NHS EXPERT LEGAL ADVICE
Earlier in the summer, 3,652 38 Degrees members from across the UK donated to pay for a legal team to get to the bottom of Andrew Lansley's plans for our NHS.
For the last two months our independent legal team has been hard at work examining the government's NHS plans.
This page summarises all they've found - it's grim reading. If you want to find out more you can download the entire legal advice in the right hand column. Once you've read it don't forget to email your MP and urge them to take action to save our NHS
BACKGROUND
In July 2011, 38 Degrees members donated to fund independent legal advice on the implications of the government's proposals to change the NHS in England. 38 Degrees engaged Harrison Grant solicitors and the specialist barristers Stephen Cragg and Rebecca Haynes to give their legal opinions on two aspects of the Health and Social Care Bill: The removal of Secretary of State for Health’s Duty to provide or secure provision of NHS services and the impact of competition and procurement law on the NHS.
This document summarises some key findings. The full legal opinions and executive summaries are available to download in the right-hand column.
1. REMOVING THE SECRETARY OF STATE’S DUTY TO PROVIDE
What our lawyers have identified within the Health and Social Care Bill:
The bill will remove the duty of the Secretary of State to provide or secure the provision of health services which has been a common and critical feature of all previous NHS legislation since 1946. This is the means by which Parliament ensures the NHS delivers what the public want and expect. Furthermore, a “hands-off clause” will severely curtail the Secretary of State's ability to influence the delivery of NHS care to ensure everyone receives the best healthcare possible.
What this could all mean:
No longer a National Health Service
The duty, that Parliament has given the Health Secretary, for ensuring that the NHS provides the service that people need will be lost and the NHS will from here on in simply be little more than a series of quasi-independent commissioning entities and providers, basically free to get on with the job
Loss of Accountability – The Government washes its hands of the NHS
Removing the Secretary of State’s legal duty to provide or secure provision of health services, and introducing a "hands-off clause", significantly reduces democratic accountability for the NHS. The responsibility for securing the provision of healthcare services will lie with unelected commissioners who will only be accountable to an unelected national quango. The bill will make it impossible for the Secretary of State to direct that certain services are available and difficult for the Secretary of State to step in if these groups deliver poor healthcare to the local community. These changes would shift the main responsibility to unelected officials, representatives of private companies and GPs.
Loss of Accountability – Local representatives and health watchdogs lose their right to appeal
Because the Government is removing the Secretary of State’s duty to ensure the NHS delivers an appropriate service, appeals from locally elected council bodies and health watchdogs will no longer be decided by the Secretary of State but – if any rights of appeal survive – by a national quango.
Postcode lottery
Because of changes in the bill there is a real risk of an increase in the “postcode lottery” nature of the delivery of some NHS services. The power to choose what health services are closed or improved in a local area will be passed on to local unelected bodies with little scope for the government to intervene. This will mean patients can no longer expect the government to ensure a consistent level of healthcare regardless of where they live.
2. OPENING THE NHS UP TO COMPETITION LAW
What our lawyers have identified within the Health and Social Care Bill:
The Bill contains a number of measures which will increase competition within the NHS at the expense of collaboration and integration and/or make it almost inevitable that UK and EU competition law will apply as if it were a utility like gas or telecoms. This includes:
giving Monitor the duty to eliminate so-called “anti-competitive” behaviour
removing the limit on the amount of income NHS hospitals can earn from private health services
handing significant new procurement responsibilities to the new Clinical Commissioning Groups
permitting these new groups to outsource commissioning work to private companies
writing additional rules on competition into the law and making Monitor enforce them
What this could all mean:
Exposing the NHS to UK and EU Competition Law
Taken together, these changes increase the likelihood of NHS services being found by the courts to fall within the scope of UK and EU competition law. The likelihood of this is further increased by other government NHS policies, for example the extension, announced in July 2011, of the right of Any Qualified Provider to be given a contract to deliver health services.
