The Health and Care Bill is returning to the Lords – as campaigners express concern that non-statutory, public/private bodies will soon have more power when it comes to commissioning healthcare across England

A day of action to fight the Health and Care Bill, which will reach its report stage in the House of Lords on 2 March, is planned by the Unite trade union this weekend.

Declaring the bill the “wrong prescription for the NHS”, the union is targeting voters in former ‘Red Wall’ constituencies that voted Conservative in 2019 General Election. 

The bill has been presented to the public and politicians with positive buzzwords around integration, collaboration and choice. But campaigners warn that the new proposals are a form of privatisation by stealth.

“The bill is a thorough break with the Beveridge model and the Bevan model,” principle research associate at Newcastle University Peter Roderick told Byline Times.

Roderick is the co-author, along with Professor Allyson Pollock, of the NHS Reinstatement Bill.

“It will lead to private companies having a chance to get more involved with the NHS, to services falling out of the NHS and having to be paid for, and to more inequality when it comes to access to treatment for patients,” he said.

Campaigner and retired doctor Alex Scott-Samuel agreed. He told Byline Times that the proposals risk “ending the NHS as designed in 1948”.


Where Will Real Power Lie?

According to Lord Andrew Lansley, Health Secretary when the controversial 2012 Health and Social Care Act was introduced, power in the NHS will soon lie with ‘provider collaboratives’ – non-statutory bodies designed to bring together NHS trusts and foundation trusts to work more closely with each other. 

Lord Lansley told the House of Lords that the bill makes “no provision for them in terms of transparency, openness or accountability”. 

Campaigners have raised concerns that the increased influence of provider collaboratives will mean, for the first time since the creation of the NHS, that the state will continue to fund healthcare in England but largely abstain from being involved in its organisation. Instead, most of the power and decision-making will be handed over to these joint public/private bodies. 

The NHS in England is being organised into 42 integrated care systems (ICS) which are only partially or minimally statutory. Within each system will be new Integrated Care Boards (ICB) – the flagship policy in the bill. ICBs will have statutory footing and be responsible for commissioning most health services in the area they cover. They will be able to delegate their own functions to provider collaboratives, including budget decisions. 

In the Health Services Journal, Alastair McLellan explained how “in the minds of most acute trust chiefs, it is provider collaboratives and groups, and not integrated care boards that will wield the greatest influence” in the new structure. 

“These provider collaboratives are not directly accountable to the public or to the Government,” Roderick told Byline Times. “When, where and how we receive healthcare is therefore going to be at the behest of these entities.”

According to Richard Murray, writing for the Kings Fund, “it would be hard to imagine a less ‘market’-like approach than expecting all NHS providers to come together and co-operate in the new provider collaboratives.”

In the Health Services Journal, chief executive lead for provider collaboration across the north of England, Louise Robson, expressed her belief that “providers are embracing the possibilities afforded by collaboration and are enthusiastic about the opportunity to combine resources where necessary to ensure that services are integrated and we make best possible use of our staff and other assets”.

Three further entities are set to be increasingly involved in healthcare in England: place-based partnerships; primary care networks; and the ‘health system support framework’. The latter is an accredited list of suppliers to the NHS that includes IT companies, consultancy firms and private healthcare providers.

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Where Does Responsibility Lie?

Campaigners have argued that the focus on flexibility in the bill is to distract from the absence of statutory duties that could in turn lead to the dilution of the right to publicly funded healthcare. 

This is particularly prevalent when it comes to ideas about “core responsibility” and who will have it for what patients. 

The 2012 Act created Clinical Commissioning Groups (CCGs), each of which was responsible for commissioning healthcare for people on the lists of the GP practices that belong to that CCG. The people on the lists did not have to be local residents and Parliament determined who CCGs would be responsible for. 

With CCGs now set to be replaced with ICBs, it is up to NHS England, not Parliament, to decide who each ICB will be responsible for. 

“We don’t know how the new allocation of responsibility will be made,” said Roderick. “Because the allocation to the ICBs is going to be decided by NHS England’s rules, for which there will be no Parliamentary process.”

The explanatory notes to the bill state that “it is expected that the basis of NHS England’s general rule for ICB responsibility will continue to be in relation to GP registration to ensure operational continuity”. But an expectation is not a rule.

“It’s too complacent,” said Roderick. “You’ve got to know. You’re passing a law, you’re setting the framework up for it. It is possible that ICBs might be able to challenge allocations and thereby in effect to select patients”. This could lead to some people falling through the cracks, or that new groups of people will be excluded from free NHS care – as certain migrant people currently are. 

Further, the 2012 Act contained a clause that if an individual needed emergency treatment when outside of their CCG area – for example while on holiday in a different part of the country – then they could access that treatment. No such clause is included in the new act. This risks meaning an ICB will not be required to arrange provision of emergency services for a person outside its responsibility, but who happened to get ill or injured in the wrong place at the wrong time. 

In response to this absence, Roderick and Pollock drafted an amendment to be debated at the House of Lords insisting that an ICB has a responsibility to provide emergency treatment to any person present in its area. 


Whose Choice?

All of these changes follow more than a decade of underfunding for the NHS. The annual increases to Government spending on health fell to less than 1% under the Coalition Government, before creeping up to just under 2% before 2019 – compared to 6% annual increases under Labour. 

This lack of funding has led to record waiting lists, which in turn can lead to more people with the means to feel they have little choice but to go private. Some treatments are increasingly rationed, while private healthcare providers are being contracted out to deliver more and more services within the system. 

Campaigners like Alex Scott-Samuel believe the new bill will lead to “more rationing, and care will be a postcode lottery. It will become much harder to see a GP. The NHS will become a kitemark for private providers. These providers will get taxpayer money to deliver procedures, and then that taxpayer money goes to their shareholders, instead of being reinvested in the NHS”.

Speaking of the bill’s proposals, Roderick told Byline Times that “in the end you are going to have more inequality”.

This is in part because while wealthier patients will have the “choice” to go private, those without means will be more and more dependent on decision-making of the provider collaboratives when it comes to access to care. 

Professor Allyson Pollock explained this to the Socialist Health Association earlier this month, using the example of how mental health patients are increasingly being treated out of area. Mental health is a service already working with provider collaboratives.

She said: “If you have a severe acute mental health problem in the UK, and you need hospitalisation, you are not going to ever find a local hospital, you have to go on the provider websites, and they will tell you in which area of the country there are some beds available and people will have to travel. So this isn’t about patient choice, it’s much more about patients having less and less choice.”

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