Health and Social Care Bill 2011

For other bills with similar names, see Health and Social Care Act.

The Health and Social Care Bill 2011 is proposed health care reform legislation introduced in the House of Commons on 19 January 2011.^[1][2] If passed, the Bill would be the most extensive reorganisation of the structure of the National Health Service in England to date.^[3] It proposes to abolish NHS primary care trusts (PCTs) and Strategic Health Authorities (SHAs). Thereafter, £60 to £80 billion of "commissioning", or health care funds, would be transferred from the abolished PCTs to several hundred "clinical commissioning groups", partly run by the general practitioners (GPs) in England.

The proposals are primarily the result of policies of the Coalition Secretary of State for Health, Andrew Lansley. Writing in the BMJ, Clive Peedell (co-chairman of the NHS Consultants' Association and a consultant clinical oncologist) compared the policies with academic analyses of privatisation and found "evidence that privatisation is an inevitable consequence of many of the policies contained in the Health and Social Care Bill."^[4] Lansley says that claims that the government is attempting to privatise the NHS are "ludicrous scaremongering".^[5]

The proposals contained in the Bill are some of the coalition government's most controversial. This is partly because they were not discussed during the 2010 general election campaign and were not contained in the 20 May 2010 Conservative – Liberal Democrat coalition agreement,^[3] which stated that the government would "stop the top-down reorganisations of the NHS that have got in the way of patient care". Within two months of the election a white paper was published, outlining what the Daily Telegraph called the "biggest revolution in the NHS since its foundation".^[6] In April 2011 the government announced a "listening exercise", halting the Bill's legislative progress until after the May local elections. The "listening exercise" finished by the end of that month. The Bill is presently undergoing scrutiny in the House of Lords.

Origins

The bill's proposals were not discussed during the 2010 general election campaign and were not contained in the 20 May 2010 Conservative – Liberal Democrat coalition agreement,^[3] which declared an intention to "stop the top-down reorganisations of the NHS that have got in the way of patient care".^[6] However, within two months a white paper outlined what the Daily Telegraph called the "biggest revolution in the NHS since its foundation".^[6] The white paper, Equity and Excellence: Liberating the NHS,^[7] was followed in December 2010 by an implementation plan in the form of Liberating the NHS: legislative framework and next steps.^[8] The bill was introduced into the House of Commons on 19 January 2011^[1] and received its second reading, a vote to approve the general principles of the Bill, by 321-235, a majority of 86, on 31 January 2011.^[9]

Contents and revisions

The Bill has implications for the entire NHS. NHS primary care trusts (PCTs) and Strategic Health Authorities (SHAs) will be abolished, with projected redundancy costs of £1 billion for around 21,000 staff.^[10] £60 to £80 billion worth of commissioning will be transferred from PCTs to several hundred clinical commissioning groups, partly run by GPs.

When the white paper was presented to Parliament, the Secretary of State for Health Andrew Lansley told MPs of three key principles:

• patients at the centre of the NHS
• changing the emphasis of measurement to clinical outcomes
• empowering health professionals, in particular GPs.

The white paper set out the following timetable. By April 2012 it proposed to:

• establish the independent NHS Commissioning Board
• establish new local authority health and well-being boards
• develop Monitor as an economic regulator.

The Bill foresees all NHS trusts becoming, or being amalgamated into, foundation trusts. The Bill also abolishes the existing cap on trusts' income from non-NHS sources, which in most cases was previously set at a relatively low single-digit percentage.^{[citation needed]}

Under the Bill's provisions the new commissioning system would be expected to be in place by April 2013, by which time SHAs and PCTs would be abolished.

The Bill has been analysed by Stephen Cragg of Doughty Street Chambers, on behalf of the 38 Degrees campaign, who concluded that "Effectively, the duty to provide a national health service would be lost if the Bill becomes law, and would be replaced by a duty on an unknown number of commissioning consortia with only a duty to make or arrange provision for that section of the population for which it is responsible." It replaces a “duty to provide” with a “Duty to promote”. ^[11].

"Listening exercise"

After an increase in opposition pressure, including from both the Liberal Democrats' rank-and-file and the British Medical Association, the government announced a "listening exercise" with critics.^[12] On 4 April 2011, the Government announced a "pause" in the progress of the Bill to allow the government to 'listen, reflect and improve' the proposals.^[13][14]

The Prime Minister, David Cameron, has said that "the status quo is not an option" and many within his and Nick Clegg's coalition have said that certain aspects of the Bill, such as the formation of clinical commissioning groups, are not only not open for discussion, but are also already too far along the path to completion to be stopped now.^[15] Cameron has insisted that the Bill is part of his "Big Society" agenda and that it will not alter the fundamental principles of the NHS.

