Being Paranoid might just be good risk management

Are they out to get us?

I am always wary about views which begin from the supposition of a global, international or even just national conspiracy of some sort; a conspiracy against the NHS which has shaped health policy for years. Views which imply those in government (of both main parties) and in the Department and its outposts, and the advisors, and some Non Executive Directors in trusts (etc) are secretly working on a grand plan.  I have worked many places in DH and NHS and am convinced they are incapable of a) keeping anything secret and b) planning anything – but if it was a really good conspiracy then that is what you would find.

I liked the 1997 slogan of 24 hours to save the NHS; but despite the regular assertions that the NHS is dead, dying or gone our GP surgeries, acute hospitals and other outposts appear to function pretty much as usual – if anything the problems are from too little change, not change on a catastrophic scale.  At least from the 2010 election campaign the public position of even the Tory party is to support a universal taxpayer funded free at point of need NHS – they differ on how that can be “provided”.

But, and it’s a big but, there is no doubt as we pointed out over and again in 2010 and 2011 the Tory/Coalition Bill/Act can easily be seen to be the opening move towards not just a regulated market for the provision of healthcare services but the basis for a different system altogether with top ups, co-payments and with commissioners just as insurance holders – the shape and scale of services being determined not by planning but by the market for the personal budgets we will have to hold.  We could see the free bit of our NHS reduced to providing basic and emergency care only.

It is also true that for two decades those who advocate markets and competition have won the argument.  Privatisation as a bogey word has lost almost all its force with the public.  There has been an increase of private providers into the NHS but still only on a small scale and you have incidents of poor care and good care in both public and private organisations. Marketisation and the commissioner/provider split is blamed by some for everything that ever goes wrong in the NHS and PFI is blamed for all the financial woes.  The reality is more complicated.

We know the point of the Act was to move to a regulated market with competition at its heart, and we know that will open further opportunities for private providers and see the decline of public provision – it’s a one way street.  The guidance and regulations flowing from the Act have not changed that. Assurances which apparently fooled (some) GP commissioners, LibDems and Royal Colleges were meaningless.

The NHS has suddenly woken up to the realities around public procurement that local government had to adjust to more than a decade ago.  They cope daily with the kind of stuff the NHS appear incapable of understanding as the rather sad attempts by the Department of Health to construct regulations has shown.

Within the EU the presumption is in favour of public procurement through competitive processes (like competitive dialogue), and it must always meet requirements around transparency and non-discrimination.  What is unclear is what happens around the provision of a clinical service.  Pre 2003 when we had a more coherent NHS it was pretty safe to assume that arrangements between the PCTs and the NHS trusts were not proper legal contracts and so outside the scope of procurement law altogether.

Then we had Foundation Trusts which were connected to commissioners by legally enforceable real contracts which opened the door to challenges, but nothing much happened.  By 2010 with over half of provision through FTs there was still little sign of any challenges.  Obviously the conspirators were biding their time.  The most plausible explanation of why nobody challenged is because the stance of the then government and indeed its policy documents and guidance suggested they would support commissioners who acted sensibly, even if they simply renewed annual contracts with FTs.  The presumption was against having an EU competitive process. The preferred provider interlude should be seen as reinforcing that attitude. The policy was to have only a quasi or internal market within a managed system.  It was arguably inconsistent with EU directives but never tested in the courts.

Now we have a government which wants competition as the driving force, so that is the default – you have to have a competition unless you have a good reason not to.  To drive this home any dispute is taken away from the DH/NHS and given to an independent regulator which has a purpose to favour competition.

However, nothing has changed in EU land and the text of the regulations plus the recent assertions from the NHS Commissioning Board and Monitor say nothing much else has changed in guidance and policy terms.

Even if that were true it’s irrelevant – what matters is what commissioners think they are expected to do.  Will they take the risk of being challenged or will they do the easy (but expensive) thing of using tendering even if that just proves there are not suitable alternatives to current arrangements?

PCTs used to have a degree of protection so if they were challenged they would expect get some support if they had acted reasonably.  Now the opposite is true; each CCG is an island – autonomous and vulnerable.  CCGs are fledgling bodies without any noticeable expertise in the complex world of procurement; so they go to the Commissioning Support Units or to the usual suspects for advice.

You do not need to be paranoid to see the huge risk that transaction, contracting and procurement costs are going to be extensive – money taken out of care.  It is also obvious that there will be challenges and these will succeed.  All this opens further the route for private providers to come in and cherry pick potentially profitable services.  The use of any qualified provider is an easy option for commissioners for any service that has credible potential suppliers (AQP for A&E in London!).  It’s a one way street as any possibility of creating new NHS providers or even to adequately support any NHS provider which struggles are all gone.

How fast and for how long this happens depends a bit on us.  We can be activists within the system and try to slow things down.

How fast this demise takes place is arguable.  Most don’t think it will be quick but it will be inevitable unless we change government.