Rainbow coalition warns about section 75 NHS Regulations

The most unlikely “rainbow” Coalition of people has united against backdoor NHS privatisation by the Conservative Party.

On a day when Centrica/British Gas announced record profits, the issue came up again about how the business had made massive profits while putting its prices up, and how there was no real competition in this crowded, fragmented market of few suppliers. Such suppliers constitute an ‘oligopoly’ as the barriers-to-entry to competition are sufficiently high, meaning that the big players in it are able to return massive dividends year-on-year.

Making money out of the NHS the ‘Dragons’ Den’ way will soon be a reality

 

A cursory look at the newspapers or television news might make an alien from outer space think that we are not that interested in the long-term strategy of the NHS. It does not seem to be a burning issue on the doorstep, as perhaps living standards or the bedroom tax might be. Recent times have seen English health policy embracing the “markets” as a way of driving quality and efficiency by health policy experts who refuse to acknowledge that real patients have more than one medical problem simultaneously. The failure of the markets is reflected in the eagerness of the private sector to grab any state funds going at an instant, whether it’s A4e in ‘workfare’ or examples of the ‘mandatory work programme’ which have recently been in the news.

One ‘line of attack’ is: what’s wrong with privatisation anyway? The distinction that ‘private is bad’ and ‘public is good’ can be argued as blurred, particularly in the wake of 400-1200 “avoidable” deaths in Mid Staffs. It is increasingly hard to escape from the conclusion that this pathology was indeed malignant; ‘something had to give’ when NHS trusts were having one Foundation Year doctor covering all the geriatric patients in a busy district general hospital on his or her own every night for a week, with a Registrar to help. Nurses rushed off their feet, in the name of “efficiency”, could deliver a NHS Trust Foundation Trust, and a handsome salary for a Trust CEO, while a frontline nurse was stressed and could not turn to help for fear of failure. But to criticise operational failures in the NHS in the context of policy with Sir David Nicholson and others as senior proponents is not a justification for the introduction of market failure to replace the ideal of a comprehensive NHS.

Years on, and the GMC are still wading through possible failures, though there must have been some if 400-1200 deaths were ‘avoidable’? The excuse that the cultural pathology is so widespread is really an inexcusable one, as it produces an immoral charter for all possible parties to escape blame. People when they’ve had a good experience feel that they must be ‘the lucky ones’, junior doctors and nurses are frightened to speak out about their working conditions for fear of immediate reprisals from future and current employers and/or the regulators, and yet people who have suffered abysmal care do not see a complaint process functioning. England has a statutory complaints system (The Local Authority Social Services and National Health Service Complaints (England) Regulations (2009)), but how many patients, let alone doctors, are aware of its existence? And do the public understand about why some hospitals are literally going “bust”, with the private finance initiative having been introduced by the Conservatives and implemented by Labour?

England is ridden with multiple examples of privatisation failures. British Gas, the UK’s biggest energy supplier, owned by utility giant Centrica, admitted the hefty price rises in 2011 helped its residential arm to an operating profits haul of £345 million in the six months to the end of June 2012. BT is of course highly profitable, but generating much shareholder dividend rather than vastly improved value and quality. This is to be expected in a market with few competitors, where chief protagonists can effectively charge what they want. The recent good news has seen shares in the group up 4.6 percent, topping the FTSE 100 leader board and giving the group a market value of 20.5 billion pounds. Even customers themselves, judging by the opinions section of the “Daily Express”, are fed up.

Talking of private equity profiting out of state services, it is no wonder that the conclusion was quickly arrived at that the NHS is a cash-cow for privatisation. And the next line of attack is that it’s not “privatisation” anyway, it’s “marketisation”. This is, however, Oliver Letwin’s own definition:

“It typically takes one of three forms: contracting out of government, deregulation of activities previously dominated by the public sector, and sales of public assets to existent private sector companies…these are important and powerful tools, each of which is particularly suited to the privatisation of a particular aspect of the public sector: contracting out for public services, deregulation for statutory monopolies, and trade sales for companies in poor financial condition.”

Letwin O. Bringing about the Phenomenon, in Privatising the World: a study of international privatisation in theory and practice. London: Cassell, 1988. p74

The new regulations for commissioning are now making their way through Parliament (if unopposed will be effective from 1 April 2013). Their content makes the content of the CCG Constitution largely irrelevant to the NHS privatisation they are designed to accomplish.

