NHS Restoration and Public Health Bill

A BILL TO RE-ESTABLISH THE NATIONAL HEALTH SERVICE ACCORDING TO ITS FOUNDING PRINCIPLES AND MAKE VARIOUS PROVISIONS FOR THE IMPROVEMENT OF THE PUBLIC HEALTH AND THE QUALITY OF HEALTH CARE

EXPLANATORY BRIEF

SUMMARY

The NHS was a set of institutions through which the UK would pursue the health of the people as a social goal by deploying a committed body of health professionals and health workers to the service of socially owned organisations democratically accountable to the people. Health would be improved by addressing the determinants of health and also by providing health care free at the time of use, provided according to need rather than ability to pay, planned to optimise resources, and financed out of general taxation.

It is only necessary to state these principles to realise how little of this concept now remains in England. We still provide health care according to need rather than ability to pay and funded out of general taxation. None of the other principles remain.

The founding principles of the NHS have been steadily eroded by a number of changes. The 1974 reorganisation and redefinition, the managerial and centralist policies of the Thatcher Government, the introduction of a competitive commercial ethos into NHS markets by the Blair Government and the 2012 Health & Social Care Act have all contributed to the destruction of the NHS.

The original case for an NHS is as strong as ever because

At most 50% (and perhaps as little as 10%) of health improvement results from health care – the rest derives from social, environmental and behavioural determinants. Bevan’s vision of an NHS that addressed the determinants of health as well as providing healthcare remains fundamental.
Healthcare and health improvement require active engagement of communities and individuals. Professional care is only part of the solution. Bevan’s vision of an NHS rooted in the pursuit of health as a social goal is as valid as ever.
There are important economic reasons why markets in healthcare do not work. For that reason the reliance on market competition within the constraints of competition law will be disastrous. Because of EU law we do not have the option of moderated competition or markets-lite. We either have a full blown market or we have a public service. The former will lead to deteriorating quality and rising costs.

Commercial markets in healthcare do not optimise resources or improve quality because

Consumers depend on the advice of providers
Consumers are unable to afford catastrophic costs so risk sharing is necessary (either via the state or via insurance. This creates “moral hazard” (a belief in a right to the best rather than the optimal).
Commissioning authorities acting as makers of the market are not a solution to this because of the difficulty in measuring performance adequately. It is easier to make profits by exploiting information anomalies than by improving services.
Hospitals and pharmaceuticals both have downwardly sloping cost curves and high entry costs so, according to Pigou’s theorem, a simple market will clear with unused capacity and high prices. (Adjustment of this market leads to some other versions of Pigou’s theorem such as that which applies to free and unrationed services where the market clears by reducing quality and we need to be aware of those as well – particularly in our policies towards waiting times)

The argument that the “NHS must be reformed” because “it must meet the needs of an ageing population” is valid, but the reform needed to meet this challenge is NHS restoration not commercialisation.

An ageing population will reduce healthcare costs, not increase them, provided that healthy life expectancy rises as fast as or faster than life expectancy. This can only be achieved by a healthy ageing strategy rooted in prevention.
An ageing population especially requires the collaborative efforts of society in reablement and in the promotion of independence
NHS restoration is a better mechanism for resource optimisation than commercialisation.

We need an NHS Restoration Act which will

reverse the commercialisation provisions of the 2012 Act
address the determinants of health
improve healthcare planning
establish the occupational health service originally planned
ensure provision independent of ability to pay, addressing the problems of charges and top-ups
democratise the NHS
promote a social and professional ethos and restrict competition, but provide alternative routes to innovation and dissemination of good practice
protect the professional freedom to give honest advice
abolish the distinction between health and social care
account for the health impact of government policies
address the role of economic markets as choice editors obstructing healthy lifestyles
provide redress and appeals processes that will be more efficient than current clinical negligence processes
protect medical confidentiality

THE FOUNDING PRINCIPLES AND THEIR EROSION

During the 1920s the State Medical Services Association began to articulate the case for a National Health Service. In 1929 the BMA adopted a resolution of support for this concept. Through the 1930s the BMA, the MPU and the Socialist Medical Association (the body now called the SHA) campaigned actively for the concept and developed more clarity about how it could work. The BMA in 1930 and the MPU in 1936 both produced detailed proposals. In the early 1940s the Labour Ministers in the wartime Coalition Government turned this into a practical political proposition. By 1946, when the Act was passed, a broad national consensus existed. The only things which divided Government and Opposition was the nationalisation of the hospitals. Only two things divided the Government from the BMA – the contractual arrangements on which doctors were employed and the BMA’s deep disappointment that occupational health and the Factories Inspectorate were not included.

