“All it takes for evil to succeed is for a few good men to do nothing…”

“All it takes for evil to succeed is for a few good men to do nothing…” is the famous saying by Edmund Burke.

Burke despised the abuse of power, so one can only wonder what he would have made of the enactment of the Health and Social Care Act (2012).

It’s often forgotten that the original name of the Liberal Democrats Party is the ‘Social and Liberal Democratic Party’. Nick Clegg worked for Tory Grandee, Leon Brittan, so is bound to have been the recipient of right-wing ideological stardust. David Laws, Nick Clegg and others like them don’t like to describe themselves as “social democrats”, they prefer to describe themselves as Liberals favouring ‘the smaller state’ in the tradition of J.S. Mill.  David Laws has described previous Labour governments as having too many collective social democrat experiments, and possibly feels as much hostility towards Labour as is probably felt towards ‘the Orange Bookers’ by Labour members.

The idea of Labour voluntarily wishing to go into a Coalition with the Liberal Democrats in May 2015 should frankly make you wish to throw up down the nearest toilet. Lord Andrew Adonis explains his version of events in the account in “5 days in May”, and from it emerges a clean narrative of how the Liberal Democrats only used their abortive negotiations with Labour to try to improve their bargaining hand with the Conservatives. The brilliant Matthew d’Ancona is consistent with his account too. Nick Clegg clearly wanted to ‘go right’, and not go left. Clegg had reached a judgment, despite policy overlap with Labour, that a Lib-Lab coalition was not going to work. To explain, in his book ‘In It together’ D’Ancona describes a tight social circle running the Tory side of the coalition – “old friends, their wives, ex-girlfriends, all joining each other for holidays and dinner parties and sharing childcare, now all ministers or Downing Street staffers.”

There were no negotiations between the Liberal Democrats and Labour on the ‘economic plan’. Vince Cable was not even on the LibDems’ negotiating team. Nick Clegg signed up to ‘faster and deeper’ cuts, and the full ‘Go large’ offer of welfare reforms. Clegg’s promise that he would negotiate first with the party which achieved the most seats had no constitutional precedent. This move was clearly to legitimitise an opening to the Conservatives, and to his own party.

The writing was always on the wall for the NHS too. Nick Clegg’s wife was formerly a partner in charge of competition law work for the large corporate firm DLA Piper. This global legal partnership has been heavily involved in European competition law is DLA Piper, who provide lobbying, public affairs and trade policy services, as well as advice on how to get access to public service delivery contracts. One partner of the firm who is part of the Liberal Democrat Peer who ended up being highly influential was Lord Tim Clement-Jones, in seeing new the competition regulations reach the statute books this year.

“Neoliberalism” is an updated version of the classical liberal economic thought that was dominant in the US and UK prior to the Great Depression of the 1930s. From roughly the mid 1930s to the mid 1970s a new “interventionist” approach replaced classical liberalism. It became the accepted belief that capitalism requires significant state regulation in order to be viable. And we are seeing Labour returning to the idea that unregulated markets do not act to the benefit of the consumer, in his attack on ‘energy prices’. The “cost of living crisis”, whilst not directly about the NHS, is entirely about the dialogue between the State and the markets, which has become so essential for the UK Labour Party to negotiate.

In the 1970s the Old Religion of classical liberalism made a rapid comeback, first in academic economics and then in the realm of public policy. Neoliberalism is both a body of economic theory and a policy stance. Neoliberal theory claims that a largely unregulated capitalist system (a “free market economy”) not only embodies the ideal of free individual choice but also achieves optimum economic performance with respect to efficiency, economic growth, technical progress, and distributional justice. This idea has lingered on in the neoliberal policies of all three major parties, in “personal health budgets” which should be more accurately described as “individualised” budgets. With the combination of health and social care budgets likely to form a thrust of Labour’s “whole person care” policy, the neoliberal concept of choice is potentially very much alive and well, but it will be for Burnham and colleagues to swing the pendulum back towards the inherent socialist (and left populist) notion of putting a ‘national care service’ on an equal footing with health. In this narrative, which Labour had thus far been reluctant to question before Burnham noticeably started making strong ‘anti-market noises’, the State is assigned a very limited economic role: defining property rights, enforcing contracts, and regulating the money supply. State intervention to correct market failures is viewed with suspicion, on the ground that such intervention is likely to create more problems than it solves. If Ed Miliband’s concept of the relationship between the State and markets is anything to go by, and this itself represents a marked departure from Tony Blair’s viewpoint, Andy Burnham is likely to be able to make inroads into this socialist agenda.

The definition of socialism is in fact well known to all members of the Labour Party, by virtue of their membership card. It is worth noting that recent policy decisions have been promoting neoliberalism, and the net effect has been that the Socialist Health Association has been asleep at the wheel. Competition is a massive shoo-horn into neoliberalism.  Nearly exactly one year ago, I described how section 75 of the Health and Social Care Act (2012) would be exactly the sort of legislative mechanism which would impose competition like never before on the NHS. As Lynton Crosby himself says, “You should lock in the base, and then go for the swing?” In my view, the base is competition, the swing is the free movement of capital.

My article on the Socialist Health Association website is here, long before Polly Toynbee and David Nicholson were reporting as thinking that competition was a problem. Once capitalism had become well established in the US after the Civil War, it entered period of cutthroat competition and wild accumulation known as the Robber Baron era. In this period a coherent anti-interventionist liberal position emerged and became politically dominant. Despite the enormous inequalities, the severe business cycle, and the outrageous and often unlawful behavior of the Goulds and Rockefellers, the idea that government should not intervene in the economy held sway through the end of the 19th century.

What explains this political difference between large and small business? The mood music appears to be that Labour is intending to refine its pledge of ‘being the  party of business’. Ed Miliband in his conference speech of 2013 made quite a big play of ‘standing up to bullies’ rather than ‘the weak’. It would therefore make no intuitive sense for Miliband to become very pro-corporations and ignoring SMEs. And this makes complete sense when you understand the relationship of the symbiotic relationship between the State and big corporations. When large corporations achieve significant market power and become freed from fear concerning their immediate survival, they tend to develop a long time horizon and pay attention to the requirements for assuring growing profits over time. They come to see the state as a potential ally. Having high and stable monopoly profits, they tend to view the cost of government programs as something they can afford, given their potential benefits. By contrast, the typical small business faces a daily battle for survival, which prevents attention to long-run considerations and which places a premium on avoiding the short-run costs of taxation and state regulation. This explains the radically different positions that big business and small business held regarding the proper state role in the economy for the first two-thirds of the twentieth century. It is no particular surprise that some of the G8 dementia summit agenda has had textbook ‘corporate capture’, in going down the road of personalised genomics medicine rather than care.

To some extent, this “horse has bolted”, and it is to his credit that Andy Burnham MP has vigorously said the marketisation of the NHS went far too far. For example, in his first ever Healthwatch Conference speech,

“I think we let the market in too far. The time has come to say that and to draw a line and make a break with it. If you let this market in too far, I believe, in the end, you will destroy the whole, what is so fantastic about the NHS, that ethos that Danny Boyle captured so memorably at the opening ceremony of the Olympic Games.”

Andy Burnham, as Shadow Secretary of State for Health, has pledged to repeal the Health and Social Care Act (2012), which will go some way to discredit the extremely poor arguments for competition which have emerged from prominent healthcare analysts in recent years. There is no doubt, for example, that the merger involving Royal Bournemouth and Christchurch hospitals NHS foundation trust and Poole Hospital NHS foundation trust was a particularly low point. All the people whom I have spoken to in private think that Andy Burnham MP and all members of the Shadow Health Team really firmly believe what they’re saying, in standing up for the NHS. This should in theory be low hanging fruit for Labour as Labour is consistently many % points ahead of the Conservatives on the NHS. It should also be in theory low hanging fruit for the Socialist Health Association.