These regulations will force almost all commissioning to be undertaken within competitive markets which were designed by the international commercial sector to improve their access to public funding. The notion of private sector players tapping into public money is of course a very well-known one in business. In an article about Duncan Bannatyne:

“At 29, he and Gail, his first wife and mother of four of his children, moved to her home town of Stockton. He bought an ice-cream van for £450, which then became a fleet and later sold for £25,000. On learning Mrs Thatcher would subsidise care homes to the tune of £260 per patient per week, he built one such home in 1986. It became a business of 36. Thatcherite subsidies also part-financed his nurseries. He loved Mrs Thatcher’s policies. Determined not to retire – “that means giving up,” he says – he thinks Britain today would be wealthier, with more jobs, if more of us set up in business.”

The use of these markets creates rights for private providers which will lead to gradual (over about 4-5 years) privatisation of the NHS.  They will also render renationalisation politically impracticable because of the huge compensation claims it would trigger from private healthcare industry companies, which would have a good case under the competition law which binds such markets.

The regulations are structured around maximisation of patient choice of provider, i.e. bringing as many new providers on to NHS funding as possible.  Clearly this means that some previous recipients of those funds, almost all of whom are public sector-run NHS hospitals and care teams, will get their funding withdrawn, and many will as a result have to shut down. This is akin to evolution, where only “the survival of the fittest” survive – but do the public want a flood of new private providers making profit out of the sick in the general public? Has anyone actually bothered to ask them?

All of this has become possible through the Coalition, with the Liberal Democrats supplying the necessary votes to enshrine this all in law. Come 2015, we do not know the fate of the LibDems, but one thing that is pretty certain is that these contracts will be in place. So the influx of new providers will mainly be from the private sector, and their entry into commissioning markets to compete for funds from the limited NHS budget will have the effect of ejecting many existing public sector providers: every time one wins a contract for a service previously provided by the public sector, that part of our public sector will be lost. So without any declaration that the NHS will be privatised, it will on-the-sly become privatised through the operation of these markets that the regulations are forcing CCGs to use.

The CCGs have been branded “clinical commissioning groups”, but strictly speaking they do not need many functioning clinicians at all, in the way that one person I know yesterday met an ATOS doctor who had never heard of ankylosing spondylitis. Like all good things, the public will probably miss it once its gone in that the number of services ‘free at the point of use’ will be diminished, but it will be up to successive governments to work out how to unravel paying private suppliers inflated prices for services in the NHS which the NHS once used to do. Nobody dares to have that discussion at the moment for obvious reasons.

 

This post would not have been possible without the work of Dr Lucy Reynolds.

 

Reference

http://www.opendemocracy.net/ournhs/nicola-cutcher-lucy-reynolds/nhs-as-we-know-it-needs-prayer

How the National Health Action Party have brought out the worst in Labour supporters for me over Eastleigh

National Health Action Party

As a Labour Party member, I am prone to be tribal without realising it. Whenever Danny Alexander or Simon Hughes blame Labour for the deficit, and blame Labour for all other woes, I tend to switch off, and put it down to LibDem tribalism. But this of course cuts both ways. Some Labour members, apart from those pursuing a ‘progressive left’ with groups such as Compass, for much of this parliament have embraced what can best be described as a ‘hate campaign’ against LibDem members. This is often justified by such individuals because the LibDems have ‘sold out’, voting on key legislation such as the NHS reforms, welfare reforms, legal aid, to name but a few.

We have a broken political system – it is probably likely that voters in Eastleigh will vote for the LibDems first, and the Tories second. This was never a seat which Labour hoped to win. Labour supporters, even in the wake of the Francis Report and the implementation of PFI (originally a John Major policy), have incessantly said ‘they invented the NHS’, despite the fact that a Liberal (William Beveridge) had a lot to do with it. It’s as if they wish to stand on a 1945 slate, not wishing to engage in any teamwork over how best to advance the NHS. It’s the ‘hands off our NHS’ approach which I found initially distasteful.