The consensus was for an NHS which was a set of institutions through which the UK would pursue the health of the people as a social goal by deploying a committed body of health professionals and health workers to the service of socially owned organisations democratically accountable to the people. Health would be improved by addressing the determinants of health and by providing health care free at the time of use, provided according to need rather than ability to pay, planned to optimise resources, and financed out of general taxation.

The principle that the NHS should address the determinants of health began to be undermined even before the Act was passed. Ernest Bevin secured the exclusion of occupational health from the NHS. Despite that setback Nye Bevan placed great hopes in the preventive wing of the NHS – the Health Departments of the local authorities – to improve the health of the people. He was right – in its first quarter century the NHS cleared the slums and cleaned the air. In 1974 the Health Departments were split in two; the medical and nursing parts of them were transferred to the health authorities; environmental health remained with local authorities and therefore ceased to be part of the NHS, since the 1974 reorganisation separated local authorities and the NHS completely. Since 1974 the NHS has had no mechanism to address the determinants of health.

Bevan’s NHS was run by locally-accountable organisations (local authorities, Hospital Management Committees, Executive Councils) with national oversight. Between 1974 and the early 1990s this was eroded in a succession of reorganisations which created a top down bureaucratic management. At least there was still a fig leaf of accountability to Parliament but the 2012 Act weakens even that.

Bevan’s NHS was operated either by socially owned organisations or by independent professionals in contract with such organisations. This was eroded by the Blair Government first through the development of commercial standards for Foundation Trusts and then through introduction of commercial contractors. The present Government is massively expanding those initiatives. Once a tipping point is reached at which the NHS is no longer legally a public service but is instead a commercial market, EU competition law applies much more strictly and any attempt to maintain social ownership, social accountability or collaborative planning may come to be seen as anti-competitive. It is probable that the three sections of the Health and Social Care Act 2012 which prohibit discrimination against commercial providers have the effect of taking us past that tipping point.

If this is true then the Act’s laudable attempts to re-empower professionals will fail, except in respect of one group of professionals – procurement lawyers. Bevan’s vision of a family of professionals accountable to the people, a vision he first developed when pursuing compensation claims for workers in South Wales, has been seriously eroded. Not only have the mechanisms for accountability disappeared but managerialism has been asserted above professionalism. Professionalism is now sneered at as “provider interests”. Everybody who knows what they are talking about is viewed as a vested interest.

Hospital care is still free at the time of use. But dental, optical and prescription charges were introduced in the 1950s and have crept upwards steadily to the point at which NHS dentistry and optometry are virtually marketised and prescription charges have long passed the point at which they are a noticeable price – indeed for those just above the means tested exemption they can be a real barrier.

THE PURPOSE OF AN NHS RESTORATION BILL

Against this background we are essentially back in the 1930s with one important exception. The battle for state funded health care has been won. That is an important gain that we retain from the days of the NHS. But everything else about the NHS has been lost. The battle for health to be pursued as a social goal has to be fought again.

There are many aspects to that battle, from trying to preserve as much as we can of the NHS from within the new institutions to campaigning against specific consequences to general grass roots political education and organisation. The writing of an NHS Restoration Act is one of them. However it would be a meaningless process unless it was focussed on informing that process and being informed by it.

The aim should not just be to reverse the 2012 Act. The NHS by 2010 was already a shadow of what was originally intended. The major erosion that occurred in 1974 is probably as important as that which happened in 2012. We have 70 years of erosion to reverse.