Having failed so triumphantly in having warned about the threat posed by this pro-competition legislative instrument, the Socialist Health Association is at risk of being asleep at the wheel yet again over a second and equally crucial matter. Some analysts argue that globalisation has produced a world of such economic interdependence that individual nation-states no longer have the power to regulate capital. Free movement of capital is described as being “at the heart of the Single Market and is one of its ‘four freedoms'”. According to the European Commission,

“It enables integrated, open, competitive and efficient European financial markets and services – which bring many advantages to us all.”

Tony Benn has described graphically how he considers “free movement of capital” to be a threat to basic democracy in socialism. Benn argues that this particular free movement imperialism under a new form: only the agents of imperialism are companies rather than countries. To this extent, the media excitement as to whether you should provide NHS treatment for migrants bring something to mind: “smoke and mirrors”.

And what about the EU-US Free Trade Treaty? This is the second big issue nobody wants to talk about, as it is the “swing” part of neoliberalising “our NHS”. The aim of the Agreement, according to the Commission, is to remove ‘unnecessary obstacles to trade and investment, including existing NTBs, through effective and efficient mechanisms, by reaching an ambitious level of regulatory compatibility for goods and services, including through mutual recognition, harmonisation and through enhanced cooperation between regulators’. (Art 24) It is mooted that the EU-US treaty would set in stone all liberalisation and privatisation measures already achieved at the time the treaty is signed and bring all future regulations within the restrictive provisions of the agreement. This treaty, if passed, would represent an enormous challenge to public-owned health services across Europe. There was very little awareness in Europe, even among those wanting to defend public services, to the implications of the EU-Canada agreement. Debbie Abrahams has become a lone voice virtually in discussing this in parliament.  It would now be very desirable that campaigns in Britain pay serious attention to the US-EU negotiations and link up with campaigns in other EU states, and the Socialist Health Association as a national entity affiliated to the Labour Party should have a clear view on this. It would be even more helpful for its members if this settled view were consistent with a definition of socialism ‘as we know it’.

Whatever one’s precise definitions of privatisation and nationalisation, in the context of the NHS, it is clear that the public have some views about national identity and state ownership of assets. This is borne out by the electoral successes which are widely predicted for UKIP int the European Elections next year. So far, we’ve had the debate, but with no thanks to the BBC, of how the NHS is being outsourced and privatised without anyone’s knowledge. It is essential that the Socialist Health Association is fit for purpose in influencing Labour policy in 2014, in having a view on whether it wants to see primary care as well as services in NHS hospitals being run by private domestic and multi-national companies for maximisation shareholder dividend. This of course would be a tragedy in a year in the run-up to the General Election on May 7th 2015, though this is as much about a battle for the soul of the Labour Party as it is  about winning an election.

In 1945 Herbert Morrison was given responsibility for drafting the Labour Party manifesto that included the blueprints for the nationalsation and welfare programmes:

“The Labour Party is a socialist party and proud of it. Its ultimate purpose at home is the establishment of the Socialist Commonwealth of Great Britain – free, democratic, efficient, progressive, public-spirited, its material resources organized in the service of the British people.”

But also – all it takes for evil to succeed is for a few good men to do nothing.

 

My blog on ‘Living well with dementia’ is here.

“All it takes for evil to succeed is for a few good men to do nothing…”

“All it takes for evil to succeed is for a few good men to do nothing…” is the famous saying by Edmund Burke.

Burke despised the abuse of power, so one can only wonder what he would have made of the enactment of the Health and Social Care Act (2012).

It’s often forgotten that the original name of the Liberal Democrats Party is the ‘Social and Liberal Democratic Party’. Nick Clegg worked for Tory Grandee, Leon Brittan, so is bound to have been the recipient of right-wing ideological stardust. David Laws, Nick Clegg and others like them don’t like to describe themselves as “social democrats”, they prefer to describe themselves as Liberals favouring ‘the smaller state’ in the tradition of J.S. Mill.  David Laws has described previous Labour governments as having too many collective social democrat experiments, and possibly feels as much hostility towards Labour as is probably felt towards ‘the Orange Bookers’ by Labour members. The irony is, of course, that the “fixed term parliament” to run from May 7th 2010 – May 7th 2015, has only led to everyday being a phoney election (rather than bringing stability). This is in doubt continue for 2014.

The idea of Labour voluntarily wishing to go into a Coalition with the Liberal Democrats in May 2015 should frankly make you wish to throw up down the nearest toilet. Lord Andrew Adonis explains his version of events in the account in “5 days in May”, and from it emerges a clean narrative of how the Liberal Democrats only used their abortive negotiations with Labour to try to improve their bargaining hand with the Conservatives. The brilliant Matthew d’Ancona is consistent with his account too. Nick Clegg clearly wanted to ‘go right’, and not go left. Clegg had reached a judgment, despite policy overlap with Labour, that a Lib-Lab coalition was not going to work. To explain, in his book ‘In It together’ D’Ancona describes a tight social circle running the Tory side of the coalition – “old friends, their wives, ex-girlfriends, all joining each other for holidays and dinner parties and sharing childcare, now all ministers or Downing Street staffers.”

There were no negotiations between the Liberal Democrats and Labour on the ‘economic plan’. Vince Cable was not even on the LibDems’ negotiating team. Nick Clegg signed up to ‘faster and deeper’ cuts, and the full ‘Go large’ offer of welfare reforms. Clegg’s promise that he would negotiate first with the party which achieved the most seats had no constitutional precedent. This move was clearly to legitimitise an opening to the Conservatives, and to his own party.

The writing was always on the wall for the NHS too. Nick Clegg’s wife was formerly a partner in charge of competition law work for the large corporate firm DLA Piper. This global legal partnership has been heavily involved in European competition law is DLA Piper, who provide lobbying, public affairs and trade policy services, as well as advice on how to get access to public service delivery contracts. One partner of the firm who is part of the Liberal Democrat Peer who ended up being highly influential was Lord Tim Clement-Jones, in seeing new the competition regulations reach the statute books this year.

“Neoliberalism” is an updated version of the classical liberal economic thought that was dominant in the US and UK prior to the Great Depression of the 1930s. From roughly the mid 1930s to the mid 1970s a new “interventionist” approach replaced classical liberalism. It became the accepted belief that capitalism requires significant state regulation in order to be viable. And we are seeing Labour returning to the idea that unregulated markets do not act to the benefit of the consumer, in his attack on ‘energy prices’. The “cost of living crisis”, whilst not directly about the NHS, is entirely about the dialogue between the State and the markets, which has become so essential for the UK Labour Party to negotiate.

In the 1970s the Old Religion of classical liberalism made a rapid comeback, first in academic economics and then in the realm of public policy. Neoliberalism is both a body of economic theory and a policy stance. Neoliberal theory claims that a largely unregulated capitalist system (a “free market economy”) not only embodies the ideal of free individual choice but also achieves optimum economic performance with respect to efficiency, economic growth, technical progress, and distributional justice. This idea has lingered on in the neoliberal policies of all three major parties, in “personal health budgets” which should be more accurately described as “individualised” budgets. With the combination of health and social care budgets likely to form a thrust of Labour’s “whole person care” policy, the neoliberal concept of choice is potentially very much alive and well, but it will be for Burnham and colleagues to swing the pendulum back towards the inherent socialist (and left populist) notion of putting a ‘national care service’ on an equal footing with health. In this narrative, which Labour had thus far been reluctant to question before Burnham noticeably started making strong ‘anti-market noises’, the State is assigned a very limited economic role: defining property rights, enforcing contracts, and regulating the money supply. State intervention to correct market failures is viewed with suspicion, on the ground that such intervention is likely to create more problems than it solves. If Ed Miliband’s concept of the relationship between the State and markets is anything to go by, and this itself represents a marked departure from Tony Blair’s viewpoint, Andy Burnham is likely to be able to make inroads into this socialist agenda.