If Labour had the remotest chance of winning, I would understand. However, it’s the fact that some Labour members tweet and share an article on Labour List called, “The National Health Action Party must be strangled at birth” makes me realise how very unpleasant some people’s political views are (and they are within Labour), but unfortunately which are given a voice on the blogosphere. Advocates of this article establish that the NHA Party pose a threat to Labour, rather than NHA Party pose a threat to the Conservatives or Liberal Democrats, but surely if Labour were that robust about their own policy this would not be an issue?

Whenever I mention that I would rather have a NHA Party MP vote against the Coalition on health than a Tory MP or LibDem MP in a seat ‘safe for’ Tories and Liberal Democrats individually, all I ever get is a ‘non answer’. When the electorate return a Tory MP or LibDem MP, it will indeed be sad that ‘The Only Way is Eastleigh’ show is over, but we’ll have a MP who votes for the Coalition on the NHS. Further to that, the voters in Eastleigh will be none-the-wiser if their NHS services, for example A&E departments, are shut down in the Winchester/Eastleigh region.

Indeed, Labour members are right to praise Jamie Reed, Andrew Gwynne, Diane Abbott and Andy Burnham, but actions for me speak louder than words. Labour failed to stop the enactment of the Health and Social Care Act (2012), enabled by a BBC which refused to discuss it and the votes of Liberal Democrats. But actions are important. It is only a few weeks before the statutory instrument 157 becomes law, thrusting the NHS into the machinery of competition law, even though CCGs do not have the necessary legal expertise or resources. There’s nothing to stop the Labour team stating tomorrow that they oppose this statutory instrument which is the engine behind the outsourcing of the NHS, the precursor to a full-blown privatisation.

Labour, a party which I am actually a member of, has some members which offend me in terms of their political approach. Instead of concentrating on the issues, they wish to ‘strangle at birth’ a party which I agree with actually – on warning over the dangers and fallacy of the markets in our NHS.

Would you recommend this government to your friends and family?

Would you recommend this government to your friends and family?

— legal aware(@legalaware) February 19, 2013

@legalaware Not on your nelly ……

— jane lutkin (@JaneLutkin) February 19, 2013

@legalaware Wouldn’t recommend them 2 my worse enemy. No-one deserves the lies, manipulation and depredations of these self serving monsters

— Marilyn Jenkins (@croescade) February 19, 2013

@legalaware recommend it for what? !!

— Tes Smith (@TTESmith) February 19, 2013

@legalaware simlpe that one no

— rosalinde armiger (@rosalindearmige) February 19, 2013

The legal issues in the statutory instrument (2013, No. 257) on NHS procurement in England

The key document in question is here.

In a nutshell, it has thrust private sector ‘competitive tendering’ in the procurement of NHS services into the limelight.

The legislature, as recommended by the executive, has an obligation to provide law that is clear and predictable, and the judiciary can only rely on the Acts on the statute books and any supporting discussions of what parliament might have intended. It is at the heart of parliamentary sovereignty that parliament can do what it wishes. There is, unfortunately, a large number of issues concerning this statutory instrument 2013 No. 257 concerning procurement in England. These embrace a plethora of commercial and legal, not just political, considerations, which do need to be discussed as a matter of some urgency in the public interest. Such discussion will be to the benefit of all involved parties.

The judiciary must have a clear understanding of how this law was arrived at, for it to interpret the ‘intention of parliament’ when any disputes arise as they indeed will. To help it, it has the Bill and Act itself, as well records in Hansard. The case and statute law, both domestic and EU law, have a recent history in effecting English NHS health policy, but only in as much the NHS has encroached upon ‘undertakings’ and ‘economic activity’ in EU law. The Health and Social Care Act (2012) has changed the legal climate substantially; indeed, the ambit of competition is thrown very wide indeed, as reflected in Regulation 10.

Section 75 of the Health and Social Care Act has firmly enmeshed the Act in competition legislation, parallel to but distinct from previous legislation such as the Public Contracts Regulations (2006). However, the adoption of key concepts and themes from the European law, voluntarily by the English legislature as proposed in the statutory instrument, makes it rather unclear as to the actual ‘direction of travel’. It as if Parliament has wished to enmesh the NHS in European competition and procurement law, without any democratic scrutiny. The aforementioned statutory instrument is particularly vague on the precise functions of Monitor in the distinct phases of award and execution of procurement, does not map out how Monitor is to function on behalf of key stakeholders in the NHS along with other regulatory processes (such as judicial review or the health ombudsman), and how precisely this English legal framework will operate alongside other approaches (such as the UNCITRAL Model law, European regimens, and World Trade Organisation).