Our predecessors built the entire consensus for the NHS in 15 years. With their example to guide us, their memories still in place and the very important preserved gain of state-funding already in hand, we should be able to do it quicker. We should aim for the NHS to be re-established in the next Parliament.

THE CASE FOR RESTORING THE NHS

There are those, including not only the current Government but also many in the Labour Party who remain loyal to a Blairite concept of “public sector reform”, who will argue that in fact that which remains is all that actually matters about the NHS; they say that healthcare provided according to need rather than ability to pay was the only substantial and important element that needs to be retained and that everything else is insignificant. They will say therefore that the NHS is safe. On their argument it would be safe even if not a single NHS hospital or general practice remained and commissioning had been taken over by insurance companies.

This argument is wrong for the following reasons

At most 50% (and perhaps as little as 10%) of health improvement results from health care – the rest derives from social, environmental and behavioural determinants. Bevan’s vision of an NHS that addressed the determinants of health as well as providing healthcare remains fundamental.
Healthcare and health improvement require active engagement of communities and individuals. Professional care is only part of the solution. Bevan’s vision of an NHS rooted in the pursuit of health as a social goal is as valid as ever.
There are important economic reasons why markets in healthcare do not work. For that reason the reliance on market competition within the constraints of competition law will be disastrous. Because of EU law we do not have the option of moderated competition or markets-lite. We either have a full blown market or we have a public service. The former will lead to deteriorating quality and rising costs.

These three reasons for restoring the NHS need to be strongly argued – one of the reasons that the 2012 Act has been possible is because understanding of these three issues in political circles is much weaker than it should be (and indeed on the issue of addressing the determinants of health the Lansley proposals are actually less bad than the performance of the Blair Government).

Chapter 1 REPEAL OF THE HEALTH & SOCIAL CARE ACT 2012

The commercial market introduced by the 2012 Act needs to be removed. That need not entail another wholesale reorganisation. The institutions of the Act are flawed in the constraints they are under and in their remit and accountabilities, not in their structure.

A possible approach would be

To return to a situation in which it is defined as normal for the Secretary of State to provide services through the NHS rather than secure them from outside
To make it possible for charities and other organisations with a social or professional ethos to become part of the NHS returning to Bevan’s original concept of a family of socially-owned organisations rather than a state bureaucracy
To return to the distribution of powers in the 2006 Act but with powers at each level being distributed amongst existing organisations so that the NHS Commissioning Board would distribute the powers of Strategic Health Authorities amongst the various national and subnational bodies and local authorities would distribute the powers of PCTs amongst the various local and supralocal bodies
To remove the distinction between “the health service” and “the NHS” introduced by s64(4)

Chapter 2 THE NHS TO ADDRESS THE DETERMINANTS OF HEALTH

In this section of the Act we would

reverse the 1974 redefinition which took environmental health out of the NHS,
recognise the public health roles of a wide range of organisations,
create duties to promote physical activity, civil society, and stress-free situations
make provision for healthy transport, healthy housing, healthy spatial planning, public conveniences
create rights to healthy minimum incomes, affordable warmth, opportunities for meaningful social contributions

This chapter, together with chapters 4 (healthy work), 11 (healthy Government policy) and 12 (healthy economic markets) would constitute a new Public Health Act.

There will be those who argue that this is a separate agenda and that a new Public Health Act should be a separate piece of legislation. I disagree with this for two reasons

Rediscovering the concept that addressing the determinants of health is part of the NHS project is an important part of rediscovering the original vision. We have forgotten that Bevan’s NHS cleaned the air and cleared the slums. Indeed we have more than forgotten it – we have permitted history to be re-engineered so that most informed people would actually believe it to be wrong, neglecting the status of the local authority Health Departments as one of the three wings of the NHS and saying “No-no- that was the local authorities”, often in the same pitying tone that they dismiss Bevan’s idea that the NHS would improve health as a naive belief in the power of medicine.
The Public Health Act will be the perpetual second priority. The 1997 incoming Secretary of State said that a Public Health Act was needed but an NHS Act was the first priority. 13 years later the Government left office having passed three major NHS Acts but no substantial Public Health Act.

