The experience and credibility of people who go on visits will have to be scrutinised. This will project on the King’s Fund RADAR early in the new year.
The fourth burning platform is the most important, and critically important. It is about future of services, coming from real and welcome improvements in the NHS. We have moved from very long waiting times in the NHS. NHS performance has improved greatly. Despite this, the model for health and care delivery is outmoded. We are really feeling the effects of overinvesting in hospitals and care homes, but tolerated average improvements in general practice, but been slow in technology and innovation uptake. There is a fundamental clinical, compelling, case as to how these services are provided in future.
As many as 1,500 children a year might not die if the UK performed as well as Sweden, in relation to illnesses that rely on first-cass care, such as asthma and pneumonia.
There is excess mortality in hospitals at weekends (Dr Foster Intelligence, 2011), and in London alone there would be a minimum of 500 fewer deaths a year, if the weekend mortality rate were the same as the weekday rate.
More than half of 100 acute hospitals inspected by Care Quality Commission in 2011 were non-compliant with standards of dignity and nutrition for older people, or were found to be cause of concern (Care Quality Commission, 2011).
We have a lot of work to do: the report published by the King’s Fund is “Transforming the delivery of health and social care: the case for fundamrntal change”. It is interesting to compare the data to international data, in the form of ‘Commonwealth Fund International Ranking’. Netherland ranked first, and the UK came 2nd. Ten years ago, the rankings would be near the bottom. Long, healthy, productive lives comes 6th out of 7th (Nolte and McKee, 2011), and patient-centred care we come out bottom.
A possible future model of care might therefore have:
Enhancing the role of patients and users in the care team (chronic diseases, long term conditions, expert patient programme)
Changing professional routes
Rethinking the location of care (too much reliance on nursing homes and care homes, too much focus on acute trusts)
Using new information and communication technologies
Harnessing the potential of new medical technologies (?better use of smartphones)
Making intelligent use of data and information
The report deliberately does not spell out details.
“Fixing the broken system” would therefore consist of:
Fundamental and rapid changes is needed
More consistent standards of primary care
Primary care working at scale through networks
Integrated out of hospital care working 24/7
Acute hospitals working in collaboration and with reduced role over time.
The home as the hub of care with range of supported housing options (older people would prefer to be in the own homes, and telecare might be more important in future).
Shutting a third of hospitals would improve quality of care and should be part of changes to the NHS that would let patients see their GP or have surgery at the weekend, a leading doctor has claimed. A dramatic centralisation of services would benefit patients by putting larger numbers of doctors in fewer places, with the inconvenience for the sick and their loved ones of having to travel further outweighed by better treatment, according to Professor Tim Evans of the Royal College of Physicians (RCP).
This is of course much of what the King’s Fund has been said before. But there has only been limited progress in effecting change this time round at scale and at pace. The issues are urgent.
Tackling the challenge of inertia
Potential strategies might include:
Opening up the market to new providers, with new and better business models. Competition should be a tactic not a strategy.
Existing providers to support staff to innovate. A lot of change should not come from outside, but from within.
Decommissioning outmoded models of care
Recognising the key role of clinical and managerial leaders, taking on politicians and vested interests.
Risk taking needs support from politicians. We will not make progress unless there is a degree of innovation.
Andy Burnham has vowed to reverse the “rapid” privatisation of NHS hospitals in England if Labour wins power. In particular, Mr Burnham said he feared the new freedom for hospitals to earn 49% of their income from private work would “damage the character and culture” of the NHS and take it closer to an American model.
The issue of fragmentation of the NHS is a genuine problem in the NHS, as enacted this year. This is manifest in a number of different guises, such as lack of clarity as to which private entity owns what for local services, the abolition of statutory bodies involved in healthcare (such as the National Patient Safety Agency and the Health Protection Agency), and the phenomenon of “postcode lottery” in healthcare provision.