The definition of socialism is in fact well known to all members of the Labour Party, by virtue of their membership card. It is worth noting that recent policy decisions have been promoting neoliberalism, and the net effect has been that the Socialist Health Association has been asleep at the wheel. Competition is a massive shoo-horn into neoliberalism.  Nearly exactly one year ago, I described how section 75 of the Health and Social Care Act (2012) would be exactly the sort of legislative mechanism which would impose competition like never before on the NHS. As Lynton Crosby himself says, “You should lock in the base, and then go for the swing?” In my view, the base is competition, the swing is the free movement of capital.

My article on the Socialist Health Association website is here, long before Polly Toynbee and David Nicholson were reporting as thinking that competition was a problem. Once capitalism had become well established in the US after the Civil War, it entered period of cutthroat competition and wild accumulation known as the Robber Baron era. In this period a coherent anti-interventionist liberal position emerged and became politically dominant. Despite the enormous inequalities, the severe business cycle, and the outrageous and often unlawful behavior of the Goulds and Rockefellers, the idea that government should not intervene in the economy held sway through the end of the 19th century.

What explains this political difference between large and small business? The mood music appears to be that Labour is intending to refine its pledge of ‘being the  party of business’. Ed Miliband in his conference speech of 2013 made quite a big play of ‘standing up to bullies’ rather than ‘the weak’. It would therefore make no intuitive sense for Miliband to become very pro-corporations and ignoring SMEs. And this makes complete sense when you understand the relationship of the symbiotic relationship between the State and big corporations. When large corporations achieve significant market power and become freed from fear concerning their immediate survival, they tend to develop a long time horizon and pay attention to the requirements for assuring growing profits over time. They come to see the state as a potential ally. Having high and stable monopoly profits, they tend to view the cost of government programs as something they can afford, given their potential benefits. By contrast, the typical small business faces a daily battle for survival, which prevents attention to long-run considerations and which places a premium on avoiding the short-run costs of taxation and state regulation. This explains the radically different positions that big business and small business held regarding the proper state role in the economy for the first two-thirds of the twentieth century. It is no particular surprise that some of the G8 dementia summit agenda has had textbook ‘corporate capture’, in going down the road of personalised genomics medicine rather than care.

To some extent, this “horse has bolted”, and it is to his credit that Andy Burnham MP has vigorously said the marketisation of the NHS went far too far. For example, in his first ever Healthwatch Conference speech,

“I think we let the market in too far. The time has come to say that and to draw a line and make a break with it. If you let this market in too far, I believe, in the end, you will destroy the whole, what is so fantastic about the NHS, that ethos that Danny Boyle captured so memorably at the opening ceremony of the Olympic Games.”

Andy Burnham, as Shadow Secretary of State for Health, has pledged to repeal the Health and Social Care Act (2012), which will go some way to discredit the extremely poor arguments for competition which have emerged from prominent healthcare analysts in recent years. There is no doubt, for example, that the merger involving Royal Bournemouth and Christchurch hospitals NHS foundation trust and Poole Hospital NHS foundation trust was a particularly low point. All the people whom I have spoken to in private think that Andy Burnham MP and all members of the Shadow Health Team really firmly believe what they’re saying, in standing up for the NHS. This should in theory be low hanging fruit for Labour as Labour is consistently many % points ahead of the Conservatives on the NHS. It should also be in theory low hanging fruit for the Socialist Health Association.

Having failed so triumphantly in having warned about the threat posed by this pro-competition legislative instrument, the Socialist Health Association is at risk of being asleep at the wheel yet again over a second and equally crucial matter. Some analysts argue that globalisation has produced a world of such economic interdependence that individual nation-states no longer have the power to regulate capital. Free movement of capital is described as being “at the heart of the Single Market and is one of its ‘four freedoms'”. According to the European Commission,

“It enables integrated, open, competitive and efficient European financial markets and services – which bring many advantages to us all.”

Tony Benn has described graphically how he considers “free movement of capital” to be a threat to basic democracy in socialism. Benn argues that this particular free movement is simply “imperialism” under a new form: only the agents of imperialism are companies rather than countries. To this extent, the media excitement as to whether you should provide NHS treatment for migrants brings something to mind: “smoke and mirrors”.

And what about the EU-US Free Trade Treaty? This is the second big issue nobody wants to talk about, as it is the “swing” part of neoliberalising “our NHS”. The aim of the Agreement, according to the Commission, is to remove ‘unnecessary obstacles to trade and investment, including existing NTBs, through effective and efficient mechanisms, by reaching an ambitious level of regulatory compatibility for goods and services, including through mutual recognition, harmonisation and through enhanced cooperation between regulators’. (Art 24) It is mooted that the EU-US treaty would set in stone all liberalisation and privatisation measures already achieved at the time the treaty is signed and bring all future regulations within the restrictive provisions of the agreement. This treaty, if passed, would represent an enormous challenge to public-owned health services across Europe. There was very little awareness in Europe, even among those wanting to defend public services, to the implications of the EU-Canada agreement. Debbie Abrahams has become a lone voice virtually in discussing this in parliament.  It would now be very desirable that campaigns in Britain pay serious attention to the US-EU negotiations and link up with campaigns in other EU states, and the Socialist Health Association as a national entity affiliated to the Labour Party should have a clear view on this. It would be even more helpful for its members if this settled view were consistent with a definition of socialism ‘as we know it’.

Whatever one’s precise definitions of privatisation and nationalisation, in the context of the NHS, it is clear that the public have some views about national identity and state ownership of assets. This is borne out by the electoral successes which are widely predicted for UKIP int the European Elections next year. So far, we’ve had the debate, but with no thanks to the BBC, of how the NHS is being outsourced and privatised without anyone’s knowledge. It is essential that the Socialist Health Association is fit for purpose in influencing Labour policy in 2014, in having a view on whether it wants to see primary care as well as services in NHS hospitals being run by private domestic and multi-national companies for maximisation shareholder dividend. This of course would be a tragedy in a year in the run-up to the General Election on May 7th 2015, though this is as much about a battle for the soul of the Labour Party as it is  about winning an election.

In 1945 Herbert Morrison was given responsibility for drafting the Labour Party manifesto that included the blueprints for the nationalisation and welfare programmes:

“The Labour Party is a socialist party and proud of it. Its ultimate purpose at home is the establishment of the Socialist Commonwealth of Great Britain – free, democratic, efficient, progressive, public-spirited, its material resources organized in the service of the British people.”

But also – all it takes for evil to succeed is for a few good men to do nothing.

The “official top 40” of my most viewed articles on the SHA website this year

I have done around 200 blogposts for the SHA website this year.

According to the website statistics which we receive, this is the official top 40 of my top viewed websites on the Socialist Health Association blog this year.

Thank you if you’ve read any of my blogposts this year!