Costly and complex procurement procedures
The new commissioning groups will be subject to EU procurement rules whenthey commission local health services. This is likely to be costly, given the likely larger numbers of commissioning groups as compared to PCTs now and our Counsel warns that it appears the government have not planned for this significant increase in cost. Furthermore, it is not clear that the commissioning groups have the necessary procurement expertise to deal with the complex procurement process and to avoid legal action from disgruntled private healthcare providers. This could mean that the NHS ends up spending a lot of time and money fighting legal action instead of investing in patient care. Or worse, it could mean they are reluctant to commission any services for fear of being sued.
Fertile ground for private health companies (and their lawyers)
Companies that bid unsuccessfully for NHS contracts will be able to challenge commissioning decisions in the courts. Private health providers have far more expertise and legal capacity than either public bodies or charities, and so are likely to be best placed to exploit these laws. Litigation could be time-consuming and costly for commissioning bodies.
Opening our NHS to private companies - privatisation by stealth
These plans will lead to a system geared heavily in favour of private companies. The legislation does not currently contain measures to stop:
private companies being contracted to provide commissioning services to consortia and therefore profiting from spending multi-million-pound health budgets
private companies poaching services in a way which undermines the ability of the NHS to deliver essential services like Intensive Care Units, A&E, emergency cover, teaching, training and research.
Thursday, 1 September 2011
The Guardian 1 Sept 2011: Doctor must speak out against NHS privatisation
Doctors' leaders need to speak out on the privatisation of the NHS
Now legal expert opinion has exposed Lansley's health and social care bill, medical leadership cannot stay silent
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Comments (24)
Jacqueline Davis
guardian.co.uk, Thursday 1 September 2011 16.02 BST
Article history
Protesters march against proposed reforms to the National Health Service earlier this year. Photograph: Janine Wiedel/Alamy
Last week, David Cameron claimed with astonishing chutzpah but complete lack of evidence that health professionals were on board with the health and social care bill. In fact, a back of the envelope calculation suggests that the number of doctors who actively support it (as opposed to those who have had to get involved with it) is in single figures. Surveys and conference motions show that the public and health professionals have no confidence in the bill and want it scrapped. So why is the legislation going for its third reading next week, with such indecent haste that MPs will hardly have had time to shake the sand from their shoes?
Such is the dislike and distrust of the bill that the campaigning group 38 Degrees easily raised thousands of pounds from the public to pay for legal opinion on key issues in it. The recently published conclusions are essential reading and are completely at odds with the government's bland reassurances.
They found that the bill does indeed "remove the duty of the secretary of state to provide or secure the provision of health services which has been a common and critical feature of all previous NHS legislation since 1946". Furthermore, a "hands-off clause" will "severely curtail the secretary of state's ability to influence the delivery of NHS care to ensure everyone receives the best healthcare possible". They conclude the government can now wash its hands of the NHS, while the likelihood of a postcode lottery increases and local accountability decreases.
They also conclude that the bill "will increase competition within the NHS at the expense of collaboration and integration and/or make it almost inevitable that UK and EU competition law will apply as if it were a utility like gas or telecoms". So despite the coalition's repeated denials, this legal opinion believes that "these plans will lead to a system geared heavily in favour of private companies".
The government has lied about it, and the public and profession don't want it – so why are we still threatened with it? One answer may be that while grassroots doctors have been clear about their antipathy to it we have been failed thus far by our leaders who have been keeping a low profile. Their voice, which could be immensely influential, has been missing.
With the honourable exception of the Royal College of General Practitioners, we've heard remarkably little from the royal colleges of medicine thus far. This is disappointing, given their remit is to oversee quality, standards, teaching and training, all of which are under threat from this bill. They have undoubtedly submitted written responses to the government's proposals but attempting to negotiate and influence in this way presupposes politicians who will listen. The government isn't interested in professional advice unless we toe the line. Andrew Lansley didn't bother to meet Sir Roger Boyle, the highly effective national director for heart disease and stroke, until he tried to sack him for speaking out of turn.
Also keeping well below the parapet is the BMA, which has been given a clear mandate from its members to campaign for the bill to be withdrawn. It continues to hedge its bets, still lobbying to obtain amendments when it is clear that no amendment could possibly alter the nature of a bill that has privatisation stamped through its core.
Analysis and lobbying are fine, but when they fail it is time for action. They have manifestly failed, with the "amended" bill still a recipe for privatisation. The bill is already on its knees, with opposition gathering both inside and outside parliament and the major health unions campaigning against it. We now need strong medical leadership to issue a joint statement which would deliver the coup de grace. They have the power, the authority and the mandate. What are they waiting for?
