Maybe Not a Disaster?

The impending Lords debate on the S75 Regulations under the Health & Social Care Act will be like the many previous ones.  The argument to annul will be won but the usual spineless behaviour of the LibDems will ensure the Regulations pass anyway.  Is this the end of the NHS as we know it?

No.  Much of the doom saying ignores the reality of politics and of the way our NHS actually functions.  So we go on fighting the implementation.

Just to be absolutely clear – the whole point of the H&SC Act is to bring in a regulated market for healthcare, to promote competition wherever possible as a prelude to fundamentally changing the character of our NHS.  The Regulations just make that clear and are wholly consistent with the Act.

But – the Regulations are obviously and indisputably inconsistent with promises made by Ministers during the passage of the Bill/Act; that commissioners will be free to commission services in the best interest of patients – and they can avoid compulsory competitive tendering.  The LAW, once the Regulations are through, will mean commissioners can only avoid a competitive tender (or the Any Qualified Provider equivalent) if there is only one provider capable of meeting the requirements AND if the resulting contract meets the best value test AND the requirements of the EU procurement regime have been met (transparency and non discrimination etc).

This implies that legally almost all services should be subject to competitive tender but paradoxically it is clear that guidance from Monitor as regulator and (the hilariously renamed) NHS England as performance manager will be less explicit and offer the apparent opportunity for greater freedom.

The history of our NHS is that it does what it is told; it responds to the top down direction which is reinforced by shouting at people to come into line. NHS managers are not accustomed to looking at the law, and few lawyers are employed in the NHS.  So most commissioners will follow the guidance and assume that protects them from being shouted at (which it might) and from legal intervention (which it wont).

The political reality is that there is an election in 2015 that the Tories and LibDems could lose.  So will a private provider mount a challenge if it sees the legal opportunity created by S75 Regulations?  Do they want hero/pariah status when the whole political background might change dramatically fairly soon?  Maybe they will wait.  For almost a decade contracts between Foundation Trusts and PCTs could have been challenged but nothing has happened – no private provider saw their interest in such a challenge.

Finally who is out there likely to challenge?  We know many providers will be interested in bits of primary care, community care and back office function; and we know elective surgery is already under Patient Choice.  So who out there will want to try and enter the other parts of the NHS with some credible claim – for example to be able to provide say a full District General Hospital service?

So.  The likelihood is that the Regulations pass and not much happens.  We can campaign to prevent commissioners breaking ranks and apply pressure to protect NHS services through participation in the various new structures.

All is not lost.