Critically, it seems quite mysterious how overall this particular method was chosen (formal tendering, as opposed to less structured methods of competitive tendering such as requests for proposals and quotations, or single-source procurement), when the discussions in the lower and upper Houses of Parliament did not heavily lean in this direction in the first place. (Such methods are extensively discussed in ‘Regulating Public Procurement: National and International Perspectives’ (2000) Sue Arrowsmith, John Linarelli and Don Wallace Jr. Kluwer Law International). This obligatory competitive tendering mechanism for the majority of tenders is a robust method of making sure as many contracts are awarded to the private sector as possible. There would be nothing to prevent parliament from legislating for a minimum of NHS services to stay in the NHS, as that would not offend any law in Europe; it does not distort the market, but for public policy reasons could easily be argued to have a legitimate reason. For example, if a key provider, e.g. of blood products, went bust, this could be the detriment of the entire service, and protection for such a service can easily be justified under statute.

Some specific points which are particularly noteworthy are raised in the Appendix.

APPENDIX

Regulation 3

3 (2)(b): “treat providers equally and in a non-discriminatory way, including by not treating aprovider, or type of provider, more favourably than any other provider, in particular onthe basis of ownership.”

It is quite unclear what this is driving at, and whether equality of providers is indeed a primary aim of the procurement process. For example, UNCITRAL model law on procurement of goods, construction and services lists this as an objective in the preamble to the law, but the Guide to Enactment suggests perhaps it is a subsidiary role.  Cases such as Fabricom case (Fabricom SA v Belgium (Judgment Joined Cases C-21/03, C-34/03, 3 March 2005) are particularly helpful here.

 3(b) What does “best value” in this sector indeed mean? Typical considerations such as  “value for money”, as well as social, technological, environmental and various other non-price considerations, need to be discussed at some point. Again, this is essential if the law and guidance for the NHS procurement is to have adequate clarity. The point is not so much playing party-politics about grinding this legislation to a halt with an intellectual ping-pong, but it is helpful, if this clause is to be included in this statutory instrument, to understand what is in parliament’s mind for later disputes to be resolved. Presumably Monitor have begun to think about this as they hope to issue specific guidance on this?

3(4)(c)  “allowing patients a choice of provider of the services” – as drafted it is unclear whether the true beneficiaries of the choice of providers are the patients themselves or CCGs (the relevant bodies); the relationship between actual patient choice and vicarious choices made by the CCGs is not addressed in this statutory instrument.

Regulation 4

Transparency for contract opportunities. This is indeed helpful to provide a rough check on how contracts are being awarded, but it has to be conceded that the public will be largely none-the-wiser as they will perform functions under the NHS logo (unless parliament requires the full identity of providers to be disclosed at the point-of-use for any particular patient.)

Regulation 6

This regulation, as drafted, is only confined to conflicts between purchasers and suppliers in the NHS, but a purpose of clauses such as this in other jurisdictions has been to address wider conflicts-of-interest, such as political donations. Although it may not be desirable to extend the ambit of discussion here too widely, some consideration should be made to how this might relate to other existant laws concerning bribery currently in force in England, for example?

Regulation 7

“Framework agreements”, which are not in fact ‘necessary’ will require in due course much greater detail  if they are to be included. They certainly require, pursuant to Stroud, some scrutiny. How many suppliers will be involved in such agreements, as this relates to a complex interplay between operational efficiency, security of supply and the scope of competition? The question has to be why they have been imported from EU procurement law voluntarily, when there is actually no obligation to. It would be helpful if parliament could provide some indication of the processes and purpose of any shortlisting in the operation of these framework agreements, particularly in relation to relevant national policy considerations and disclosure of relevant criteria?

Regulations 13-17: Monitor (Investigations, declarations, directions and undertakings)

Ideally the outcome should be clear rule-based decision-making systems that limits the discretion of procuring entities. Monitor will have to have to explain this in due course, but no mention even is made of the types of issues which Monitor might have to face (e.g. fraudulent information in the bidding or execution phases, mechanisms of correcting any errors, late tenders.)