Now legal expert opinion has exposed Lansley's health and social care bill, medical leadership cannot stay silent
reddit this
Comments (24)
Jacqueline Davis
guardian.co.uk, Thursday 1 September 2011 16.02 BST
Article history
Protesters march against proposed reforms to the National Health Service earlier this year. Photograph: Janine Wiedel/Alamy
Last week, David Cameron claimed with astonishing chutzpah but complete lack of evidence that health professionals were on board with the health and social care bill. In fact, a back of the envelope calculation suggests that the number of doctors who actively support it (as opposed to those who have had to get involved with it) is in single figures. Surveys and conference motions show that the public and health professionals have no confidence in the bill and want it scrapped. So why is the legislation going for its third reading next week, with such indecent haste that MPs will hardly have had time to shake the sand from their shoes?
Such is the dislike and distrust of the bill that the campaigning group 38 Degrees easily raised thousands of pounds from the public to pay for legal opinion on key issues in it. The recently published conclusions are essential reading and are completely at odds with the government's bland reassurances.
They found that the bill does indeed "remove the duty of the secretary of state to provide or secure the provision of health services which has been a common and critical feature of all previous NHS legislation since 1946". Furthermore, a "hands-off clause" will "severely curtail the secretary of state's ability to influence the delivery of NHS care to ensure everyone receives the best healthcare possible". They conclude the government can now wash its hands of the NHS, while the likelihood of a postcode lottery increases and local accountability decreases.
They also conclude that the bill "will increase competition within the NHS at the expense of collaboration and integration and/or make it almost inevitable that UK and EU competition law will apply as if it were a utility like gas or telecoms". So despite the coalition's repeated denials, this legal opinion believes that "these plans will lead to a system geared heavily in favour of private companies".
The government has lied about it, and the public and profession don't want it – so why are we still threatened with it? One answer may be that while grassroots doctors have been clear about their antipathy to it we have been failed thus far by our leaders who have been keeping a low profile. Their voice, which could be immensely influential, has been missing.
With the honourable exception of the Royal College of General Practitioners, we've heard remarkably little from the royal colleges of medicine thus far. This is disappointing, given their remit is to oversee quality, standards, teaching and training, all of which are under threat from this bill. They have undoubtedly submitted written responses to the government's proposals but attempting to negotiate and influence in this way presupposes politicians who will listen. The government isn't interested in professional advice unless we toe the line. Andrew Lansley didn't bother to meet Sir Roger Boyle, the highly effective national director for heart disease and stroke, until he tried to sack him for speaking out of turn.
Also keeping well below the parapet is the BMA, which has been given a clear mandate from its members to campaign for the bill to be withdrawn. It continues to hedge its bets, still lobbying to obtain amendments when it is clear that no amendment could possibly alter the nature of a bill that has privatisation stamped through its core.
Analysis and lobbying are fine, but when they fail it is time for action. They have manifestly failed, with the "amended" bill still a recipe for privatisation. The bill is already on its knees, with opposition gathering both inside and outside parliament and the major health unions campaigning against it. We now need strong medical leadership to issue a joint statement which would deliver the coup de grace. They have the power, the authority and the mandate. What are they waiting for?
Sunday, 28 August 2011
Weekly bulletin number 18
Welcome to the KONP-NE weekly bulletin.
There is another "awareness" session by one of the consortia at Burradon Family Fun day, Burradon Rec. centre on Friday Sep 2nd and we should aim to have a presence there with flyers, banner etc.. Perhaps we can fix this at our meeting on 1st Sept.
These links lead us to other articles of interest: http://www.pulsetoday.co.uk/newsarticle-content/-/article_display_list/12573613/gp-peer-to-table-amendments-to-wreck-health-bill http://www.unison.org.uk/asppresspack/pressrelease_view.asp?id=2412 (Thanks Helen)
Please also find two attachments forwarded by Helen.
I have attached again the GP petition leaflet and would urge everyone who has not yet used it to get it signed at their GP surgery.