Chapter 3 THE NHS TO BE PLANNED TO MEET NEED

Within this section should be measures to

Enhance the input of healthcare public health into the NHS
Give extra powers to Health & Well Being Boards to require compliance with the Health & Well Being Strategy
Ensure that clinical experiences, patient experiences and public consultation influence the JSNA but are themselves subject to scrutiny against population evidence
Define the role of Clinical Senates
Give statutory status to outcome frameworks
Create a duty to optimise resources
Do something (what?) to enhance resource optimisation.

Chapter 4 IMPLEMENTATION OF THE LONGSTANDING AMBITION TO ESTABLISH AN OCCUPATIONAL HEALTH SERVICE AS PART OF THE NHS

Work causes about one-third of inequality of health according to an old study which has not been repeated recently. This is plausible as we spend a third of our waking adult life at work.

Workplaces are a convenient place to deliver some interventions.

Poor quality work is a major source of stress, as is worklessness, and the two are not alternatives – they fall successively on the same social group.

Original plans for the NHS were for a quadripartite service – hospital, family health services, public health and occupational health. However the NHS was launched as a tripartite service because occupational health was dropped.

There was some campaigning during the 1950s for the fourth wing to be established but when the HSE was finally set up it was not as part of the NHS (from which in any case environmental health had already been excluded) nor as a body linking enforcement with a professional occupational health service but as a pure regulatory agency. It can be argued that this accounts for current risk-management problems.

There was further campaigning for an occupational health service in the 1980s. By then the idea of an NHS that addressed the determinants of health was already a fading memory, so this campaign focussed on provision by employers. We had also moved on from the days in the 1940s when the Chief Inspector of Factories told a BMA conference on the NHS that the factory inspectors were “blood brothers” of the health professions to a situation where there was tension between the different perspectives.

Today health and safety regulation is under attack and employer-provided occupational health services are another fading memory. The time has come to go back to first principles in terms of what we want in health input to the workplace.

Chapter 5 THE NHS TO DELIVER CARE ACCORDING TO CLINICAL NEED AND NOT ABILITY TO PAY

What do we want to do with NHS charges?

(a)Abolish them?

(b)Abolish them unless they are income related so they have an equal impact on the rich as they do on the poor?

(c)Abolish them unless they are income-related and designed to support resource-optimisation by discouraging unnecessarily wasteful use of NHS resources?

(d)Cut them substantially?

(e)Restrict them to sums that are readily affordable?

If we want to cut the proportion of NHS income that comes from charges to patients how do we want to replace it?

(a)From higher income tax?

(b)From levies on insurance companies to pay for treatment of victims of injuries arising in the context of insured events?

(c)Something else?

How do we want to deal with treatment that is effective but not cost-effective?

(a)Continue not to provide it and to prohibit top up fees so only those rich enough to pay for it privately can have it?

(b)Provide it in return for income-related top up charges which would ensure its availability irrespective of ability to pay but only by compromising the free at the time of use concept?

(c)Wastefully provide it to everybody and substantially increase taxation to pay for it?

(I find this really difficult because all these options are unacceptable and I can’t think of a fourth. I tend to think of (b) as the least unacceptable but I still hate it.)

Do we want to have more controls on amenity charges e.g. only to be levied if basic amenities are good and the charges are reasonable? Are there differences between personal amenities (caviar and champagne for breakfast) and business amenities (wi-fi access to work from ward)?

Are there areas where personal budgets empower people?

Chapter 6 THE NHS TO BE LED BY HEALTH PROFESSIONALS DEMOCRATICALLY ACCOUNTABLE TO THE PEOPLE

We need to shift power from bureaucrats and bean counters to Parliament, the professions and the people? How?

What is the difference between bureaucrats and bean counters on the one hand and on the other hand inspirational managers and resource optimisers?

How do we reconcile the tension between national and local control? Nye Bevan built this in as a constructive tension but what should the balance be?

How do we reconcile the tension between professional leadership and democratic accountability?

Is there value in an idea the MPU once put forward of seats reserved for health professionals but elected by the whole electorate? If so where they should be – in the Health and Well Being Boards? On governing bodies? In a Health Assembly advising Parliament? As a major element of Clinical Senates?

