Andrew Lansley's Health and Social Care Act, which came into effect on 1 April, had a troubled passage through parliament, including an unusual legislative "pause". This was to allow the government time to "listen" to its many critics, including most healthcare professionals and a majority of the public, who believed the plans would create and lock in rights for private providers to make a profit from the NHS. Lansley gave assurances that these voices had been heard, and that clinical commissioning groups would be able to decide "when and how competition should be used".
However, concerns about privatisation return to centre stage this week, when the regulations governing procurement and competition are debated in the Lords. As Lucy Reynolds, a research fellow at the London School of Hygiene and Tropical Medicine, puts it, if the act itself was the aircraft of privatisation, the structure that gave the idea the potential to fly, section 75 of the regulations is the engine that will allow take off.
The wording of section 75 requires commissioners to put out to tender everything that could be provided by an organisation other than the NHS. Private contractors are more likely to win these tenders than doctors, many of whom will never have even seen a tender notice. The regulations would create rights for commercial providers under rules originally devised by US corporations to promote their commercial interests. If implemented, they will drag the NHS into a competition law regime which creates obligations for governments to compensate private providers in the event of services being brought back into public provision.
The British Medical Association, along with many other health organisations including the Royal College of General Practitioners, are calling for the regulations to be withdrawn, as is the Labour party. The BMA says they must be replaced with new regulations that "unambiguously reflect previous government assurances that commissioners will not be forced to use competition when making their commissioning decisions", and explicitly state this principle.
As contracts are lost by public sector bidders, the teams that would have delivered them will be made redundant because funds will not be available to pay them. Under the proposed regulations, the government is not permitted to rescue such a service unless all other competitors are equally subsidised, in the interests of non-discrimination.
The competitive tendering forced by the current draft of the regulations requires a large amount of administration, which will divert funds away from frontline care. Thanks to market-driven changes that have already taken place administrative costs have risen to at least 16%, in contrast to the pre-1980 figure of less than 5%.
These regulations will act as the motor of the NHS privatisation by giving companies a mechanism to force their way into NHS service provision for the patients, procedures and places wherever they see profits. The likes of Care UK or Virgin Care will try to cherry-pick easy and profitable services – diagnostics, routine elective surgery, and simple treatments, for example – leaving behind A&E, care of the elderly, mental health services and anything that is unpredictably expensive.
Seeking the withdrawal and replacement of these regulations is not scaremongering; there is plenty of evidence that market-driven health services lead to limited choice, escalating costs, and reduced quality. There is no evidence to support the idea that competition breeds excellence in healthcare. According to Robert Evans, professor of economics at the University of British Columbia, market innovations in the NHS over the last 40 years have led to greater inequity, increased inefficiency, cost inflation and higher levels of public dissatisfaction. It is time to reject the market ideology that has plagued the NHS for more than a quarter of a century, wasting billions of pounds in the process.