Steve says: Details of a meeting organised by N.Tyneside LINK 'Will NHS changes bring better health and Social care?' Register on 0191 643 2623 or link@voda.org.uk
Thursday 29th September The Langdale Centre Howdon 10-3pm
(Steve's already registered; I'll be away in Rome storytelling at Raccontamiunastoria Festival 2011)
Ed has now set up the KONP-NE blog: http://konp-ne.blogspot.com/
Just to remind you, here again are future diary dates:
Thursday 1st SEPT – OPEN SPACE CAMPAIGNING - from 7 p.m. in St.John's Church Hall near Central Station.
Thursday 8th Sept. Gateshead: see leaflet download
2ND WEEK OCT – PUBLIC MEETING, END OCT/BEG NOV – RALLY NEWCASTLE details to be announced.
Don't forget that, thanks to Pete, we have a fan page at
http://www.facebook.com/pages/Keep-Our-NHS-Public-North-East/142954425772617?sk=wall
Well worth visiting regularly; don't wait for a prompt. New stuff appears there all the time.
I get a fair amount of relevant postings on Facebook (many of them, but not all, duplicated on the KONP NE Facebook page) so any of you who are on Facebook can make me a friend in order to access them.
If you have replies to anything here or items to be included in the next bulletin or feedback responses (good or bad - we need to know) please send them to me at martin.manasse@gmail.com If you just hit the reply button your replies will go to everyone and could cause e-mail overload.
Thanks.
Martin
- Posted using BlogPress from my iPad
There is another "awareness" session by one of the consortia at Burradon Family Fun day, Burradon Rec. centre on Friday Sep 2nd and we should aim to have a presence there with flyers, banner etc.. Perhaps we can fix this at our meeting on 1st Sept.
These links lead us to other articles of interest: http://www.pulsetoday.co.uk/newsarticle-content/-/article_display_list/12573613/gp-peer-to-table-amendments-to-wreck-health-bill http://www.unison.org.uk/asppresspack/pressrelease_view.asp?id=2412 (Thanks Helen)
Please also find two attachments forwarded by Helen.
I have attached again the GP petition leaflet and would urge everyone who has not yet used it to get it signed at their GP surgery.
Steve says: Details of a meeting organised by N.Tyneside LINK 'Will NHS changes bring better health and Social care?' Register on 0191 643 2623 or link@voda.org.uk
Thursday 29th September The Langdale Centre Howdon 10-3pm
(Steve's already registered; I'll be away in Rome storytelling at Raccontamiunastoria Festival 2011)
Ed has now set up the KONP-NE blog: http://konp-ne.blogspot.com/
Just to remind you, here again are future diary dates:
Thursday 1st SEPT – OPEN SPACE CAMPAIGNING - from 7 p.m. in St.John's Church Hall near Central Station.
Thursday 8th Sept. Gateshead: see leaflet download
2ND WEEK OCT – PUBLIC MEETING, END OCT/BEG NOV – RALLY NEWCASTLE details to be announced.
Don't forget that, thanks to Pete, we have a fan page at
http://www.facebook.com/pages/Keep-Our-NHS-Public-North-East/142954425772617?sk=wall
Well worth visiting regularly; don't wait for a prompt. New stuff appears there all the time.
I get a fair amount of relevant postings on Facebook (many of them, but not all, duplicated on the KONP NE Facebook page) so any of you who are on Facebook can make me a friend in order to access them.
If you have replies to anything here or items to be included in the next bulletin or feedback responses (good or bad - we need to know) please send them to me at martin.manasse@gmail.com If you just hit the reply button your replies will go to everyone and could cause e-mail overload.
Thanks.
Martin
- Posted using BlogPress from my iPad
NHS Reforms: Are They Within The Law? letter printed in the Journal 23rd aug.
With regard to the article in the Newcastle Journal, Tuesday August 16th entitled:
‘Government Under Fire Over Care Plans’.
In that article attention was drawn to concerns about the establishment of private bodies calling themselves ‘Clinical Commissioning Groups’. A few months ago, before the bill stalled in Parliament, these were calling themselves: GP Consortia.
The Government claims that these private bodies or companies will take over the management of health services once their NHS bill has been passed by Parliament.
The point with regard to the Law is, it hasn’t. The Health and Social Care bill has stalled due to lack of political support and therefore, it is not Law.