Andy Burnham clearly wishes “Labour values” of collaboration and solidarity to be pervasive in an equitable National Health Service, rather than competition, where there are winners and losers. This is particularly interesting from a business management sense, as it has long been a source of academic interest in innovation management how the “innovators’ dilemma” is solved in the private sector. This is the practical business question posed by Prof Clay Christensen, professorial fellow in innovation at Harvard, as to how it is possible, that, amongst private entities in the market place, business entities can secure competitive advantage, while working together sharing knowledge in seamless collaboration.
It seems pretty likely that, even if Labour win the 2015 general election and the Health and Social Act (2012) is repealed, commissioning will exist in some form, with Labour taking forward ‘best practice’ from the experiences of clinical commissioning groups (CCGs). There is no inkling that, whilst certain structures are in the process of being abolished for some time (such as the PCTs and SHAs), the CCGS and NHS Foundation Trusts will follow suit. Indeed, Professor Brian Edwards, special adviser to the Institute of Healthcare Managers, said he was “appalled and frustrated” at news the Francis Report would not be published until January 2013, and called it “a cruel blow” to the families of victims. This report discusses the failings at hospitals in Mid Staffordshire between 2005 and 2009, and is anticipated to be invaluable in developing further NHS foundation trusts.
Integration in person-centred care has always been a hallmark of excellent medical care, and Burnham keens to bring this out as a dominant theme in components of his new Health Bill in 2015 or 2016 if elected. When patients present to their G.P., they simply do not present as isolated medical diagnoses. For example, if an elderly patient, who may incidentally have a probable diagnosis of dementia, falls, a GP would be concerned with the patient is at risk of a fracture due to underlying osteoporosis, has poor eyesight due to a cataract for example, or leads a life in a cluttered home environment due to lack of social care. There are a plethora of problems which are likely to cause an individual to come into contact with the NHS, and the integration of health and social care is indeed entirely in keeping with Nye Bevan’s original aspiration for the NHS. The ideal would be of course to have an integrated health and social care service, but much time (and money) has been lost by the Coalition kicking the Dilnot review ‘into the long grass’ when we were already supposedly meant to be looking for greater efficiencies through the Nicholson Challenge.
Moves are clearly afoot as to who is providing the services, with various morphologies in terminology (for example “NHS preferred provider”, “any willing provider”, or “any qualified provider”). Closer to home for the current delegates in Manchester, patients will be taken to hospital by a bus company after the North West Ambulance Service (NWAS) failed to win a contract. It will not affect 999 emergency call-outs. Arriva, which run bus services throughout Greater Manchester, will replace NWAS which currently runs the service but was outbid by Arriva after the the service was put out to tender.
“Andy Burnham has outlined a vision for the future of health and social care which accentuates the differences between the Labour Party and the government on the NHS. He is right to stress the need for fundamental change in health and social care services. Our own work has made the case for radical changes to ensure the NHS is fit to meet the challenges of the future as the population ages and health needs change.
This includes moving care closer to people’s homes and re-thinking the role of hospitals which must change to improve the quality of specialist services and better meet the needs of older patients. We also welcome his emphasis on delivering integrated care – the challenge now is to move integrated care from the policy arena and make it happen across the country at scale and pace.
However, while the long term vision is ambitious, the details of Labour’s plans are sketchy. A number of questions will need to be answered in the policy review announced today. For example, it is not clear how local authorities could take on the role of commissioning health care without further structural upheaval. And despite the Shadow Chancellor’s pledge earlier in the week, it is not clear how Labour would ensure adequate funding for social care.”
Text of speech given this morning in Manchester.
Conference, my thanks to everyone who has spoken so passionately today and I take note of the composite.
A year ago, I asked for your help.
To join the fight to defend the NHS – the ultimate symbol of Ed’s One Nation Britain.
You couldn’t have done more.
You helped me mount a Drop the Bill campaign that shook this Coalition to its core.
Dave’s NHS Break-Up Bill was dead in the water until Nick gave it the kiss of life.
NHS privatisation – courtesy of the Lib Dems. Don’t ever let them forget that.
We didn’t win, but all was not lost.
We reminded people of the strength there still is in this Labour movement of ours when we fight as one, unions and Party together, for the things we hold in common.
We stood up for thousands of NHS staff like those with us today who saw Labour defending the values to which they have devoted their working lives.