 

 Top 10

1. http://www.sochealth.co.uk/2013/11/10/nhs-privatisation-end-game/
2. http://www.sochealth.co.uk/2013/05/25/avoiding-the-rollercoaster-a-policy-for-dementia-must-be-responsible/
3. http://www.sochealth.co.uk/2013/10/06/jeremy-hunt-fiddles-rome-ae-burns-smear-campaign-continues/
4. http://www.sochealth.co.uk/2013/11/24/fears-smears/
5. http://www.sochealth.co.uk/2013/09/29/wont-bbc-cover-nhs299-hardworking-people-today-manchester/
6. http://www.sochealth.co.uk/2013/11/29/nhs-markets-drugs-dont-work/
7. http://www.sochealth.co.uk/2013/10/26/simon-stevens-youve-come-youre-going/
8. http://www.sochealth.co.uk/2013/10/19/whats-best-person-isnt-necessarily-whats-best-hospital/
9. http://www.sochealth.co.uk/2013/11/19/sunlight-disinfectant-nhs/

10. http://www.sochealth.co.uk/2013/11/20/jeremy-hunt-wilful-neglect-mid-staffs/

Positions 11-40

11. http://www.sochealth.co.uk/2013/11/17/andy-burnham-secretary-state-health/

12. http://www.sochealth.co.uk/2013/03/05/is-nicholson-hitting-the-target-but-missing-the-point/

13. http://www.sochealth.co.uk/2013/09/19/like-faulty-house-cards-competition-rationale-health-social-care-fallen-apart/

14. http://www.sochealth.co.uk/2013/03/15/dr-lucy-reynolds-with-a-very-clearly-evidenced-explanation-of-uk-nhs-privatisation/

15. http://www.sochealth.co.uk/2013/10/10/speaking-safely-safe-staffing-important-moral-issues-nhs/

16. http://www.sochealth.co.uk/2013/04/25/shami-chakrabarti-director-of-liberty-goes-public-in-her-very-strong-criticism-of-breaches-of-confidentiality-in-the-nhs/

17. http://www.sochealth.co.uk/2013/10/27/speaking-safely-public-interest-disclosure-act-1998-work/

18. http://www.sochealth.co.uk/2013/08/24/nhs-prime-contractor-model-legal-liability-subcontractors-matters/

19. http://www.sochealth.co.uk/2013/09/29/lets-clear-conservative-position-nhs-shall/

20. http://www.sochealth.co.uk/2013/11/08/court-appeal-decision-reconfiguration-tsa-process-kendall-reed/

21. http://www.sochealth.co.uk/2013/12/04/autumn-statement-2013-socialist-health-association/

22. http://www.sochealth.co.uk/2013/09/29/labours-twitter-messaging-nhs299/

23. http://www.sochealth.co.uk/2013/11/14/keogh-outsourcing-privatisation-nhs/

24. http://www.sochealth.co.uk/2013/01/07/competition-regulations-issued-under-section-75-of-the-health-and-social-care-act-2012-will-lock-ccgs-into-arranging-all-purchasing-through-competitive-markets/

25. http://www.sochealth.co.uk/2013/12/01/whole-person-care-step-closer-tony-benns-hope-national-care-service/

26. http://www.sochealth.co.uk/2013/10/14/work-burnham-kendall-will-futile-reeves-carries-like/

27. http://www.sochealth.co.uk/2013/10/27/like-nick-clegg-taught-unqualified-teachers-school-hypocrisy-stinks/

28. http://www.sochealth.co.uk/2013/10/09/sir-malcolm-grants-new-idea-short-medical-course-beneficial-disruption-race-bottom/

29. http://www.sochealth.co.uk/2013/09/28/e-cigarettes-available-nhs/

30. http://www.sochealth.co.uk/2013/10/30/car-crash-interview-sir-thomas-hughes-hallett-trustee-kings-fund/

31. http://www.sochealth.co.uk/2013/01/03/the-privatisation-of-the-nhs-appears-to-be-going-to-plan/

32. http://www.sochealth.co.uk/2013/11/05/matthew-d-ancona-coalition-nhs-review/

33. http://www.sochealth.co.uk/2013/10/02/camerons-nhs-cons13-land-opportunity-entirely-problem/

34. http://www.sochealth.co.uk/2013/08/31/lessons-need-learnt-nhs-failure-competition-imperfect-markets/

35. http://www.sochealth.co.uk/2013/10/04/battle-private-income-cap-battle-labour-wishes-win/

36. http://www.sochealth.co.uk/2013/11/12/structural-disorganisation-reversed-parts-nhs-culture-must-change/

37. http://www.sochealth.co.uk/2013/11/15/many-people-warning-competition-nhs-long-polly-toynbee-example/

38. http://www.sochealth.co.uk/2013/10/06/country-hard-working-people-hard-working-nurses/

39. http://www.sochealth.co.uk/2013/09/14/war-jarmans-data/

40. http://www.sochealth.co.uk/2013/08/26/fairly-standard-hate-campaign-labour-andy-burnham-nhs-went-badly-wrong/

 

@legalaware

Should you pay your taxes to fund corporate welfare?

Far from reforming the NHS with a view to improving patient safety, the 493 pages of the Health and Social Care Act (2012) and the concomitant £3bn implementation produces the mechanism for awarding ‘NHS contracts’ to the private sector – an extension of corporate welfare.

These private companies carry out NHS functions using a NHS logo, so as far as the ‘end user’ is concerned (formerly called ‘the patient’), the service is being run by the NHS.

This is sold as the private company running the service more efficiently,except somehow this square peg has to fit into the round hole of the fact that the private company has to provide the service at an acceptable level of profit to them. Invariably, they are awarded the contract because they are slick at making pitches.

One of the challenges for the new incoming Labour government will be getting rid of compulsory competitive tendering.

But a difficulty that the incoming government will face is not depriving all those hard-working corporate lawyers from lucrative competition and procurement law work, at a time when their revenues had been soaring and high street firms had been closing down by the day.

Another desirable move would be to ensure that contracts, awarded for ‘best value’, have some sort of ongoing performance management mechanism built in. This is because increasingly contracts of the ‘prime contractor’ variety, where various component contracts are subcontracted out, will be of a long duration. We already know from experience with various private outsourcing contracts that some companies are facing or have faced criminal investigations for fraud.

Some other companies have been directly criticised by MPs for unacceptable performance, such as the handling of welfare benefits.

One of the Dragons in Dragons Den advised in his audiobook that a good business model for ‘sustainability’ makes use of Government grants.

It follows as night follows day that all governments want to offer you low taxes. For example, a homeowner in Sussex with rising property prices with lower taxes might wish to vote Tory. Sod the food banks.

But an interesting situation is now developing where taxes are being used act as corporate welfare handouts for companies awarded outsourcing contracts in the NHS.

In this construct, working for the NHS is seen as inferior, wages in working for the NHS are lower, and there’s no pride for working for the NHS brand. But this is all sold weirdly as an ‘equality of opportunity’ to suit a competitive capitalist market.

And who would dare to rubbish the NHS brand? Let me think.

Before you attack benefit scroungers, time to think where your taxes from all your hard work are in fact going.

The solution to the current malaise is not more extreme social democracy

There’s an argument from some that more trenchant tax rises, such as VAT or income tax, and ‘getting more from less’, will be enough to see through an incoming Labour government led by Ed Miliband.

Put quite simply, I don’t think this will be nearly enough. It would the best Labour could come to retoxifying its own brand, reestablishing its credentials as a ‘tax and spend’ government. In fact, for the last two decades, the taxation debate has got much more complicated due to an issue nobody wishes to admit. That is: you’re not actually using taxpayers’ money to go into the salaries or wages of employees of the State, you’re increasingly using this tax to subsidise the shareholder dividends of directors of outsourced public functions (such as beneficiaries of health procurement contracts). Whether you like it or hate it, and let’s face it most people are ambivalent to it, resorting to this would ignore all the groundwork the Miliband team has done on “pre-distribution”. Forgetting this actual word for the moment, making the economy work properly for the less well-off members of society should be an explicable aim of government on the doorstep. Putting the brakes on the shock of energy bills, from fatcat companies, is a reasonable self-defence against an overly aggressive market which has swung too far in much favour of the shareholder and director. Paying people a living wage so that they’re not so dependent on State top-ups to survive is as close as you can get to motherhood and apple pie. Even Boris Johnson supports it.

