Background

In July 2011, 38 Degrees members donated to fund independent legal
advice on the implications of the government’s proposals to change
the NHS in England. 38 Degrees engaged Harrison Grant solicitors and
the specialist barristers Stephen Cragg and Rebecca Haynes to give
their legal opinions on two aspects of the Health and Social Care
Bill: The removal of Secretary of State for Health’s Duty to provide
or secure provision of NHS services and the impact
of competition and procurement law on the NHS.

1. Removing the Secretary of
State’s Duty to Provide

What our lawyers have identified
within the Health and Social Care Bill:

The bill will remove the duty of the Secretary of State to provide
or secure the provision of health services which has been a common
and critical feature of all previous NHS legislation since 1946.
This is the means by which Parliament ensures the NHS delivers what
the public want and expect. Furthermore, a “hands-off clause” will
severely curtail the Secretary of State’s ability to influence the delivery of NHS
care to ensure everyone receives the best healthcare possible.

What this could all mean:

No longer a National Health
Service
The duty, that Parliament has given the Health Secretary, for ensuring
that the NHS provides the service that people need will be lost and
the NHS will from here on in simply be little more than a series of
quasi-independent commissioning entities and providers, basically
free to get on with the job

Loss of Accountability – The
Government washes its hands of the NHS
Removing the Secretary of State’s legal duty to provide or secure
provision of health services, and introducing a “hands-off clause”,
significantly reduces democratic accountability for the NHS. The
responsibility for securing the provision of healthcare services
will lie with unelected commissioners who will only be accountable
to an unelected national quango. The bill will make it impossible
for the Secretary of State to direct that certain services are
available and difficult for the Secretary of State to step in if
these groups deliver poor healthcare to the local community. These
changes would shift the main responsibility to unelected officials,
representatives of private companies and GPs.

Loss of Accountability – Local
representatives and health watchdogs lose their right to appeal
Because the Government is removing the Secretary of State’s duty to
ensure the NHS delivers an appropriate service, appeals from locally
elected council bodies and health watchdogs will no longer be
decided by the Secretary of State but – if any rights of appeal
survive – by a national quango.

Postcode lottery
Because of changes in the bill there is a real risk of an increase
in the “postcode lottery” nature of the delivery of some NHS
services. The power to choose what health services are closed or
improved in a local area will be passed on to local unelected bodies
with little scope for the government to intervene. This will mean
patients can no longer expect the government to ensure a consistent
level of healthcare regardless of where they live.

2. Opening the NHS up to
competition law

What our lawyers have identified
within the Health and Social Care Bill:

The Bill contains a number of measures which will increase
competition within the NHS at the expense of collaboration and
integration and/or make it almost inevitable that UK and EU
competition law will apply as if it were a utility like gas or telecoms. This
includes:

• giving Monitor the duty to eliminate so-called
  “anti-competitive” behaviour
• removing the limit on the amount of income NHS hospitals can
  earn from private health services
• handing significant new procurement responsibilities to the
  new Clinical Commissioning Groups
• permitting these new groups to outsource commissioning work
  to private companies
• writing additional rules on competition into the law and
  making Monitor enforce them

What this could all mean:

Exposing the NHS to UK and EU
Competition Law
Taken together, these changes increase the likelihood of NHS
services being found by the courts to fall within the scope of UK
and EU competition law. The likelihood of this is further increased
by other government NHS policies, for example the extension,
announced in July 2011, of the right of Any Qualified Provider to be
given a contract to deliver health services.

Costly and complex procurement
procedures
The new commissioning groups will be subject to EU procurement rules
whenthey commission local health services. This is likely to be
costly, given the likely larger numbers of commissioning groups as
compared to PCTs now and our Counsel warns that it appears the
government have not planned for this significant increase in cost.
Furthermore, it is not clear that the commissioning groups have the
necessary procurement expertise to deal with the complex procurement
process and to avoid legal action from disgruntled private
healthcare providers. This could mean that the NHS ends up spending
a lot of time and money fighting legal action instead of investing
in patient care. Or worse, it could mean they are reluctant to
commission any services for fear of being sued.

Fertile ground for private health
companies (and their lawyers)
Companies that bid unsuccessfully for NHS contracts will be able to
challenge commissioning decisions in the courts. Private health
providers have far more expertise and legal capacity than either
public bodies or charities, and so are likely to be best placed to
exploit these laws. Litigation could be time-consuming and costly
for commissioning bodies.

Opening our NHS to private
companies – privatisation by stealth
These plans will lead to a system geared heavily in favour of
private companies. The legislation does not currently contain
measures to stop:

• private companies being contracted to provide commissioning
  services to consortia and therefore profiting from spending
  multi-million-pound health budgets
• private companies poaching services in a way which undermines
  the ability of the NHS to deliver essential services like
  Intensive Care Units, A&E, emergency cover, teaching,
  training and research.

The Save our NHS Campaign

• In February, 38 Degrees members voted to make saving our NHS a top priority. Together we gathered over 430,000 signatures on the “Save the NHS petition”, raised over £90,000 for newspaper adverts and sent thousands of letter to MPs. On top of that over 150 groups of 38 Degrees members worked together to hand the “Save the NHS” petition to their local MP.
• Then the government announced a ‘listening exercise’ as a result of the public opposition to the plans. 38 Degrees members sent over 27,000 responses. Read more on the blog.
• The government presented a large number of amendments, but no one was clear if they addressed our concerns. We decided to get independent legal advice to see what the changes mean.

Who paid for the lawyers?

• Together several thousand 38 Degrees members contributed over £38,000. The average donation was around £15. Read more here.