And we spoke for the country – for patients and people everywhere who truly value the health service Labour created and don’t want to see it broken down.
Conference, our job now is to give them hope.
To put Labour at the heart of a new coalition for the NHS.
To set out a Labour alternative to Cameron’s market.
To make the next election a choice between two futures for our NHS.
They inherited from us a self-confident and successful NHS.
In just two years, they have reduced it to a service demoralised, destabilised, fearful of the future.
The N in NHS under sustained attack.
A postcode lottery running riot – older people denied cataract and hip operations.
NHS privatisation at a pace and scale never seen before.
Be warned – Cameron’s Great NHS Carve-Up is coming to your community.
As we speak, contracts are being signed in the single biggest act of privatisation the NHS has ever seen.
398 NHS community services all over England – worth over a quarter of a billion pounds – out to open tender.
At least 37 private bidders – and yes, friends of Dave amongst the winners.
Not the choice of GPs, who we were told would be in control.
But a forced privatisation ordered from the top.
And a secret privatisation – details hidden under “commercial confidentiality” – but exposed today in Labour’s NHS Check.
Our country’s most-valued institution broken up, sold off, sold out – all under a news black-out.
It’s not just community services.
From this week, hospitals can earn up to half their income from treating private patients. Already, plans emerging for a massive expansion in private work, meaning longer waits for NHS patients.
And here in Greater Manchester – Arriva, a private bus company, now in charge of your ambulances.
When you said three letters would be your priority, Mr Cameron, people didn’t realise you meant a business priority for your friends.
Conference, I now have a huge responsibility to you all to challenge it.
Every single month until the Election, Jamie Reed will use NHS Check to expose the reality.
I know you want us to hit them even harder – and we will.
But, Conference, I have to tell you this: it’s hard to be a Shadow when you’re up against the Invisible Man.
Hunt Jeremy – the search is on for the missing Health Secretary.
A month in the job but not a word about thousands of nursing jobs lost.
Not one word about crude rationing, older people left without essential treatment.
Not a word about moves in the South West to break national pay.
Jeremy Hunt might be happy hiding behind trees while the front-line of the NHS takes a battering.
But, Conference, for as long as I do this job, I will support front-line staff and defend national pay in the NHS to the hilt.
Lightweight Jeremy might look harmless. But don’t be conned.
This is the man who said the NHS should be replaced with an insurance system.
The man who loves the NHS so much he tried to remove the tribute to it from the Opening Ceremony of the Olympic Games.
Can you imagine the conversation with Danny Boyle?
“Danny, if you really must spell NHS with the beds, at least can we have a Virgin Health logo on the uniforms?”
Never before has the NHS been lumbered with a Secretary of State with so little belief in it.
It’s almost enough to say “come back Lansley.”
But no. He’s guilty too.
Lansley smashed it up for Hunt to sell it off with a smile.
But let me say this to you, Mr Hunt. If you promise to stop privatising the NHS, I promise never to mispronounce your name.
So, Conference, we’re the NHS’s best hope. Its only hope.
It’s counting on us.
We can’t let it down.
So let’s defend it on the ground in every community in England.
Andrew Gwynne is building an NHS Pledge with our councillors so, come May, our message will be: Labour councils, last line of defence for your NHS.
But we need to do more.
People across the political spectrum oppose NHS privatisation.
We need to reach out to them, build a new coalition for the NHS.
I want Labour at its heart, but that means saying more about what we would do.
We know working in the NHS is hard right now, when everything you care about is being pulled down around you.
I want all the staff to know you have the thanks of this Conference for what you do.
But thanks are not enough. You need hope.
To all patients and staff worried about the future, hear me today: the next Labour Government will repeal Cameron’s Act.
We will stop the sell-off, put patients before profits, restore the N in NHS.
Conference, put it on every leaflet you write. Mention it on every doorstep.
Make the next election a referendum on Cameron’s NHS betrayal.
On the man who cynically posed as a friend of the NHS to rebrand the Tories but who has sold it down the river.
In 2015, a vote for Labour will be a vote for the NHS.