Of course, Ed Miliband’s natural reaction as a social democrat would be try and survive government as a social democrat. But that doesn’t get round the problem experienced by a predecessor of his, Tony Blair. When Tony Blair had his first meeting with Robin Butler (now Lord Butler of Brockwell), Butler asked, “I’ve read your manifesto, but now what?” Ed Miliband has low hanging fruit to go better than Tony Blair on his first day in office if he can come up with clear plans for office and government.

Let’s get something straight. I don’t agree that the scenario which must be proven otherwise is that Ed Miliband will come into Downing Street only enabled by Liberal Democrat voters. There are plenty of former Liberal Democrat voters who feel deeply disgusted by Nick Clegg not acting as the ‘brake’ to this government, but as the ‘accelerator pedal’. They have seen Clegg’s new model army vote for tuition fees, privatisation of the NHS, and welfare reforms, as if there is no tomorrow. And for many of his MPs, there will be no tomorrow. Clegg’s operating model of supplying votes for whichever party happens to be his employer is clearly unsustainable, as within two periods of office, his flexible corpus of MPs would end up repealing legislation that they helped to introduce to the statute books.

In answer to the question, “What do we do now?”, Ed Miliband does not need to reply with a critique of capitalism. Miliband will have to produce a timeline for actions which he has long promised, such as implementation of a national living wage, controlling seemingly inexorable increases in energy bills, as well as other ‘goodies’ such as repealing of the Health and Social Care Act (2012).

Andy Burnham MP, Shadow Secretary of State for Health, has already explained some of the ‘and then what’. Burnham has insisted that he will make existing structures ‘do different things’. But while getting rid of compulsory competitive tendering, Burnham needs to put ‘meat on the bones’ on how he intends to make the NHS work without it being a quasimarket. Burnham’s challenges are not trivial. Burnham seemingly wishes to maintain a system of commissioning, while intending to abolish the purchaser-provider split. Burnham also seemingly wishes to support local A&E departments in not being shut down, but has as not yet stated clearly what he thinks will work better than the current amendment of the Care Bill going through parliament for NHS reconfigurations. Furthermore, Burnham in advancing ‘whole person care’, in sticking to his stated unified budgets, may have to resist seeing the merging of the non-means tested NHS being merged with the means-tested social care. This might easily lead to ‘mission creep’ with merging with welfare budgets. And this brings up a whole new issue in ‘integrated care’ which Burnham has long denied has been on the agenda: “top up payments” or “copayments”. Reducing health inequalities by tackling inequalities social determinants of health should of course be well within the grasp of a socialist-facing NHS delivered by Labour. With patient safety also, correctly, a top priority for the National Health Service, especially for how frail individuals received medical care in hospitals, Burnham has in fact five timelines to develop fast as top priorities: addressing the social determinants of health inequalities (even perhaps poor housing), commissioning anomalies, reconfiguration tensions, whole person care implementation, and patient safety.

The global financial crash should have given some impetus to the Marxist critique of capitalism, but it didn’t. Tony Benn said famously that, when he asked to think of an example of ‘market forces’, he would think of a homeless person sleeping in a cardboard box underneath Waterloo Bridge. Benn further pointed out that the NHS was borne out of war, where normal rules on spending went out of the window: “have you ever heard of a General saying he can’t bomb Baghdad as he’s overrun as his budget?” However, it was not the global financial crash which caused there to be far too many people who feel disenfranchised from politics. Capitalism always drives towards inequality. It also drives towards economic and political power being rested at the top. The reason why people are well off tell you it’s important to do more with less is that they have a fundamental poverty of aspiration about this country. They don’t particularly care as the most well off are getting even more well off. This is an economic recovery for the few. The economy is not going to grow on the back of a record people with zilch employment rights under “zero hours contracts”. The economy is not going to grow either on the back of a property-boom based in London, even if a sufficiently large number vote Conservative as a result of a bounce in their property prices.

What there is a risk of, however, is socialism being popular, and this of course goes beyond the follower number of a few certain individuals on Twitter. Across a number of decades, particularly in Sweden and Cuba, we’ve been able to learn good lessons about what has happened in the worlds of communism and social democracy, as a counterpoint to capitalism. Tony Benn, when asked to give an example of ‘market forces’, would always cite the person sleeping rough under Waterloo Bridge. The Labour Party, most recently, in large part to Tony Blair being ideologically being ‘of no fixed abode’, has run away from socialism, meaning narratives such as Jackie Ashley’s recent piece are consciously limp and anaemic, a self-fulfilling prophecy of utmost disappointment. There is no sense of equality, cooperation or solidarity, and these ought to be traits which are found to be at the heart of Labour’s policy. If Ed Miliband hasn’t thought of how the answer to ‘Now what?’ fulfils those aims, it’s time he had started thinking about. With this, he can not only build a political party, but build a mass movement. With people choosing to become members of unions, and there is no better time with such a naked onslaught on employment rights, the Labour movement could become highly relevant, not just to very poor working men. Labour has to move with the times too; it needs to move away from reactionary ‘identity politics’, and seek to include people it hasn’t traditionally engaged in a narrative with. This might include the large army of citizens who happen to be disabled or elderly. There is no doubt that a socialist society needs the economy to succeed; if it is really true that the UK sets to be in a dominant position in Europe by 2030, surely the media should be helping the UK perform a positive rôle as a leader. The economy involves real people, their wages, their energy bills, their employment rights, so while it is all very easy to be po-faced about “the cost of living”, or have foodbanks in your line of blindsight, Labour needs to be a fighting force for many more people who otherwise don’t feel ‘part of it’. It should be the case that a vote should buy you influence in shaping society, in as much as the way to buy influence, say in the NHS, is to become a Director of a private health multinational company. This fight against how capitalism has failed can indeed become the alternative to commercial and trade globalisation; a peaceful transition into this type of society is one which the more advanced economies like ours is more than capable of.

Where Labour has thus far been quite successful in trying to make its policies look acceptable to the wider public is courting the opposition. Many would say they have taken this too far. Labour might wish to ‘look tough on welfare’, but Labour can easily advocate employed work being paid for fairly, while being fiercely proud of a social security system which looks after the living and mobility needs of people who are disabled. A radical look at ‘working tax credits’ is possibly long overdue, but Labour will need to get out of its obsession for triangulation to do that. If Labour merely offers a ‘lighter blue’ version of the Conservatives, members of the public will be unimpressed, and boot Labour out asap. Whilst Wilson and Blair both won a number of periods of government, the jury is out especially with what Blair achieved in reality aside from the national minimum wage (which was only achieved with the help of the unions). Many people feel that privatisation was a continuous narrative under Labour as it had been for the Conservatives, and many Labour voters feel intrinsically disgusted at the thought of Tony Blair being Margaret Thatcher’s greatest achievement. People instead of being liberalised by markets have now become enslaved by them. Across a number of sectors, there are only a handful of competitors who are able to rig the prices lawfully between them. The consumer always loses out, and the shareholders with minimal risk receive record profits year-on-year. Of course, rejection of privatisation does not necessarily mean nationalisation, in the same way that decriminalisation of illegal drugs does not necessarily mean legalisation. But it cannot be ignored that some degree of State ownership is a hugely popular idea, such as for the NHS, Royal Mail and banks. Where Ed Miliband might be constructively compared to Fidel Castro (in the days when things were going well for Castro) is that Miliband can set out a vision for a sufficient long period of time for people to become attracted to it (not disenfranchised by it). Thatcher, for all her numerous faults, was very clear about what she intended to achieve. As Tony Benn put it, she was not a “weather vane” but a “weather cock which is set in a direction… it just happened that I totally disagreed with the direction which she set.”