Part of the "listening exercise" saw the creation on 6 April 2011 of the "NHS Future Forum".^[16] The Forum, according to Private Eye, "brings together 43 hand-picked individuals, many of whom are known as supporters of Lansley's approach".^[17] At the same time, David Cameron set up a separate panel to advise him on the reforms; members of this panel include Lord Crisp (NHS chief executive 2000-2006), Bill Moyes (a former head of Monitor), and the head of global health systems at McKinsey,^[17][18] as well as Mark Britnell, the head of health policy at KPMG. Six months previously Britnell had told a conference of private healthcare executives that "In future, the NHS will be a state insurance provider not a state deliverer," and emphasised the role of Lansley's reforms in making this possible: "The NHS will be shown no mercy and the best time to take advantage of this will be in the next couple of years."^[19][20] KPMG issued a press statement on behalf of Britnell on 16 May 2011 stating

"The article in The Observer attributes quotes to me that do not properly reflect discussions held at a private conference last October. Nor was I given the opportunity to respond ahead of publication. I worked in the NHS for twenty years and now work alongside it. I have always been a passionate advocate of the NHS and believe that it has a great future. Like many other countries throughout the world, the pressure facing healthcare funding and provision are enormous. If the NHS is to change and modernise the public, private and voluntary sectors will all need to play their part."

In June 2011 Cameron announced that the original deadline of 2013 would no longer be part of the reforms. There will also be changes to the Bill to make clear that the main duty of the health regulator, Monitor, will be to promote the interests of patients rather than promoting competition.^[21]

The Future Forum report suggested that any organisation that treats NHS patients, including independent hospitals, should be forced to hold meetings in public and publish minutes. It also wants the establishment of a Citizens’ Panel to report on how easy it is to choose services, while patients would be given a right to challenge poor treatment. The original Bill sought to abolish two tiers of management and hand power to new bodies led by GPs, called commissioning consortia, to buy £60 billion a year in treatment. Professor Steve Field, a GP who chaired the forum, said many of the fears the public and medical profession had about the Health and Social Care Bill had been "justified" as it contained "insufficient safeguards" against private companies exploiting the NHS.^[22]

Reactions

General

The Confederation of British Industry supports the bill, declaring that "Allowing the best provider to deliver healthcare services, whether they are a private company or a charity, will spur innovation and choice."^[23]

In May 2011, a number of doctors from GP consortia wrote a letter to the Daily Telegraph in which they expressed their support for the bill, calling its plans "a natural conclusion of the GP commissioning role that began with fundholding in the 1990s and, more recently, of the previous government's agenda of GP polysystems and pratice-based commissioning".^[24] On 14 May 2011, The Guardian published an article reporting that the GP appointed to head the NHS "listening exercise" has unilaterally condemned the bill.^[25] The article says that Steve Field has "dismissed" the plans "as unworkable" and that these statements were "provisional conclusions that could fatally undermine the plans". The Royal College of General Practitioners (RCGP) has also denounced the bill.^[26]

The Royal College of Physicians and Royal College of Surgeons^[23] have welcomed in principle the idea of medical professionals determining the direction of NHS services, but they question the Bill's implementation of the principle, particularly in regard to the approach of making GP consortia the primary commissioning deciders, and also in regard to requiring competition. The British Medical Association has said similarly.^[23] Neither of these organisations supports the bill.

In February 2011 David Bennett, newly appointed Chair of Monitor, said the NHS could become like other privatised utilities, so that Monitor would potentially be a regulator like Ofcom, Ofgem and Ofwat: "We, in the UK, have done this in other sectors before. We did it in gas, we did it in power, we did it in telecoms […] We've done it in rail, we've done it in water, so there's actually 20 years of experience in taking monopolistic, monolithic markets and providers and exposing them to economic regulation."^[27] The House of Commons Select Committee on Health condemned the comparison as not "accurate or helpful."^[28]

"Any willing provider"