There should be a senior public health physician on the NHS Commissioning Board

The current NHS Commissioning Board include Sir David Nicholson, who has apologised for the deaths numbering in the region of 400-1200 at Mid Staffs and who is alleged to have been warned by NHS whistleblower about serious patient safety issues, and Dame Barbara Hakin, “..who was then head of the East Midlands strategic health authority and is now national director for commissioning development at the NHS Commissioning Board, ordered him to meet the national targets regardless of demand.” The General Medical Council has launched an investigation into a complaint against national director for commissioning development Dame Barbara Hakin, according to the HSJ.

The UK Faculty of Public Health (FPH), part of the Royal Colleges of Physicians (London college), is the standard setting body and the leading professional body for public health specialists in the UK. It aims to advance the health of the population through three key areas of work: health promotion, health protection and healthcare improvement. In addition to maintaining professional and educational standards for specialists in public health, FPH advocates on key public health issues and provides practical information and guidance for public health professionals. The Faculty of Public Health, of the Royal College of Physicians, responded to a consultation on the document “Liberating the NHS: commissioning for patients”.

In their response, the Faculty of Public Health set out a very clear case of how public health professionals could and show be involved in commissioning, for example:

“Specialist commissioning should be integrated with the work of GP consortia by the establishment of national subgroups for the relevant specialities of the NHS Commissioning Board. The relevant National Clinical Directors should sit on these groups, and the groups should provide guidance for consortia. GP consortia should have leads for specialised commissioning who link up with the relevant clinical subgroups. These leads would meet regionally/subnationally and would engage with secondary care colleagues and public health specialists. Specialist public health and commissioning advice would also be essential to ensure that specialised commissioning is responsive to local need, is prioritised appropriately and takes into account the primary prevention aspects of the clinical conditions for which it is responsible; and to ensure that commissioning plans integrate prevention, primary and secondary healthcare and social care. Resource allocation decisions should be scrutinised to ensure that they are consistent with priorities for health and wellbeing. Specialist public health advice will ensure that only cost and clinically effective interventions are commissioned and that appropriate account is taken of overall population health.”

Indeed, in November 2012, the NHS Commissioning Board (NHS CB) and the Department of Health published their detailed agreement showing how the NHS CB will drive improvements in the health of England’s population through its commissioning of certain public health services. The agreement sets out the outcomes to be achieved in exercising these public health functions and provides ring fenced funding for the NHS CB to commission public health services. The services commissioned as part of this agreement are those where there is, for example, alignment with national clinical pathways and added value of central commissioning. Please refer to this document which details how public health functions to be exercised by the NHS Commissioning Board.

Whether you think the burden of opinion should be on the balance of probabilities or beyond reasonable doubt, there is a strong arguable case that there should be a Director of Public Health on the NHS CB. However, bodies which might have protected against problems in national health policy, such as the Food Standards Agency, the Health Protection Agency, and the National Patient Safety Agency, are all being abolished. Also, the fate of the NHS Commissioning Board itself after 2015, a body which has been called “the biggest QUANGO ever“, is uncertain.

Like horsemeat, does it matter that NHS services are being mislabelled?

This is a totally independent post and does not represent the views of the Socialist Health Association.

Of course, in marketing, authenticity is everything.

David Cameron recently relaunched his botched Coalition with the remark that his Coalition is ‘everything it says on the tin’. Everything apart from the scrapping of PCTs, the £3bn “top-down reorganisation”, and other things, for example.

Opposition to the Health and Social Care Act (2012) would have loved the publicity which surrounded ‘the horsemeat scandal’. An insatiable appetite by the public for cheaper goods or services has been to blame for the investment by private equity in horsemeat, appearing thereafter as Beef Lasagne. An insatiable appetite for the NHS to be run more cheaply could be a driver for private equity to run NHS services with ‘greater efficiency’ and lower cost. However, the new guidelines on commissioning, published this week, allow for the possibility of commissioning services for increased cost but ‘greater value’; this will help of course to enhance shareholder dividend. Every little bit helps.