I think Ed Miliband will surprise people, exactly as he has done so far, in winning the general election on May 8th 2015. I also feel that he will surprise people by having answers to the “And then what?” bit too.

Merry Catmas!

Are Andy Burnham and Alan Milburn ‘in it together’?

When people come to vote for Labour on May 7th 2015, they’ll possibly be thinking of getting rid of this current government. There are various factors which might be important such as ‘the cost of living crisis’, but it’s quite possible there could be a strong anti-privatisation of the NHS contingent.

Tony Benn was last in office in the Department for Trade in 1979, and strictly speaking another Tony, Tony Blair, was the first elected Labour Prime Minister in the UK since October 1974. Benn does raise an interesting hypothesis of how people vote, in his latest (and last) set of diaries entitled, “An autumn blaze of sunshine”. He feels that people vote Labour when they get fed up of the Tories, to feel ‘less bad’ about voting for Tory policies; and after a while, they revert back to the Conservative Party. Benn’s thesis is that the two main parties are now essentially in the same. And to give him credit, Benn forecast the current Coalition long before it happened. Whilst generally quite critical of Gordon Brown and Tony Blair, there was a glimmer of optimism towards the end.

In a passage where Tony Benn is talking about the public opinion turning against railway privatisation (signposted by how Mandelson had to postponing the privatisation of the post office and pull out of a rail franchise):

“I can see a possibility Labour might win… Public opinion is very volatile… Cameron and Clegg are so ineffective… But when I look at people like John Reid and Patricia Hewitt and others, who held offices in government, and who are now working in companies engaged in government contracts and privatisation, it’s very revolting.”

(Tony Benn, “An autumn blaze of sunshine”)

It’s possible that the differences in approach of two former Secretaries of State for Health for Labour, Alan Milburn and Andy Burnham MP, have been exaggerated. However, it is still easy to underestimate how Burnham’s ‘NHS preferred provider’ places a wedge between him and Milburn, although the general assumption of the market may still be in place due to globalisation and the US-EU free trade treaty. It is likely that the two personalities largely agree on the ‘efficiency savings’, all but cuts in name. But certainly who wins out on the ‘NHS preferred provider’ could be symptomatic of what sort of Labour Party Ed Miliband wishes to lead. Tony Blair was generally considered to have brought Labour much more to the Thatcherite fold on the importance of the market compared to the State.

Ed Miliband, whose mother is well known to be good friends with Tony Benn, thus far has indicated that he wishes to challenge the Hayekian notion of the market being ‘liberalising’. Miliband in his first conference speech which was virtually ubiquitously panned also criticised ‘predators‘, presumably an attack on ‘quick buck’ hedge funds which are known to have lobbied aggressively for the Health and Social Care Act (2012). Miliband likewise in ‘One Nation’ has purported not to give any one ‘vested interest’ undue prominence, but this could mean restoring some value for workers including nurses which form the “backbone” of the NHS. Burnham, to give him credit, has argued that he wishes to move towards a society where carers are valued, rather than promoting the shareholder dividend of the directors of the large corporations than can provide them. You can probably run the NHS without hedge funds (though hedge funds will wish to argue that they play a critical rôle in the ‘sustainability’ of the NHS), but it would be impossible to run the NHS without nurses (whether unionised or not.)

In the 2010/11 Operating Framework, Andy Burnham said that the NHS would have to make the £15-20bn “efficiency savings” over four years. These efficiency savings had been previously identified by McKinsey. When Lansley took over the NHS the “efficiency savings” became £20bn over five years (or £4bn a year for each of the five years).  We happen to know that attempts by government to make “efficiency savings” have always failed to hit their target.

Nick Timmins in October 2009 wrote an article in the BMJ which could turn out to be quite important in the months ahead for Labour.  This was when Andy Burnham proposed that NHS organisations would now be the “preferred provider” of NHS care. Significantly the announcement was welcomed by the health service unions, including Unison, the BMA, and the Royal College of Nursing, in fact generally the same parties which were about to be disenfranchised in the discussions over the Health and Social Care Bill (2011), aka the Lansley Vanity Project (2011). However, it had produced a rather different reaction among private providers of NHS care, whose representatives included the “NHS Partners Network”, described it as “completely irresponsible.”

Burnham’s initial announcement about the “preferred provider” policy came in a speech in 2009 to the healthcare think tank the King’s Fund but fuller details were subsequently out in a letter to Brendan Barber, the then general secretary of the Trades Union Congress. According to the preferred provider guidance, NHS organisations must be given “at least two” formal chances to improve where they are underperforming. Even then, alternative providers should be considered only where the continuing underperformance is “significant.” Where incremental improvements in services are sought, existing staff should be given “at least two” chances to provide an acceptable service plan before any move to put the service out to alternative providers. Even then, clinical or safety issues may warrant an “NHS only” tender. It was hypothesised that staff and existing organisations should be engaged early and should help to design any new or important change of service. The BMA said the change was “a very positive sign” that the government was listening to its concerns about the increasing commercialisation of the NHS. Unison welcomed it as “a significant policy shift”.

Alan Milburn, the former Labour health secretary who introduced independent sector treatment centres and patient choice in the NHS, said, “This is a retrograde step. If you are going to drive productivity and quality on the scale required [given the financial challenge the NHS is about to face], the last thing you do is renew a monopoly and say your existing provider is your preferred one.” He said that the NHS needed “not less competition but more” and that the move signalled that Labour was going soft on NHS reform. And we all know what happened next, with the Government throwing in section 75, the vehicle for outsourcing NHS services, into the mix like a policy hand grenade. He warned that failing to accelerate the pace of NHS reform will put frontline services at risk.

Milburn is of course one of the grand architects of the 2000 NHS Plan, under which private sector providers were welcomed, calling for state control over the NHS to be reined in. He said: “The NHS is in transition between a 20th century model of state control and monopoly provision and…a different model where the citizen has more control. The policy question is whether that journey is going to be finished or truncated. We have to take it to its final destination.” Wind the clock on a few years,  Simon Stevens, a one-time Blairite health advisor and co-architect of this plan, was announced as the new chief executive of NHS England. He himself advised Milburn before leaving England to join US healthcare giant UnitedHealth.

Milburn in December 2011 said “it was depressing to hear Labour people defining themselves not against the government but the previous Labour government“. Speaking to the pro-market thinkthank Reform, Milburn called for “more competition and new entrants into the NHS” and said the two shadow health spokesman since the election defeat – John Healey and Burnham – were making a “fundamental political misjudgement” by attempting to roll back Labour’s previous policy on the NHS.

And it’s impossible to fail to be touched by the hand of the multinational corporations upon us (perhaps.) Earlier last century, amidst an equally disastrous global financial crash, Britain itself followed the depreciation of sterling with higher tariffs. In November 1931, it enacted an Abnormal Importation Duties Act which gave the authorities discretion to impose higher duties on selected goods. In February 1932, Parliament passed the Import Duties Act imposing a 10 percent across-the-board tariff on imports, with additional restrictions on certain imports and exemptions for imports from the empire.