Physicians and others employees of the NHS are primarily worried about the bill's intention to amend one of the founding pillars of the NHS to read "any willing provider" rather than the current language guaranteeing a needed service exclusively via the NHS and its direct affiliates and partners. Changing of the language of the NHS tenets to read "any willing provider" takes away that requirement and allows private sector providers to have a potentially major say inside the NHS, potentially introducing private-sector operations and pricing within the NHS and even opening up local NHS operations to the possibility of forced closure because the private industry could out-compete them and corral the NHS services into bankruptcy. The British Medical Association has said that "Forcing commissioners of care to tender contracts to any willing provider, including ... commercial companies, could destabilise local health economies and fragment care for patients. Adding price competition into the mix could also allow large commercial companies to enter the NHS market and chase the most profitable contracts, using their size to undercut on price, which could ultimately damage local services."^[23]

Layla Jader, a public health physician, said in the early months of 2011 that "The NHS needs evolution not revolution – these reforms are very threatening to the future of the NHS. If they go through, our children will look back and say how could you allow this to happen?" And Barry Miller, an anaesthetist from Bolton, added: "The potential to do phenomenal damage is profound. I haven't seen any evidence these proposals will improve healthcare in the long-term."^[29]

GPs as commissioners

The bill intends to make general practitioners the direct overseers of NHS funds, rather than having those funds channelled through neighbourhood- and region-based Primary Care Trusts, as is currently done.^[30]

There are concerns about fragmentation of the NHS and a loss of coordination and planning. The Royal College of General Practitioners said it was "concerned that some of the types of choice outlined in the government’s proposals run a risk of destabilising the NHS and causing long-term harm to patient outcomes, particularly in cases of children with disabilities, those with multiple comorbidities and the frail and elderly."^[23] Similarly, the Royal College of Physicians said that "Whilst we welcome the broad provision in the bill to seek professional expertise, the RCP is concerned that the bill does not require that specialists are at the heart of the commissioning process."^[23] The Royal College of Psychiatrists said it "would be dismayed if psychiatrists were not closely involved with local consortia of GPs in the development of mental health services."^[23] The Royal College of Surgeons said that "the legislation leaves the question of regional level commissioning unanswered with no intermediary structure put in place."^[23] And there are concerns about management expertise, particularly by looking at the US. The BMJ wrote that

"No matter how many GP consortiums eventually emerge, their number will probably greatly exceed the 152 primary care trusts they are replacing, which brings a set of new challenges. Smaller populations increase the chances that a few very expensive patients will blow a hole in budgets. More consortiums mean that commissioning skills, already in short supply nationally, will be spread even more thinly. Denied economies of scale, smaller consortiums may be tempted to cut corners on high quality infrastructure and management, thereby endangering their survival. These points emerge clearly from an examination of 20 years of US experience of handing the equivalent of commissioning budgets to groups of doctors. Some groups had severely underestimated the importance of high quality professional management support in their early days and gone bankrupt as a result."^{[3] [31]}

The House of Commons health committee has suggested the government let experts other than the consortia GPs and their direct allies get involved in the running of the consortia, including hospital doctors, public health chiefs, social care staff, and councillors. That idea has received some wider support and the government has agreed to give it consideration. Those close to Health Secretary Andrew Lansley have said, however, that Lansley is concerned adding too many people to consortia decision-making risks making the consortia too unwieldy."^[32] In 2010 the same committee had gone so far as to declare that "if reliable figures for the costs of commissioning prove that it is uneconomic and if it does not begin to improve soon, after 20 years of costly failure, the purchaser/provider split may need to be abolished."^[3][33]

Accountability

Kieran Walshe, professor of health policy and management and Chris Ham, chief executive of the King's Fund, have argued that "At a national level, it is difficult to see who, if anyone, will be in charge of the NHS. There will be five key national bodies: the Department of Health, the National Institute for Health and Clinical Excellence, the Care Quality Commission, the NHS Commissioning Board, and the economic regulator Monitor. Although the remit of each is set out in legislation, it is not clear how these national bodies will interact or how they will provide coordinated and consistent governance of the NHS."^[34]

In addition, GP consortia under this system restructuring would be privately-run businesses, meeting in private, which risks damaging accountability instead of increasing it. "Ministers have argued that they will be forced to produce accessible annual accounts and will have to answer freedom of information requests."^[32] Primary Care Trusts are public bodies with public meetings, and thus have no such accountability grey-area problems.