The NHS brand is worth quite a lot, so much so the trademark is registered for all to see. In the English law, the trademark represents the “badge of origin” – so that customers know where the product is coming from. Infringement of trademarks occurs where there is genuine confusion in the mind of the customer where a product has come from, particularly if the trademark has a lot of goodwill attached. And yes, there is a lot of goodwill attached to the NHS logo, which means that even Conservative ministers such as Jeremy Hunt, even after #Francis, ‘handle it with care’. The new commissioning guidelines have made a big play of ‘accountability’, i.e. you can look up where contracts have been awarded on a website. That does not get round the legal deception, that private health providers are selling their product under the NHS logo. Of course, the health services provided by private health providers are not “toxic”, but nor strictly speaking is horsemeat.

Selling horsemeat as beef is however a criminal offence. It satisfies easily the fraud by false representation offence under the Fraud Act, of selling something represented as something else with a view to causing a deception for financial profit. That private companies are able to provide NHS services is of course perfectly acceptable under the law as it is drafted, but the lawyers who drafted the  guidelines for commissioning aren’t stupid. They have enshrined in law how commissioners must look to any willing provider, such that the “sector regulator” Monitor can remedy, even in the absence of a complaint, any fault. This is a direct measure to remove any barriers-to-entry for private companies to enter and literally take over the NHS.

Horsemeat was uncovered because of a failure (or success) of regulation, depending upon your viewpoint. Whilst the new Health and Social Care Act is sold by free marketeers as “liberalising the market”, the new market clearly needs regulation. Whilst it is not a horsemeat-type scenario, private equity are seeking to make profit out of a different sector of goods and services, and it is essential that, for the public, ‘what you see is what you get’. Given that the majority of the public do not know what is happening to the NHS due to the blanket ban on media coverage, this is likely to be a big problem in future?

 

Please feel free to contact me on @legalaware if you wish to have a constructive debate about any of the issues therein. Many thanks.

National Health Service (Procurement, patient choice and competition) Regulations 2013: what is “best value”?

This is a totally independent post and does not represent the views of the Socialist Health Association.

The National Health Service (Procurement, patient choice and competition) Regulations 2013 is the statutory instrument which makes much more sense of the procurement regimen introduced previously. There is hardly any time to discuss the subtleties of this relatively short document which firmly thrusts the rules of the market in “competition” at the heart of NHS procurement. Many will say that these regulations existed in some form previously, but the legal intricacies of them definitely deserve full scrutiny. It sends CCGs into the coalface of making complicated procurement decisions, where the quality of tender might become significantly more important than actual “patient choice”. The procurement legislation as drafted could equally apply to procurement of virtually anything.

What exactly does Labour achieve by coming third in the Eastleigh by-election?

This is a totally independent post and does not represent the views of the Socialist Health Association.

If ‘expectation management’ were recognised in awards, the Liberal Democrats would get the Nobel Prize.

Martin Rathfelder, Director of the Socialist Health Association, said recently, “By-elections are funny things”. When Labour loses the Eastleigh by-election, the Labour line, as surely as night follows day, will be that nobody expected Labour to win this Hampshire seat which is safe territory for the Tories and Liberal Democrats. The Conservatives can never be underestimated for making a fight back, as anyone who remembers the 1992 general election will testify. And for whatever the faults of Chris Huhne and David Laws, many voters in that part of the country are very loyal to them and the Liberal Democrats.

Why are Labour and the National Health Action Party playing so hard-to-get with each other?

This is a totally independent post and does not represent the views of the Socialist Health Association.

Despite being a rather corporate slogan, ‘diversity’ is much valued, and maybe Labour should welcome a new ‘kid on the block’? If the next big thing of 2012 was ‘muscular liberalism’, perhaps Labour should not adopt a stance of ‘divisive socialism’ against newbies, the National Health Action Party (@NHAParty). Why are Labour and the National Health Action Party playing so hard-to-get with each other? This issue has been all-the-more crucial to address with the imminent by-election in the safe Tory/LibDem seat of Eastleigh.

No doubt Labour will have a full frontal range of attitudes and emotions towards the National Health Action Party: in my circle of followers on Twitters, opinions have ranged from, “they’re definitely worth listening to” to “they’ll be lucky if they get 10 votes”. Labour cannot escape from discussing the NHS, even if it feels it can still play a ‘strong hard’, but much like all else they do they run the risk of taking Labour voters for granted on the NHS.