Labour – the best hope of the NHS. Its only hope.
And we can save it without another structural re-organisation.
I’ve never had any objection to involving doctors in commissioning. It’s the creation of a full-blown market I can’t accept.
So I don’t need new organisations. I will simply ask those I inherit to work differently.
Not hospital against hospital or doctor against doctor.
But working together, putting patients before profits.
For that to happen, I must repeal Cameron’s market and restore the legal basis of a national, democratically-accountable, collaborative health service.
But that’s just the start.
Now I need your help to build a Labour vision for 21st century health and care, reflecting on our time in Government.
We left an NHS with the lowest-ever waiting lists, highest-ever patient satisfaction.
Conference, always take pride in that.
But where we got it wrong, let’s say so.
So while we rebuilt the crumbling, damp hospitals we inherited, providing world-class facilities for patients and staff, some PFI deals were poor value for money.
At times, care of older people simply wasn’t good enough. So we owe it to the people of Stafford to reflect carefully on the Francis report into the failure at Mid-Staffordshire Foundation NHS Trust.
And while we brought waiting lists down to record lows, with the help of the private sector, at times we let the market in too far.
Some tell me markets are the only way forward.
My answer is simple: markets deliver fragmentation; the future demands integration.
As we get older, our needs become a mix of the social, mental and physical.
But, today, we meet them through three separate, fragmented systems.
In this century of the ageing society, that won’t do.
Older people failed, struggling at home, falling between the gaps.
Families never getting the peace of mind they are looking for, being passed from pillar to post, facing an ever-increasing number of providers.
Too many older people suffering in hospital, disorientated and dehydrated.
When I shadowed a nurse at the Royal Derby, I asked her why this happens.
Her answer made an impression.
It’s not that modern nurses are callous, she said. Far from it. It’s simply that frail people in their 80s and 90s are in hospitals in ever greater numbers and the NHS front-line, designed for a different age, is in danger of being overwhelmed.
Our hospitals are simply not geared to meet people’s social or mental care needs.
They can take too much of a production-line approach, seeing the isolated problem – the stroke, the broken hip – but not the whole person behind it.
And the sadness is they are paid by how many older people they admit, not by how many they keep out.
If we don’t change that, we won’t deliver the care people need in an era when there’s less money around.
It’s not about new money.
We can get better results for people if we think of one budget, one system caring for the whole person – with councils and the NHS working closely together.
All options must be considered – including full integration of health and social care.
We don’t have all the answers. But we have the ambition. So help us build that alternative as Liz Kendall leads our health service policy review.
It means ending the care lottery and setting a clear a national entitlement to what physical, mental and social care we can afford – so people can see what’s free and what must be paid for.
It means councils developing a more ambitious vision for local people’s health: matching housing with health and care need; getting people active, less dependent on care services, by linking health with leisure and libraries; prioritising cycling and walking.
A 21st century public health policy that Diane Abbott will lead.
If we are prepared to accept changes to our hospitals, more care could be provided in the home for free for those with the greatest needs and for those reaching the end of their lives.
To the district general hospitals that are struggling, I don’t say close or privatise.
I say let’s help you develop into different organisations – moving into the community and the home meeting physical, social and mental needs.
Whole-person care – the best route to an NHS with mental health at its heart, not relegated to the fringes, but ready to help people deal with the pressure of modern living.
Imagine what a step forward this could be.
Carers today at their wits end with worry, battling the system, in future able to rely on one point of contact to look after all of their loved-one’s needs.
The older person with advanced dementia supported by one team at home, not lost on a hospital ward.
The devoted people who look after our grans and grand-dads, mums and dads, brothers and sisters – today exploited in a cut-price, minimum wage business – held in the same regard as NHS staff.
And, if we can find a better solution to paying for care, one day we might be able to replace the cruel ‘dementia taxes’ we have at the moment and build a system meeting all of a person’s needs – mental, physical, social – rooted in NHS values.
In the century of the ageing society, just imagine what a step forward that could be.
Families with peace of mind, able to work and balance the pressures of caring – the best way to help people work longer and support a productive economy in the 21st century.
