Here’s what’s next in the battle against NHS privatisation

10:40 am - April 5th 2013

by Alice Hood    

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The most sweeping changes to our NHS since its inception were put in place on Monday.

But as the new system grinds into gear the fight continues, including an immediate battle over the competition regulations at the heart of the ‘reforms’. There’s a chance to defeat this core element of the Government’s plans in Parliament this month, and we’re asking supporters to contact MPs and members of the House of Lords to ensure that they act.

When the Procurement, Patient Choice and Competition Regulations under section 75 of the Health and Social Care Act were quietly published in February there was uproar from the public, medical professions and health unions.

They all believed the regulations broke promises Ministers made during the passage of the Act that decisions about whether, when and how to use competition would lie squarely with the new GP commissioners.

Instead they would force services out to competition. The outcry forced the Government to rewrite and a second version was laid in March, coming into effect on 1 April.

So what changed? Some warm words about integration and co-operation were added to the new regulations and some of the most explicit pro-competition wording was removed. But experts agree that the new wording has much the same effect as the previous version.

The key point is the ‘single provider test’ in regulation 5. To award a contract to provide health care services without a competition, commissioners will have to be satisfied that only that provider is capable of delivering that service.

There are lots of sensible reasons why commissioners might not want to put a service out to competition. For instance, they might think the contract is too small to justify the trouble and expense of a competition, or they might want to support a local NHS provider that is already delivering a good service for patients.

But if they can’t be certain there is only one possible provider, they will have to subject the service to competition. As this blog explains, there will often be more than one possible provider, for instance where a town has more than one hospital. Private and voluntary sector providers are likely to claim that they are potential providers too.

The bar is set so high that CCGs will end up feeling that the only way to ‘prove’ there is only one provider is to hold a competition. They are also likely to be nervous that they will face legal challenges from private providers who want to get into the NHS.

Not only will this increase the privatisation of the NHS, it will mean time and money wasted on complicated contracting processes. It will make money for lawyers and management consultants that could be better spent on providing care.

The medical professions are not convinced by the cosmetic changes. The BMA, RCN, RCGP and NHS Clinical Commissioners have all spoken out and 250 doctors have signed an open letter in the British Medical Journal.

Legal advice for 38 degrees by David Lock QC sets the risks out clearly.

A key Lords Committee examined the new regulations and their incisive report (see section C) was critical of the rushed, last-minute policy-making process and the confusion over what the revised regulations mean. The Committee sympathised with the view the regs should be revoked to allow more time for consultation, and have referred them for the ‘special attention’ of the House of Lords.

We’re asking people to contact peers and ask them to give the regulations the scrutiny they deserve by joining the debate on 24 April and supporting the ‘fatal motion’ laid by Labour’s health lead in the Lords, Phil Hunt.

If enough Liberal Democrat and Crossbench peers can be persuaded to support it the motion will scrap the regulations and force the government to think again.

MPs have a part to play too. The equivalent procedure to ‘pray against’ the regs in the Commons is an Early Day Motion signed by the leader of the Opposition. Make sure your MP has signed EDM 1188 to secure a debate there too.

There will be much more to do to protect our NHS from the worst of these reforms over the coming years. But at this point a defeat for these dangerous regulations is vital.

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About the author
Alice Hood is a TUC senior policy officer, working on public services and covering public service reform, health, local government, public service pensions and pay. She blogs more regularly at the Touchstone blog.
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Story Filed Under: Blog ,Fight the cuts ,Health

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Reader comments


A useful update on where we are, thanks.

I think campaigners may be missing one trick, which may come in useful as and when/if the fatal motion is lost.

This (as I set out here is the existence of the 2012 Social Value (Public Services) legislation, which requires public authorities – and this included Clinical Commissioning Groups – to consider, in the event of open competition for services:

“(a) how what is proposed to be procured might improve the economic, social and environmental well-being of the relevant area, and

(b) how, in conducting the process of procurement, it might act with a view to securing that improvement.”

I am not sure that CCGs have fully taken on board the idea that this legislation applies to them as well as to local councils (at whom it was targeted), and a useful campaign job might be for activists to remind them – and the councillors and governors responsible for scrutiny of health services – that NOT taking profit out of the system might easily be considered a relevant, and legally robust, determining factor when deciding which offer of services best meet the needs of local populations in the context of this new law.

I know Unison are aware (see link in my blog) of the potential for this area of action, but I don’t know if it’d had as much coverage beyond them as it needs.

2. Scooby Duck

I contacted our local MP Andrew Jones when the previous EDM ws up for a vote to raise my concerns. Basically, summarising from memory, he said he “believed in the NHS”, said he couldn’t be arsed to vote on EDMs generally and dismissed the 38 Degrees investigation and report by David Lock QC as he is involved in the Labour party. He avoided my questioning over how odd it was that so many private health companies or members of them donate to the conservative party too… Makes you wonder why ya bovver expressing any concerns 🙁

Why would anyone in their right mind want to prevent competition for the provision of NHS services, particularly when the NHS will remain publicly owned, managed and funded? Outsourcing generally improves services.

@3. TONE

Why would anyone in their right mind want to prevent competition for the provision of NHS services, particularly when the NHS will remain publicly owned, managed and funded? Outsourcing generally improves services.

No, it doesn’t. I used to teach in FE Colleges (I escaped into commercial training), and overlapped the era where catering, cleaning etc was outsourced. The service afterwards was generally worse, more expensive and the workers more badly paid. I also hear repeatedly that since ancillary ward services in hospitals were outsourced, the standard of service has plummeted.

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