Pace and timing of change

The King's Fund said that "the very real risk that the speed and scale of the reforms could destabilise the NHS and undermine care must be actively managed."^[23]

The BMJ said in January 2011 that "The bill promises that all general practices will be part of consortiums by April 2012, yet it took six years for 56% of general practices to become fundholders after the introduction of the internal market. Nearly seven years after the first NHS trust was granted foundation status, there are still more than half to go—within two years. And there’s more. The replacement for the 10 strategic health authorities—the NHS Commissioning Board—needs to be fully operational by next April. By then, GP consortiums should have developed relationships with local authorities, which will assume ultimate responsibility for public health via their new health and wellbeing boards, working alongside Public Health England, a completely new entity."^[3] The BMA believes such targets to be either wholly impossible or, at best, able to be done only in a very roughshod manner, which could in turn have very serious on-the-ground consequences to NHS functioning.

Medical establishment reaction

The British Medical Association opposes the bill,^[35] and held its first emergency meeting in 19 years,^[36] which asked the government to withdraw the bill and reconsider the reforms, although a motion of no confidence in Andrew Lansley by the BMA failed.^[36] A later motion of no confidence in Lansley by attendees at the Royal College of Nursing Conference in 2011, however, succeeded, with 96% voting in favour of the motion, and several speeches thereafter condemning Lansley threefold: the Health and Social Care Bill 2011 as-written; Lansley's decision not to address the entire Conference with a speech, but instead to hold a separate meeting with 40 Conference attendees in a separate space (taken as an insult to nurses, and leading to accusations of 'gutlessness'); and the current "efficiency savings" being undertaken across the NHS and those actions' material impact on frontline medical services, especially as contrasted with several prominent officials, including NHS leaders and Lansley himself, repeatedly assuring that NHS frontline services are 'protected' at all times regardless of these "savings" measures.^[37][38]

Grassroots groups

A panorama of the 'Block the Bridge' anti-cuts protest on Westminster Bridge, in October 2011

Various grassroots groups oppose the bill, including NHS Direct Action,^[39] Keep Our NHS Public,^[40] 38 Degrees,^[41] and the trade union Unite.^[42] 38 Degrees' petition against the reforms passed 250,000 signatures by 21 April 2011.^[41] In March 2011 a near-unanimous motion at the Liberal Democrat spring conference called for changes to the Bill to ensure greater accountability and prevent cherry-picking by private providers, among other demands aimed at reducing marketisation of the NHS.^[43] UNISON sponsored rapper NxtGen to create an unflattering hip hop track about the bill^[44], which has now been viewed over 390,000 times on YouTube^[45].

On 9 October 2011, a sit-down protest organised by UK Uncut took place on Westminster Bridge. 2,000 health workers and activists attended the protest^[46]. The location of the protest was symbolic as the bridge lies between the Houses of Parliament and St Thomas' Hospital, one of the main NHS hospitals in Central London.

See also

• Nicholson challenge
• National Health Service Act 2006
• National Health Service Act 1977 (c 49)
• National Health Service and Community Care Act 1990 (c 19)
• National Health Service Act 1997 (c 56)(c 46)
• National Health Service Act 1966 (c 8) section 10, on GP remuneration
• NHS Redress Act 2006