So who is commissioning these privateers? There are 14 such across our region.
On what basis is money being spent? How much has been spent so far? And, are these actions lawful?
These questions were asked at the last meeting of the North of Tyne Primary Care Trust that was held on: Tuesday 26th July at the NHS Trust’s HQ on the Great Park, North Gosforth. The Chair at that meeting advised that: “they had to put these bodies in place in order to prepare for the changes in the bill once it becomes law”.
But that did not answer the point about the unlawfulness and whether funding and establishing such groups before the bill has been passed by Parliament, is acting within the Law?
Next Meeting: Thursday 1st September at
St John’s Church Hall, Grainger St, Newcastle. 7.pm.
Secretary Martin Manasse.
- Posted using BlogPress from my iPad
‘Government Under Fire Over Care Plans’.
In that article attention was drawn to concerns about the establishment of private bodies calling themselves ‘Clinical Commissioning Groups’. A few months ago, before the bill stalled in Parliament, these were calling themselves: GP Consortia.
The Government claims that these private bodies or companies will take over the management of health services once their NHS bill has been passed by Parliament.
The point with regard to the Law is, it hasn’t. The Health and Social Care bill has stalled due to lack of political support and therefore, it is not Law.
So who is commissioning these privateers? There are 14 such across our region.
On what basis is money being spent? How much has been spent so far? And, are these actions lawful?
These questions were asked at the last meeting of the North of Tyne Primary Care Trust that was held on: Tuesday 26th July at the NHS Trust’s HQ on the Great Park, North Gosforth. The Chair at that meeting advised that: “they had to put these bodies in place in order to prepare for the changes in the bill once it becomes law”.
But that did not answer the point about the unlawfulness and whether funding and establishing such groups before the bill has been passed by Parliament, is acting within the Law?
Next Meeting: Thursday 1st September at
St John’s Church Hall, Grainger St, Newcastle. 7.pm.
Secretary Martin Manasse.
- Posted using BlogPress from my iPad
Tuesday, 9 August 2011
Weekly bulletin 15
Welcome to the KONP-NE weekly bulletin, a day later than usual because there was a meeting last night but unfortunately I was at the last minute unable to get there. The minutes will be published in next week's bulletin.
On Thursday last week two Davids, Paul and I were involved in the first of (hopefully) more community radio broadcasts courtesy of NE1 FM. The primary content was around the care service problems but I was interviewed about KONP-NE so we got a good mention. Many congratulations to the two Davids, neither of whom has done anything like this before, for a lively and interesting début. We look forward to the next. If there are others who might be interested in helping to make such programmes, do please let me know and I will pass it on.
Apart from the above, this week has been very quiet so just a small bulletin this time.
Just to remind you, here again are future diary dates:
1ST SEPT – OPEN SPACE CAMPAIGNING
2ND WEEK OCT – PUBLIC MEETING, END OCT/BEG NOV – RALLY NEWCASTLE
Don't forget that, thanks to Pete, we have a fan page at
http://www.facebook.com/pages/Keep-Our-NHS-Public-North-East/142954425772617?sk=wall
Well worth visiting regularly; don't wait for a prompt. New stuff appears there all the time.
I get a fair amount of relevant postings on Facebook (many of them, but not all, duplicated on the KONP NE Facebook page) so any of you who are on Facebook can make me a friend in order to access them.
If you have replies to anything here or items to be included in the next bulletin or feedback responses (good or bad - we need to know) please send them to me at martin.manasse@gmail.com If you just hit the reply button your replies will go to everyone and could cause e-mail overload.
Thanks.
Martin
On Thursday last week two Davids, Paul and I were involved in the first of (hopefully) more community radio broadcasts courtesy of NE1 FM. The primary content was around the care service problems but I was interviewed about KONP-NE so we got a good mention. Many congratulations to the two Davids, neither of whom has done anything like this before, for a lively and interesting début. We look forward to the next. If there are others who might be interested in helping to make such programmes, do please let me know and I will pass it on.
Apart from the above, this week has been very quiet so just a small bulletin this time.
