Earlier this month, documents were laid in Parliament relating to one of the most controversial aspects of the Health and Social Care Act. Ostensibly, the Section 75 regulations are intended to 'ensure good procurement practice', but they have given rise to concerns about just how far the Act has opened up the NHS in England to competition.
The regulations follow considerable consultation with, and lobbying by, the BMA and other unions. While the Health and Social Care Bill was going through Parliament, we proposed amendments to the relevant clauses on competition. When the subsequent draft regulations were published for consultation last July we raised concerns in a detailed response, particularly about the continuing potential for conflicts of interest between commissioners and providers.
The BMA also submitted a response to the consultation as part of the wider NHS trade union group which made clear our opposition to the overall direction of travel set by the Act, and our preference for the NHS as ‘preferred provider’ as well as some specific points about the detail of the regulations.
The government has stated that the regulations seek to 'enshrine the principle that it is for commissioners to decide how to improve the quality and efficiency of services, and in doing so they should consider integration, competition and extending patient choice as possible means to attaining those benefits for patients'. Not great — given increased competition brings huge risks to the NHS — but better than where we were at the start of the Bill when there was no mention of integration, and no assurances that commissioners could determine the best approach for their populations.
However, differing legal analyses of the impact of the regulations in practice have emerged and there are growing concerns that commissioners — the clinical commissioning groups — may be forced to open up provision of almost all services to a market of providers.
Given this uncertainty about such an important issue, we have added our voice to calls for the Government to clarify further the scope of the regulations through a parliamentary debate. Debates of this sort are unusual but I think it’s in everyone’s interests to get this before Parliament as soon as possible.
Mark Porter is chair of BMA Council
Mark Porter's letter to Health Minister, Earl Howe, following publication of the revised regulations (11 Mar 2013, PDF)
Mark Porter's letter to the Lords Secondary Legislation Scrutiny Committee on the The National Health Service (Procurement, Patient Choice and Competition) Regulations 2013 (26 Feb 2013, PDF)
BMA briefing on Sections 75-77 regulations on procurement, patient choice and competition, March 2013
The BMA needs to do more than 'make clear to the government', our opposition to 'the direction of travel'. We need to level with the whole public - at long last - with clarity and with force, making the case for democracy and of course for Coalition abandonment of the current direction, at best harmfully clumsy, manifestly non-democratic, and in fact anti-democratic.
In recent retirement, I write tortured if not damned - in good company but it seems alone - from four decades of awareness and four decades of failure, unable to persuade significant others of the social medicine prescription for democracy.
We share the same essential faiths, we exist and we care. Beyond that bond of caring, our hearing of cries and responses in the moment, there is a higher level of analysis, one that we tend to 'suffer' and to struggle against, rather than 'engage with'. It is of course the allocation of resources, begging the questions: 'Of, For, By Whom?'
Care is evaporating, in the furnace of competition, in the 'bad enough' economic crises that attend life in material conflict of interest, in the outbreaks of 'desired war' madness, perhaps soon in terminal catastrophe. We are seeing our society, our 'NHS', our profession, our colleagues, our patients, our families, and our hopes for others to come, all ground down, by the outworking of fear and greed.
It comes almost as mockery, to be asked to contribute 'stories' to help deflect the tsunami of chaotic change now beyond avoidance. Too late to undo harm, the wistful words of Chief Medical Officers in retirement: only the frank commitment of the BMA - and of the Royal Colleges and the GMC - to resource allocation in true democracy, might save the day for People and Planet, or at least the honour of the medical profession.
'We' (I include lucky pensioners) need not, SHOULD not, abandon posts, tear out hair, don sackcloth, or 'go sell all to give to the poor that they might squander', but we MUST study, understand and promote the case for Agreed Equal Partnership, across society, enduring income-share equality being the only logical viable basis for the equality of freedom, of speech and conduct, upon which real democracy depends.
Too many the stories that could be told, of women let down by hapless GPs, of rescue by full-range Family Planning expertise, of waves of attack from abject central 'policy' shambles and worse local 'management', of long resistance to the atomisation of holistic care, of death-throes from the cluster-bombing of a dream,
but you know the tale, in part the consequence of medical care 'priced out of the market', our duty to defend recruitment and retention 'against The City'.
Heedless of actual and opportunity cost, this car-crash at first slow is accelerating into the opposite of the 'change of culture' we think to toy with or 'enforce'. Tragedy does not nearly meet the case.
I see that the regulations (S1257) under section 75 of the NHS Act, have now been rewritten. I find that contrary to what Nick Clegg told me in a recent email, the rewritten regulations do not remove pressure on Commissioners to put services out to competition. The unclear regulations provide ample scope for legal challenges from private sector providers if commissioners do not put all contracts out to tender from private providers of health care. The NHS was called into being by Winston Churchill who commissioned the Beveridge Report. Beveridges recommendations were diluted by Aneurin Bevan, but the NHS was eventually established and has been subjected to constant attempts in the last 20 years to bring back the pre-Beveridge shocking state of the nation's health and social affairs. Please do not not stand by and see Churchill's unworthy successors deal it a death blow.