True human progress of the kind only this Party can deliver.
So, in this century, let’s be as bold as Bevan was in the last.
Conference, the NHS is at a fork in the road.
Two directions: integration or fragmentation.
We have chosen our path.
Not Cameron’s fast-track to fragmentation.
But whole-person care.
A One Nation system built on NHS values, putting people before profits.
A Labour vision to give people the hope they need, to unite a new coalition for the NHS.
The NHS desperately needs a Labour win in 2015.
You, me, we are its best hope. It’s only real hope.
It won’t last another term of Cameron.
NHS.
Three letters. Not Here Soon.
The man who promised to protect it is privatising it.
The man who cut the NHS not the deficit.
Cameron. NHS Conman.
Now more than ever, it needs folk with the faith to fight for it.
Andy Burnham will repeal the Act, but is due to establish Labour’s official position at Conference later this week.
He answered my straightforward question about the Health and Social Care Act (2012) with a simple answer, at the Fabian Society Question Time this evening, hosted by Alison McGovern MP, and a panel also including Owen Jones, Dan Hodges, and Polly Toynbee. I had a very nice chat with Andy at the end, and Andy seemed to be quite impressed that I had read the entire Act carefully ‘from cover to cover’.
Andy reinforced his belief that the Act would be repealed, but he wanted the NHS to further a spirit of collaboration. There’s been a question about, even if the Act is repealed, there are genuine questions about which policy planks might go into reverse. I feel it is unlikely that NHS Foundation Trusts will be revised, and I don’t think commissioning will be done away with, though I am uncertain about the future of ‘clinical commissioning groups’ (“CCGs”). Andy’s indication that existing structures might be asked to do different things gives Andy a bit of lee-way as to the working relationship between NHS Foundation Trusts, or CCGs (or whatever they turn out to be).
Part 3 will be first in the firing line, the Act will be repealed, and the NHS will go back to a system based on collaboration consistent with its founding principles. Critically, this Part of the Act establishes the legislative framework for the sector-regulatory body and its functions, “Monitor”, competition and licensing. My guess is that Andy Burnham MP will find a way for the NHS not to be a free-for-all in an unfettered market. My impression is a lot depends on escaping the EU definition of “undertaking” in EU competition law.
The NHS prior to this Act had been immune from a discussion of competition in that the NHS had from this previously is that a regulatory authority for competition, the Office for Fair Trading (“OFT”) did not consider that any public bodies involved in the purchasing or supply of goods or services within the NHS were “undertakings”, and therefore were not subject to action under the Competition Act. In other words, any involvement of these bodies was for “non-economic purposes”. This was reinforced by the EU in relation to a Spanish healthcare case FENIN v Commission in 2006, on the basis that the system concerned operated on the principle of ‘solidarity’. They have therefore exposed some services (which previously would have been provided in-house) to a scenario where they will be considered for competitive tendering. The extension of Any Qualified Provider (albeit with a more limited, phased implementation from 2012) to a wider range of services, and the distancing of the state from acute sector provision in the form of foundation trusts could conceivably weaken the argument against healthcare provision being for “non-economic purposes”, particularly when individual service lines are considered.
This is highly significant, I feel, that Andy Burnham could be steering the NHS away from being run for ‘economic purposes’, and this could be the passport for Andy for not becoming enmeshed in lots of complicated domestic and EU law. As it happens, I have a real feeling that European lawyers would prefer not to enmeshed in a complicated discussion about private provision in healthcare, as they feel that competition law is best applied to pure private or commercial entities not involved in social/healthcare policy.
As it stands, the Health and Social Care Act (2012) is a complex interplay of domestic and EU law in the disciplines of company law (including mergers, financial assistance), commercial law, procurement law (including public contracts), regulatory law, insolvency law (particularly administration). However, the law, albeit at nearly 500 pages, does have some notable omissions, such as what happens if a CCG ‘trades’ while going insolvent. Law would have to clarify consider, in its capacity as a ‘body corporate’, whether the CCG were still capable of wrongful or even fraudulent trading.
The SHWS 