Should democratic control of providers be through Governors or through Health & Well Being Boards?

Do we favour Neighbourhood Health Committees?

How do we overcome the problem that the political system under-represents children, disabled people, parents of young children, and older people (all of them significant groups for the NHS) Is there a place for representatives elected by constituencies which reflect specific health needs e.g. older people, women of reproductive age, people on chronic disease registers? If so where is that place? Should it be on health and well being boards or on governing bodies or on councils or in a National Health Assembly?

Chapter 7 THE BODIES PROVIDING NHS SERVICES SHOULD HAVE A SOCIAL AND PROFESSIONAL ETHOS. COMPETITION WITHIN THE NHS TO BE MODIFIED IN RECOGNITION OF THE DISTORTIONS OF THE HEALTHCARE MARKET

This is the key chapter.

We need to use it frame an innovative socially accountable professional ethos.

It needs to steer its way past the rocks of EU competition law. For that reason we need to define the system as one of public provision and make social accountability and professionalism a social objective.

In our justification of this chapter we will need to explain the reasons healthcare markets don’t work.

Consumers depend on the advice of providers
Consumers are unable to afford catastrophic costs so risk sharing is necessary (either via the state or via insurance. This creates “moral hazard” (a belief in a right to the best rather than the optimal).
Commissioning authorities acting as makers of the market are not a solution to this because of the difficulty in measuring performance adequately. It is easier to make profits by exploiting information anomalies than by improving services.
Hospitals and pharmaceuticals both have downwardly sloping cost curves and high entry costs so, according to Pigou’s theorem, a simple market will clear with unused capacity and high prices. (Adjustment of this market leads to some other versions of Pigou’s theorem such as that which applies to free and unrationed services where the market clears by reducing quality and we need to be aware of those as well – particularly in our policies towards waiting times

How do we promote innovation and dissemination of good practice without competition?

How do we define a social and professional ethos?

Chapter 8 THE PRIME RESPONSIBILITY OF NHS CARE TO BE TO ITS PATIENTS AND OF NHS PUBLIC HEALTH TO BE TO THE POPULATIONS IT SERVES

We need to protect the freedom to give honest advice.

Chapter 9 THE DISTINCTION BETWEEN HEALTH CARE AND SOCIAL CARE TO BE ABOLISHED

We obviously want to do this with social care being provided according to need not ability to pay? How do we fund it? If we don’t have charges how do we empower choice – after all social care represents the kind of lifestyle choice that young, able bodied people expect to make for themselves?

How do we ensure more attention to reablement both in health care and social care?

Chapter 10 THE IMPACT OF GOVERNMENT POLICY UPON HEALTH TO BE FULLY ASSESSED AND TAKEN INTO ACCOUNTS

There should be a Public Health Director in each Government Dept who should write a report to Parliament on the department’s contribution to health.

Chapter 11 ECONOMIC MARKETS TO BE SUBJECT TO HEALTH REGULATION

What principles should underlie health regulation of economic markets? Externality charges? Controls on marketing? Controls on pricing? Direct input to corporate decisions?

When should these come into effect? Whenever there is a health impact? Whenever there is a health impact and a market distortion? Whenever there is a serious health impact?

How should we apply them to tobacco? Alcohol? Cars? Food? Heroin and cocaine? Cannabis?

Chapter 12 REDRESS AND APPEALS

Legal costs for clinical negligence absorb large amounts of NHS resources. The NHS Redress Scheme has not been implemented. The BMA advocated a Redress Appeals Tribunal to take clinical questions into a case-conference inquisitorial mode rather than a legal adversarial model. The MPU working from the same concept advocated a Clinical Division of the High Court

Chapter 13 MEDICAL CONFIDENTIALITY

Data protection laws manage simultaneously to fail effectively to protect medical confidentiality yet also obstruct necessary data flows. For medical data should we replace the first two data protection principles with principles of medical confidentiality derived from traditional ethical codes.

Chapter 14 FINAL, TRANSITIONAL AND CONSEQUENTIAL PROVISIONS

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