by JohnnyChatterton Sep 7th, 2011
Yesterday morning at 9:31 the Department of Health published a “myth buster” on a government website. It is published below, along with a number of corrections (shown in red).
MYTH: The Health Secretary will wash his hands of the NHS
The Bill does not change the Secretary of State’s duty to promote a comprehensive health service.
This is very carefully worded. It totally avoids addressing one of the main issues with Andrew Lansley’s plans – that the bill would remove the “Duty to Provide” a health service currently contained in s.3(1) and 1(2) of the 2006 Act. Why do you continue to dodge the issue Mr Lansley?
MYTH: Bureaucracy will increase significantly
We are abolishing needless bureaucracy, and our plans will save one third of all administration costs during this Parliament.
The plans may abolish some bureaucracy, but our legal advice warns that the plans have the potential to increase bureaucracy too. See the quote from pages one and two of the executive summary, below:
The procurement regime is a complicated and developing body of rules and case law which gives rise to enforceable rights in the High Court and makes available draconian remedies and penalties for breach of the Regulations. The practical and financial implications of ensuring that goods and services are procured compliantly are considerable. There is a real risk that there will be a deficit of incumbent expertise in new consortia to cope with the regulatory burden. It appears however that the government has simply failed to grapple with the frontline issues in procurement, has wholly underestimated the increasing rather than diminishing complexity in the area and has had no or perhaps little regard to the administrative and financial burdens arising from the regime.
Taken from: IN THE MATTER OF THE HEALTH AND SOCIAL CARE BILL AND THE APPLICATION OF PROCUREMENT AND COMPETITION LAW – an independent legal opinion provide by Rebecca Haynes of Monkton Chambers.
Will you publish your calculations, Mr Lansley, and include the increased bureaucratic costs and redundancy payments your plans would mean?
MYTH: You are introducing competition in the NHS
Competition will not be pursued as an end in itself. We have said that competition will be used to drive up quality, and not be based on price. Nor will we allow competition to be a barrier to collaboration and integration.
This avoids the question posed, which is what the impact of competition law on the NHS could be. This issue has not yet been tested. In addition, the Government is not able to limit the operation of competition law so cannot promise to ensure collaboration and integration. Our independent legal advice confirms both these points:
As regards the applicability of domestic and European competition law to the NHS, it is likely that, even as matters stand, and in view in particular of recent non-statutory reforms which increase the involvement of the private and third sector in health services provision, competition law already applies to PCTs and NHS providers.
The reforms introduced by the Bill however will serve to reinforce that conclusion and introduce elements which make it even more likely that domestic and European competition law applies to the NHS. There is nothing in the Bill which has or can have the effect of preventing the application of competition law. Nor can the Act preserve the enforcement of competition law to the sectoral regulator, Monitor, since a breach of the prohibitions on anti-competitive conduct gives rises to actionable claims in the High Court by any person affected.
The effect of the application of competition law in the NHS is difficult to predict but potentially brings under scrutiny any collaborative and collective arrangements and the exercise of dominant local purchasing or providing power.
The fact however that the government has amended the Bill to remove from the scope of the duties of Monitor the duty to promote competition as an end in itself is arguably futile since the very fact that domestic and European competition law applies to the NHS arguably itself results in the promotion of competition since that is its aim
Questions for Mr Lansley: What will be the full impact of competition law applying to the NHS?
MYTH: You are privatising the NHS
Claims that we aim to privatise the NHS amount to nothing more than ludicrous scaremongering. We have made it crystal clear, time and again, that we will never, ever, privatise the NHS.
This may depend on your definition of privatisation. Recent reforms, including the latest plans, have opened up the NHS to private providers. It has also been reported that the Department of Health intends to allow private companies to take over NHS hospitals (see here: http://www.guardian.co.uk/society/2011/sep/04/german-company-takeover-nhs-hospitals.
If the government is not planning to transfer any property to private companies then why are there these powers in the bill?
MYTH: Private patients will take priority over other patients
The NHS will always be available to all, free at the point of use and based on need and not the ability to pay. Nothing in our proposals will enable private patients to “leapfrog” to the front of NHS waiting lists.
This fails to mention that the plans remove the “private patient income cap” which means that hospitals will be able to massively expand their care of private patients. It would be helpful if the government could explain exactly how it will be that private patients will not get treated before NHS patients?
MYTH: NHS hospitals will be managed by foreign companies
Even if independent sector management is used, NHS assets will continue to be wholly owned by the NHS. And there would be rigorous checks to ensure that any such independent provider is reputable and fit for purpose.
We note that they are confirming that this is not a myth, it is a fact.
MYTH: The Bill hasn’t had proper scrutiny
The Bill has so far spent longer being scrutinised than any Public Bill between 1997 and 2010 – 40 Committee sittings, and over 100 hours of debate. Even Opposition MPs acknowledged that every inch of the Bill has been looked at.
This is misleading. This bill will bring about the “biggest upheaval in NHS history”* – it is therefore inappropriate to compare it with other bills in the past. There are a wide range of concerns that need to be addressed with the facts – not with comments about how many committee sittings have been held.
MYTH: The NHS doesn’t need to change
The NHS does need to change to meet future challenges of an ageing population and rising costs of treatment. The independent NHS Future Forum confirmed the NHS must change to safeguard it for the future.
The NHS may need to change. But any changes need to be properly tested and well thought through – not rushed through, ignoring the concerns of medical professionals and general public.
MYTH: You are introducing EU competition law in the NHS
The Bill does not change current UK or EU competition legislation or procurement legislation or the areas to which they apply.
It’s ridiculous to claim that a health bill could change EU competition or procurement rules – that would not be possible. The current position on competition law has not been tested. Our advice shows that it may well be the case that competition law already applies. What the bill does is to make it even more likely that competition law applies and the impact of this has not been properly considered. Procurement law will apply to the new consortia, like it applies to PCTs, but the problem here is that there will be many more consortia who are unlikely to have the necessary expertise to handle complex procurement processes.
MYTH: These plans were not in the Coalition Agreement
The Coalition Agreement clearly said doctors, nurses and health professionals will be handed freedom to decide what is right for their patients; that we will establish an independent NHS board; that patients will be in charge over their care; and that we will cut the cost of NHS administration by a third to reinvest into the front line.
That may be true – but what this does not mention is what else the bill contains that is not contained in the agreement.