Just to remind you, here again are future diary dates:
1ST SEPT – OPEN SPACE CAMPAIGNING
2ND WEEK OCT – PUBLIC MEETING, END OCT/BEG NOV – RALLY NEWCASTLE
Don't forget that, thanks to Pete, we have a fan page at
http://www.facebook.com/pages/Keep-Our-NHS-Public-North-East/142954425772617?sk=wall
Well worth visiting regularly; don't wait for a prompt. New stuff appears there all the time.
I get a fair amount of relevant postings on Facebook (many of them, but not all, duplicated on the KONP NE Facebook page) so any of you who are on Facebook can make me a friend in order to access them.
If you have replies to anything here or items to be included in the next bulletin or feedback responses (good or bad - we need to know) please send them to me at martin.manasse@gmail.com If you just hit the reply button your replies will go to everyone and could cause e-mail overload.
Thanks.
Martin
Monday, 25 July 2011
Welcome to the KONP-NE weekly bulletin - a day early this week to tell you how to get to the NHS training session tomorrow 21st July.
Pete says:
There is a room we can use from 7pm. However it is a bit out of the way. I suggest meeting up at the entrance to the Medical School and I will direct people.
Helen has sent the following link about the latest NHS "privatisation" plans: http://www.guardian.co.uk/society/2011/jul/19/nhs-services-open-to-competition
We also have, attached, via Wendy Savage and Helen, the latest version of the dreaded Bill.
Jim, Paul, Pete and I are planning to attend the public PCT meeting, now moved to 26 July. Papers are available at http://www.northoftyne.nhs.uk/about-us/the-board-the-pec/board-papers/joint-meeting-of-the-boards-of-newcastle-primary-care-trust-north-tyneside-primary-care-trust-and-northumberland-care-trust
Just to remind you, here again are the future diary dates as set out in the recent minutes:
Don't forget that, thanks to Pete Campbell, we have a fan page at
http://www.facebook.com/pages/Keep-Our-NHS-Public-North-East/142954425772617?sk=wall
Well worth visiting regularly; don't wait for a prompt. New stuff appears there all the time.
I get a fair amount of relevant postings on Facebook (many of them, but not all, duplicated on the KONP NE Facebook page) so any of you who are on Facebook can make me a friend in order to access them.
If you have replies to anything here or items to be included in the next bulletin or feedback responses (good or bad - we need to know) please send them to me at martin.manasse@gmail.com If you just hit the reply button your replies will go to everyone and could cause e-mail overload.
Thanks.
Martin
Pete says:
There is a room we can use from 7pm. However it is a bit out of the way. I suggest meeting up at the entrance to the Medical School and I will direct people.
Helen has sent the following link about the latest NHS "privatisation" plans: http://www.guardian.co.uk/society/2011/jul/19/nhs-services-open-to-competition
We also have, attached, via Wendy Savage and Helen, the latest version of the dreaded Bill.
Jim, Paul, Pete and I are planning to attend the public PCT meeting, now moved to 26 July. Papers are available at http://www.northoftyne.nhs.uk/about-us/the-board-the-pec/board-papers/joint-meeting-of-the-boards-of-newcastle-primary-care-trust-north-tyneside-primary-care-trust-and-northumberland-care-trust
Just to remind you, here again are the future diary dates as set out in the recent minutes:
- 21ST JULY MEDICAL SCHOOL – TRAINING,
- 4TH AUGUST – ST.JOHNS KONP ,
- 1ST SEPT – OPEN SPACE CAMPAIGNING
- 2ND WEEK OCT – PUBLIC MEETING,
- END OCT/BEG NOV – RALLY NEWCASTLE
Don't forget that, thanks to Pete Campbell, we have a fan page at
http://www.facebook.com/pages/Keep-Our-NHS-Public-North-East/142954425772617?sk=wall
Well worth visiting regularly; don't wait for a prompt. New stuff appears there all the time.
I get a fair amount of relevant postings on Facebook (many of them, but not all, duplicated on the KONP NE Facebook page) so any of you who are on Facebook can make me a friend in order to access them.
If you have replies to anything here or items to be included in the next bulletin or feedback responses (good or bad - we need to know) please send them to me at martin.manasse@gmail.com If you just hit the reply button your replies will go to everyone and could cause e-mail overload.
Thanks.
Martin
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