References

1. ^ ^{a b} www.parliament.uk, Bill stages — Health and Social Care Bill 2010-11
2. ^ www.parliament.uk, Health and Social Care Bill - text of bill as introduced on 19 January 2011.
3. ^ ^{a b c d e f} BMJ, 2011; 342:d408, Dr Lansley’s Monster doi:10.1136/bmj.d408
4. ^ Clive Peedell, BMJ, 17 May 2011, Further privatisation is inevitable under the proposed NHS reforms, BMJ 2011; 342:d2996
5. ^ "NHS hospital management by overseas firms 'discussed'". BBC News Online. 4 September 2011. http://www.bbc.co.uk/news/uk-politics-14778406. 
6. ^ ^{a b c} Daily Telegraph, 9 July 2010, Biggest revolution in the NHS for 60 years
7. ^ "Equity and excellence: liberating the NHS". Dh.gov.uk. http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_117353. Retrieved 2010-07-12. 
8. ^ Department of Health, Health and Social Care Bill 2011
9. ^ Hansard, HC Deb 31 Jan 2011, cols 700-704
10. ^ guardian.co.uk, 19 January 2011, Health and social care bill based on 20,900 NHS redundancies
11. ^ 38degrees.org.uk, 30 August 2011, NHS LEGAL REVIEW ON DUTY TO PROVIDE
12. ^ BBC, 6 April 2011, PM seeks to allay fears, but insists change is needed
13. ^ Coalition to 'pause, listen and reflect' on NHS reform ePolitix.com, published 2011-04-06, accessed 2011-04-06
14. ^ Government to "pause, listen, reflect and improve" NHS reform plans guardian.co.uk, published 2011-04-06, accessed 2011-04-06
15. ^ The Independent, 7 April 2011, Minister: tell us your fears about NHS reforms – but we might not listen
16. ^ Department of Health, 6 April 2011, NHS Future Forum to provide channel for patient and staff opinion
17. ^ ^{a b} Private Eye, Issue 1288, "Is anybody listening?", p30
18. ^ Nursing Times, 3 May 2011, Expert panel to advise prime minister on NHS
19. ^ The Observer, 15 May 2011, David Cameron's adviser says health reform is a chance to make big profits
20. ^ Spinwatch, 9 May 2011, "The NHS will be shown no mercy" says Cameron health adviser
21. ^ NHS reforms: David Cameron unveils key changes
22. ^ David Cameron promises major concessions on NHS reforms
23. ^ ^{a b c d e f g h i} BMJ (2011), Reaction: what they say about the health bill, BMJ 2011; 342:d413 doi:10.1136/bmj.d413
24. ^ "GP group backs NHS reforms in Telegraph letter". BBC News Online. 11 May 2011. http://www.bbc.co.uk/news/health-13356938. 
25. ^ Campbell, Denis (13 May 2011). "NHS (Society),Health (Society),Society,UK news,Health policy,Andrew Lansley,Politics,GPs (Society)". The Guardian (London). http://www.guardian.co.uk/society/2011/may/13/andrew-lansley-nhs-reforms-unworkable. 
26. ^ http://www.politics.co.uk/news/health/government-defeats-labour-over-nhs-reforms-$21388709.htm
27. ^ The Times, 25 February 2011, "NHS reforms raise prospect of Tesco-style hospital chains"
28. ^ House of Commons Select Committee on Health, 31 March 2011, Health Committee - Fifth Report. Commissioning: further issues
29. ^ "Doctors want halt to NHS plans but reject opposition". BBC. 15 March 2011. http://www.bbc.co.uk/news/health-12737206. 
30. ^ BBC, 9 July 2010, NHS shake-up 'hands funding powers to GPs'
31. ^ O’Dowd A. GP consortiums will need first class management support, says Nuffield Trust. BMJ2011;342:d337. doi:10.1136/bmj.d337
32. ^ ^{a b} BBC, 5 April 2011, NHS changes: Points of contention, accessed 21 April 2011
33. ^ House of Commons Health Committee. Fourth report of session 2009-10. Commissioning.2010. www.publications.parliament.uk/pa/cm200910/cmselect/cmhealth/268/268i.pdf
34. ^ Kieran Walshe and Chris Ham (2011), Can the government’s proposals for NHS reform be made to work?, BMJ 2011; 342:d2038 doi:10.1136/bmj.d2038
35. ^ British Medical Association, Health and Social Care Bill - lobbying toolkit
36. ^ ^{a b} Sky News, 15 March 2011, BMA Rejects Health Sec 'No Confidence' Vote
37. ^ BBC, 13 April 2011, Lansley sorry as nurses pass 'no confidence' vote
38. ^ BBC, 11 April 2011, NHS reform: Front-line clinical jobs 'under threat'
39. ^ NHS Direct Action
40. ^ Keep Our NHS Public
41. ^ ^{a b} 38 Degrees, Save the NHS: Sign The Petition, accessed 21 April 2011
42. ^ Unite, Unite 4 our NHS
43. ^ guardian.co.uk, 13 March 2011, NHS reforms face overhaul after Liberal Democrats' rebellion
44. ^ Union paid for Andrew Lansley rap attack, Mirror.co.uk, 3 April 2011
45. ^ Andrew Lansley Rap, 31 May 2011
46. ^ http://www.guardian.co.uk/uk/2011/oct/09/anti-nhs-reforms-protest-block-bridge?newsfeed=true

External links

• Bill as introduced in the House of Commons
• Bill as introduced in the House of Lords (reflecting changes made after the Listening Exercise)
• Bill progress page on parliament.uk
• BMJ minisite focusing on reforms to the NHS