Dr Clive Peedell (@cpeedell) doesn’t want the creeping marketisation of the NHS to go any further. Andy Burnham MP (@andyburnhammp) was the person who ventured out into ‘NHS global’, so that Foundation Trusts could sell their products abroad under the NHS logo, and who continued the march of the NHS Foundation Trust machine.

However, Andy feels now ‘enough-is-enough’. Despite being from the Labour (and some would say “New Labour”) stable, Andy has signalled that he wishes to repeal the Health and Social Care Act (2012). Of course, reversing the changes in it presents a more formidable challenge, but Andy says that he wishes to reverse Part 3 of the Act. This is code for getting rid of the fact that private companies, to which the NHS has been increasingly outsourced, will not be ‘competing’ to do what the NHS is supposed to do, using the NHS logo to maximise their own shareholder dividend. The unfortunate effect of engaging domestic and international competition law has become the ludicrous situation where the NHS cannot be given any preferential treatment for fear of offending European law, ‘distorting’ the market and so on.

There are strong economic arguments for not running the NHS in a fragmented piecemeal outsourced fashion; not least the NHS can benefit economically from ‘economies-of-scale’ and there is hope that with the proper leadership it can further national policy. Unfortunately, Sir David Nicholson and his army have stayed in situ when cultural change, when – in fact – a new charismatic change leader, is need to drive a move away from his failed ‘efficiency savings’. Efficiency was managerial speak for a Frederick Taylor-approach to management, looking at productivity and activity, meaning that one Foundation Doctor would be running around all the geriatric wards for the whole-of-the-night while his or her colleague was doing all the geriatric admissions in Casualty, to save money. The fact that you cannot have ‘something for nothing’, a popular philosophy of Thatcher, is borne out by the 400-1200 deaths in Stafford, where the inaction by the health regulatory bodies has been striking, and the political reaction somewhat confused.

In innovation, it’s possible for a new entrant to dislodge an incumbent by a slight subtlety. That is the basis of the splendid body of work by Prof Clay Christensen at Harvard Business School. However, nobody is expecting the NHA Party, co-founded by Dr Clive Peedell, a NHS oncologist, to dislodge Labour. However, Labour have openly admitted that Eastleigh is 285th on their “hit list”, so many question indeed Ed Miliband’s wisdom in spectacularly losing a safe Hampshire seat.

We have seen coalitions can work for one of the parties within it. We have also seen single-issue parties getting MPs somehow, such as Caroline Lucas in Brighton. If you park aside the perceived differences of NHA Party and Labour, given that Labour is “the party of the NHS” with its own brand loyalty, it might be conceded that Labour not winning does not further the NHS debate. It is possible that, as a protest vote against the Conservatives and Liberal Democrats, the NHA Party do indeed have a fighting chance of getting one MP.

And what is the point of one MP? Well what is the point of a handful of Liberal Democrats? In practice management techniques, such as PRINCE2, it is customary for there to be a ‘senior user’ as well as a ‘senior customer’ on your project board. While many will balk at the idea of ‘customers’ of NHS, unlike Prof Karol Sikora at the weekend on BBC’s “Sunday Politics”, there is a lot to be said, arguably, for input from frontline doctors and other healthcare staff in the NHS debate.

To delve into business management speak, which has possibly crippled the NHS thus far, the NHA Party and Labour have important synergies in values and competences in their outlook on the NHS. Ironically, there is an active debate about how collaboration, as well as (or rather than) competition, should be encouraged. It might be time to ‘think the unthinkable’, and consider the vague possibility that Labour, while desperately trying to fight for an electoral majority in 2015 despite the statistical odds, might benefit from a strategic alliance, or partnership, with the NHA Party. This does not need to be a formal joint venture, but, to expand the business analogy, could be a clever way for Labour to reaffirm its commitment to the NHS and for the NHA Party to gain ‘market entry’. Given that the traditional media appear not to allow the NHA Party to discuss the agenda fully, this may not be a bad thing, I feel.

Please feel free to contact me on @legalaware if you wish to have a constructive debate about any of the issues therein. Many thanks.