How the Health and Social Care Bill 2011 would end entitlement to comprehensive health care in England
By Allyson M Pollock, David Price, Peter Roderick, Tim Treuherz, David McCoy, Martin McKee, Lucy Reynolds
The Lancet, January 26, 2012
(Excerpts)
The National Health Service (NHS) in England has been a leading international model of tax-financed, universal health care. Legal analysis shows that the Health and Social Care Bill currently making its way through the UK Parliament would abolish that model and pave the way for the introduction of a US-style health system by eroding entitlement to equality of health-care provision. The Bill severs the duty of the Secretary of State for Health to secure comprehensive health care throughout England and introduces competitive markets and structures consistent with greater inequality of provision, mixed funding, and widespread provision by private health corporations. The Bill has had a turbulent passage. Unusually, the legislative process was suspended for more than 2 months in 2011 because of the weight of public concern. It was recommitted to Parliament largely unaltered after a “listening exercise”. These and more recent amendments to the Bill do not sufficiently address major concerns that continue to be raised by Peers and a Constitution Committee of the House of Lords, where the Bill now faces one of its last parliamentary hurdles before becoming law.
Fundamental to the Bill are provisions that transform a mandatory system into a discretionary one with structures that permit the introduction of charging for services that are currently free under the NHS, as well as a system in which much delivery would be privatised. Under the current statutory framework the Government has a legal duty to secure comprehensive health care, whereas, under the new system, substantial discretionary powers will instead be extended to commissioners and providers of care. These measures will increase inequalities of provision.
The whole system has been publicly administered and funded on the basis of contiguous geographical areas by bodies, now called primary care trusts (PCTs), that act on behalf of the Secretary of State and have responsibility for the health-care needs of everyone in their area.
The Bill creates two new bodies with responsibility for managing care: an NHS Commissioning Board and Clinical Commissioning Groups (CCGs), the number of which remain unclear. PCTs will be abolished and not replaced.
Clause 12 of the Health and Social Care Bill repeals the Secretary of State’s “duty to provide” specific services. Instead, a “duty to arrange” provision is imposed on each of the many CCGs that will also have transferred to them the power to determine what care is necessary to meet all reasonable requirements. However, CCGs will not have the duty to promote a comprehensive free health service.
As well as transferring powers from the Secretary of State to other bodies, the Bill leaves each CCG free to choose the patients for whom they have responsibility. Unlike PCTs, CCGs will not be responsible for all residents within contiguous geographical areas. CCGs select patients, initially assembling their patient populations on the basis of general practitioners’ (GPs) lists; they will not have to cover everyone in a geographical area but only “persons for whom it [the CCG] has responsibility”. Nor will they be required to arrange for the provision of all the services that are currently part of the comprehensive health system.
These changes will have substantial legal consequences. First, the duty to provide a national health service throughout England would be lost if the Bill became law. It would be replaced by a duty on an unknown number of CCGs, not GPs, to arrange provision as they see fit for various sections of the population for which they are separately responsible. Second, CCGs would not be bound by the “duty to continue to promote a comprehensive free health service” when exercising their functions. Under present law, according to a judgment of the Court of Appeal, the Secretary of State “has the duty to continue to promote a comprehensive free health service and he must never, in making a decision [about services provided], disregard that duty”. Third, the Secretary of State’s accountability to Parliament for the provision of services to patients in the new NHS will be diminished.
The Government has not disclosed the radical nature of this reform.
In the USA, opposition to health reforms under both the Clinton and Obama administrations is articulated as erosion of personal freedom by increasing government powers. Conversely, pro-market reforms of universal health systems in Europe are often justified on the grounds that they increase personal freedom by transferring powers from government to non-governmental or commercial bodies and by increasing choice. Citizens’ rights in democracies are underpinned not just by limitations on government powers but also by legal duties imposed on governments, such as those that guarantee citizens access to health care. The Bill would withdraw this legal underpinning. As the Bill enters its final critical stages it is crucial that Peers observe three red lines for the NHS (below) and are fully aware of the key parts of the legislation that would abolish core NHS functions, if they are to safeguard the NHS for future generations.
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Red lines to protect the NHS
# The Secretary of State must have the duty to secure provision of comprehensive and equitable health care for the whole of the population of England, taking action whenever there are problems.
# CCGs (Clinical Commissioning Groups), operating on behalf of the Secretary of State, must make sure that comprehensive and equitable health care is available for everyone and be responsible for all residents living in single geographically defined areas that are contiguous, without being able to pick and choose patients.
# Nothing must be done that undermines the ability of the Secretary of State to fulfil the duty to secure provision of comprehensive and equitable health care, by bringing more of the NHS within the scope of EU competition law so that, in particular:
* There must be no increase in the commercial contracting of health services;
* The current authorisation system for central regulation of Foundation Trusts must be retained;
* Statutory functions of CCGs must be carried out by NHS staff, with CCG finances being used solely for the benefit of patients;
* Statutory and enforceable codes of conduct must be laid down for all NHS bodies, underpinned by sanctions that are rigorously policed;
* Information about commercial contracting, including the planning, procurement, financing, and monitoring, must be available as a matter of course.
http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(12)60119-6/fulltext (The Lancet is offering access to this important article for free, but they do require registration.)
Comment:
By Don McCanne, MD
The Conservative government of David Cameron is about to destroy England’s National Health Service, as we know it. While we are struggling in our attempt to ensure health care for everyone (and are still not receiving it under the Affordable Care Act), the British government is severing its responsibility to secure comprehensive health care throughout England.
Health care justice is an international cause. We should partner with our colleagues in England to support their cause in this moment of crisis, as they later partner with us to see that health care justice becomes a reality in the United States… and throughout the world.