Seventy years later, the collapse of world trade in 2009 was  associated with significant part to a sharp fall in consumer confidence in most western economies. In previous economic downturns, most notably the 1930s Depression, a fall in the level of trade was also related to the use of import tariffs and quotas by many countries. In a situation where the economy remains depressed for a period of time, governments feel that they need to make sure that whatever consumer spending there is goes on domestically produced goods. Several recent reports have however pointed to rise in the use of measures such as import tariffs, exchange controls and import licenses by major trading blocs. Economic history overall perhaps suggests that wholesale recourse to tariffs and quotas is likely to prolong the world economic downturn, however, so while such measures might be politically popular at home, they are unlikely to make much of a positive contribution to economic growth. Labour currently seem to wish to change the narrative away from the macroeconomic issue of growth per se, but for many people the cost of living is the totemic issue of the cost of living, and indeed the economy. And it’s possible that other factors, such as the ‘right’ of the Tory Party and UKIP might be the anti-immigration force leading domestic politics (while Labour wishes to appear to strong on the abuse of multinational-corporations of workers below the national living wage to be enacted.)

Quite on the sly, with all the broohaha about privatisation of the NHS, the US-EU free trade negotiations appear to have gone relatively unnoticed. Not everyone is convinced of the benefits of free-trade, however. The centre-left think-tank, Compass, had argued that the fundamental cause of most of the economic ills in the UK, such as the much discussed squeezed-middle, is in fact globalisation. Although the argument that free-trade increases the overall value of economic output is convincing, economic evidence has revealed relatively little about how the gains from trade are distributed (to governments, corporations, and households, for example). Many economists have argued that globalisation has reduced the demand for labour and wages in in the UK and US, particularly for workers with less specialised skills. This might be directly through immigration or indirectly through trade and capital mobility.

A US/EU Free Trade Agreement, as publicly announced, will “dismantle hurdles to trade in goods, services and investment” and “make regulations and standards compatible on both sides”. The agreement is meant to give transnational corporations a level playing field, both in the trade of goods and in the provision of services. Rules must be the same for everyone, to avoid any extra cost or “import tax” for foreign providers. If a corporation thinks that a government or body is limiting their ability to profit, it can take legal action against them. The idea that the Health and Social Care Act (2012) was developed to allow foreign transnational corporations to profit from NHS privatisation is pretty unpalatable for some; but for others it reinforces the idea that ‘I don’t care who provides high quality care as long as it’s free at the point of need‘. Non-socialists argue that the State should not necessarily have a monopoly on NHS services; socialists will argue that leaving it to a market can only encourage cherrypicking and accelerated rationing, totally defeating the purpose of the NHS as comprehensive and universal.

Earlier this month, it was reported that New Labour “grandees” Alastair Campbell and Alan Milburn, as well as a batch of other advisers from the Blair and Brown eras, were to make a dramatic return to Ed Miliband’s general election team, according to a top-secret memo obtained by the Observer. The document – Proposed General Election 2015 Meeting Structure – drawn up in the office of Douglas Alexander, chair of campaign strategy, will infuriate many on the party’s left, who believed that Miliband had moved on from New Labour’s approaches to campaigning and policy.

It is of course perfectly possible that neither Alan Milburn nor Andy Burnham wish to have a big “bust up” over future Labour policy, arguing that there is much more in common between them. Andy Burnham clearly wants to get on with ‘whole person care’, bringing social care up to standard of what he considers to be reasonable for a social care service. Governments of whatever colour will have to implement coherent policies on patient safety, workforce performance management, financial budgeting and dynamic reconfiguration of primary and secondary care. It’s going to be a tough ask to require Alan Milburn and Andy Burnham to match the titanic reputations of Stafford Cripps, Aneurin Bevan, Clem Attlee and Tony Benn, but they’re going to have to have a go at the very least.

Why do we need a corporate version of wilful neglect?

There’s been a feeling for some time that there are various lacunae or blind spots in the law when it actually comes to bringing a prosecution for failings in NHS trusts and social care institutions. For example, Will Powell has been campaigning for a long time for a duty for candour, where it would be simply unacceptable for healthcare professionals and entities to cover up mistakes legitimately. It may be that statutory instruments of the statute law need to be beefed up, given the well publicised problems in effective sanctions from the GMC and the NMC?

In amidst the complicated debate about the Care Bill on Monday, Labour MP Nick Smith (Blaenau Gwent) suddenly produced the following:

“I congratulate my Gwent colleague, Lord Touhig, who tabled an amendment to the Bill in the House of Lords to introduce the offence of corporate neglect. If we do not get what is needed this time, I would like to table an amendment on the same topic in this House. I hope that following the welcome consultation on strengthening corporate accountability in health and social care that the Minister mentioned, the Government will now make our law fit for purpose.”

Winterbourne View was a shocking example of what happens when people with learning disabilities are failed by bad management and poor care. With the intention of having more private providers in delivering your health and social care, the issue of who exactly is regulating companies has become as important as who is important in regulating individuals.  There is already law on corporate manslaughter. There is an arguable case for extending the scope of corporate accountability to wilful neglect so there is accountability when care goes drastically wrong.

The rising number of elderly people, some of whom need residential care, has led to significant private equity investment in the social care market. In a much criticised speech on ‘predators’, Ed Miliband MP criticised the ‘quick buck’ society. Tony Blair has been both praised and maligned for his framing of his debate about society v market, and therefore as Ed Miliband wishes to curb unfettered market power, the issue of more appropriate regulation and corporate accountability in the healthcare sector has become pertinent. Many have been troubled by the billion-pound collapse of Southern Cross Healthcare, whose quick-buck business model caved in when the global recession arrived. The media have now reported that care providers NHP and HC-One are expected to be put up for sale soon with US private equity interest.

After the abuse at Winterbourne came to light, the CQC conducted an investigation into all 23 of the care homes Castlebeck Ltd ran. Out of these homes, 11 were not compliant with the minimum standards and four of these were deemed to be of “serious concern”. Many have since argued that the enforcement powers of the CQC are not an effective deterrent to bad care standards, and the CQC themselves (and their allies) have argued that the CQC have entered a new era. This view is further reflected in a statement from the Department of Health themselves, in their final response report to the events at Winterbourne View– where it stated that the CQC “has not always held organisations to account at a corporate level.”

There are of course many different factors that can culminate in institutional abuse such as failings in relation to staff recruitment, training, supervision and ineffective management are important contributory factors to situations of institutional abuse. There’s now a growing sense that we must improve the statutory law on wilful neglect, and I previously argued the actual legal problems with implementing section 44 of the Mental Capacity Act and the new proposed offence. If a patient does not die from poor care and does not have a loss of capacity under the Mental Capacity Act 2005, guidance from the Crown Prosecution Service had stated that a criminal offence is difficult to identify. Given that, respected groups such as Age UK support the proposal that organisations—not just employees—found to have contributed to abuse or neglect in a care setting should be liable to criminal prosecution.

It is argued that corporations who by their actions facilitate abuse or neglect in care institutions must be held criminally accountable. Some of the most comprehensive protections in place for vulnerable adults can be found in Canada where, like America, much of the legislation is created at a Federal level. Section 20.1 of the Vulnerable Persons Living with a Mental Disability Act 199348 (Manitoba State) makes it an offence for anyone to abuse or neglect a vulnerable person and section 20.2 states that service providers have a duty to protect vulnerable adults. A person in contravention of this under section 164 of this act is guilty of an offence and can be jailed for up to two years and/or fined up to $50,00049.

If we are to hold corporations to account for neglect or abuse that occurs in their care homes, it falls on us to look at current corporate law and how this could apply. Perhaps the most relevant piece of legislation is to be found under s.1 of the Corporate Manslaughter and Corporate Homicide Act 2007, which states that an organisation can be found guilty of manslaughter or homicide if in the way that they are run, managed or organised by its senior management, there is a substantial element of the death in question. The Act has seen very few successful prosecutions so far – for example, against Cotswold Geotechnical Holdings, Lion Steel Ltd and JMW Farms Ltd in Northern Ireland. In the Sentencing Guidance Council guidelines for this offence, it states that in a successful prosecution the fine should be proportionate to the size of the company and the offence in question; whilst the HSE clarifies that a successful prosecution will include unlimited fines, remedial orders and publicity orders.

Therefore, a valid approach might be that Health and Social Care Act 2008 could be amended to include a new section under Part 1, Chapter 3, the Quality of Health and Social Care entitled Corporate Neglect, whereby:

“A corporate body delivering services covered by sections 8 and 9 of the Act are guilty of an offence if the way in which its activities are managed or organised by its board or senior management neglects or is a substantial element in the existence and or possibility of abuse or neglect occurring.”

While it would be unwise to say that a change in law would ensure we never saw a Winterbourne View again, it could precipitate an important cultural change which has to be considered in a private company’s business plan. It would be a powerful signal from any Government that senior ministers are concerned about this societal issue.

An entire Bill could be introduced to parliament to hold corporations criminally accountable for abuse and neglect in care settings; to make provision to compel any person or organisation to supply information to Adult Safeguarding Boards; and this could introduce a new offence of corporate neglect whereby a corporate body can be found guilty if the way in which its activities are managed or organised by its board or senior management is a substantial element in the existence or possible occurrence of abuse or neglect.

Finally, crucially, such a new law would powerfully act as a deterrent (and this depends on the practicalities of its implementation and sentencing guidelines.) It would force weak boards of directors to have clinical and corporate governance mechanisms ‘fit for purpose’, and force them to listen to the people who use their services, including the families of those whom they are caring for.

“The latest stage of the Secretary of State’s political smear campaign”

Yesterday’s exchanges were particularly acrimonious between Andy Burnham MP, Shadow Secretary of State for Health, and Mr Jeremy Hunt. Here’s one short excerpt reported in Hansard:

“Andy Burnham rose—

Mr Hunt: No, I am going to make some progress. Today he had a chance to show that he had learned how wrong—

Andy Burnham: On a point of order, Mr Speaker. Is it in order for the Secretary of State to misrepresent the views of the previous Government and previous Ministers, and refuse to take interventions? He has just said that I refused to change and strengthen the regulation system of hospitals in England—that is factually incorrect. I brought forward a new system for the registration of all hospitals in England in autumn 2009, on the back of recommendations from the CQC. Again, he should get his facts straight at that Dispatch Box.”

However, it had started badly,

“Andy Burnham: How can it be appropriate to introduce a debate on such fundamentally important issues as the way we care for older people with such narrow, petty, partisan, point scoring efforts?“

Burnham then got totally exasperated.

“Andy Burnham:The Bill began as a response to the Dilnot report and a reform of social care, but has since taken in major new measures on the NHS. It deals with issues that matter greatly to millions—issues to which that very thin speech we have just heard did not do justice. Worse, it was an inappropriate attempt to turn an occasion such as this into the latest stage of the Secretary of State’s political smear campaign. I refuse to sink to his level, and instead will deal with the important issues before the House today. For clarity, I will take the issues separately—social care, then health…”

Why yesterday’s Care Bill debate matters to tomorrow’s decision about Mid Staffs

s. 118 is the contentious clause of the Care Bill.

An important question is of course whether the Labour Party, if they were to come into government in 2015, would seek to repeal this clause if enacted. The likelihood is yes. What to do about reconfigurations and reconsultations for NHS entities which are not clinically or financially viable is a practical problem facing all political parties. A practical difficulty which will be faced by all people involved in the TSA process between now and 2015 is that it is relatively unclear what Labour’s exact legislative stance on the future structural reorganisation of the NHS is, save for, for example, having strongly opposed the recent decisions over Lewisham (prior to the High Court and Court of Appeal.)

Draft recommendations for the future of Mid Staffordshire NHS Foundation Trust were published on Wednesday 31 July 2013 by the Joint Trust Special Administrators. Tomorrow will see the publication of the final proposals (and it is widely expected that interested parties will be informed about the outcome of the consultation process this evening.) Producing a long-term outlook for key services, including paediatrics, ICU and maternity, is going to have been a complicated decision-making process for all involved.

Stephen Dorrell MP, Chairman of the influential Health Select Committee, pointed out in the Care Bill debate yesterday afternoon that the competition debate about the NHS is usually presented as ‘binary’, and this is to some extent reflected in John Appleby’s famous piece for the King’s Fund on how there are both advantages and disadvantages of competition. What people agree on more or less is the need to move beyond fragmented care to an integrated approach in which patients receive high-quality co-ordinated services. The idea is that competition itself need not be a barrier to collaboration provided that the risks of the wrong kind of competition are addressed. This will involve considerable legislative manoeuvring in the future. In securing a more integrated approach, reflected also in Labour’s “whole person care” ultimately, commissioners are expected not be able to fund ever-increasing levels of hospital activity.

Trying to keep frail older people away from hospital, and to allow such individuals to live independently, has become an important policy goal. Trying to keep people in hospital for shorter stays is another key aspiration. Matching services to actual demand is a worthy aspect of any reconfiguration (and also providing the full range of relatively unprofitable emergency services locally.) All of these factors become especially important with the increasing numbers of older people in the population, some of whom have multiple and complex chronic conditions that require the expertise of GPs and a range of specialists and their team. “Integrated delivery systems” in other countries have previously embraced a model of multi-specialty medical practice in which GPs work alongside specialists, often in the same facilities. It is possible that this sort of approach will become more popular in future here in the UK. It is relevant to the NHS here, because of the need for specialists and GPs to work together much more closely to help patients remain independent for as long as possible and to reduce avoidable hospital admissions.

A frequent criticism has been that ‘competition lawyers should not be blocking decisions which are in the patients’ interest‘. The problem with this argument is that simple mergers may not actually be in the patients’ interest. While mergers to create organisations that take full responsibility for commissioning and providing services for the populations they serve have been pursued in Scotland and Wales, the benefits of this kind of organisational integration remain a matter of dispute.

It’s been mooted that stroke care in London and Manchester has been improved by planning the provision of these services across networks linking hospitals. They are reported ass “success stories”. For example, Manchester uses an integrated hub-and-spoke model that provides one comprehensive, two primary and six district stroke centres. Results include increasing the number of eligible patients receiving thrombolysis within the metropolitan area from 10 to 69 between 2006 and 2009.

The decision over the future of services in Staffordshire allows to put to the test the idea that health care teams can develop a relationship over time with a ‘registered’ population or local community. They can therefore target individuals who would most benefit from a more co-ordinated approach to the management of their care. For example, a “frail elderly assessment service” might well to act as a one-stop assessment for older people and take referrals from a wide range of sources to better meet the needs of the frail elderly. The ‘new look’ services in Mid Staffs could become a ‘test bed’ for seeing how information technology (IT) could be best used. IT could, in this way, support the delivery of integrated care, especially via the electronic medical record and the use of clinical decision support systems, and through the ability to identify and target ‘at risk’ patients

A clinician–management partnership that links the clinical skills of health care professionals with the organisational skills of executives, sometimes bringing together the skills of purchasers and providers ‘under one roof’, might become more likely in future. This might be particularly important for ensuring that patient safety targets are actually met in clinical governance, and corrective action can be initiated if at any stage deemed necessary. The engagement of actual patients would be very much in keeping with Berwick’s open organisational learning culture. Of course the Care Bill cannot set top-down commands for organisational culture and leadership. It was interesting though that these were discussed in yesterday’s debate. Effective leadership at all levels will be necessary to focus on continuous quality improvement. A collaborative culture will be needed which emphasises team working and the delivery of highly co-ordinated and patient-centred care.

So the future of Mid Staffs clearly represents an opportunity for the NHS, not a threat; it would be helpful if politicians of all sides could rise to the occasion with maturity and goodwill.