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It seems Simon Stevens and supporters are rallying around a need to form a consensus on what needs to be done about the NHS. After a period of traumatic disturbance, this might seem a laudable approach. And yet putting sticks in the sand, marking your territory, is not particularly helpful if you are unelected.
I dare say whichever party or parties come into office early this year, the issues about integrated care will have to be negotiated. I am less certain about how the NHS and social care are to be funded, in the absence of a clear debate about the extent to which social value bonds and private finance initiatives will continue. Whatever your take on the details of the 5 year forward view, it is hard to deny that the emphasis is managerial, with an emphasis on systems and processes.
A tweet which Phillip Blond, Director of ResPublica, once set one morning made me think about how non-centrist parties were the new “disruptive parties”. In other words, there’s been a reversal of roles. Whichever party can drag themselves away from the centre position to form a new settlement might scoop up.
There’s an element of nostalgia about where we have come from. It’s hard to deny the ‘feel good factor’ brought about by images such as this.
But the world we live in is a very different one.
I don’t think I’d particularly like to be graduate in the current environment, entering a world with poorer job security, having to pay off loans for university education, and so on.
And it’s a crying shame, that many of us have seen the NHS in this context.
It’s not a question of being hyperbolic about criticism. People in the communities which are referred to in the 5 year forward view are sick of their local hospitals (or A&E departments) shutting without warning in the name of reconfiguration.
I was personally aghast how little concern there is in the 5 year Forward View for the mental health of employees. I know from my own time working in busy district general hospitals and London teaching hospitals that the workload is incredibly stressful in acute medicine. None of this is helped by having low numbers of staff having to work at breakneck pace, while politicians and other hanger-ons talk about ‘compassion’. We know that the public have been recently ‘activated’ by the talk of tax evasion, and people buying influence in political parties. This discussion of greed and corruption seemed to have carved through the election morass as cleanly as a butter knife. While some people want low taxes, they simultaneously don’t want public services to be stripped of all funds. Social care has not been ring fenced since 2010, leaving a desperate situation with people not being discharged from hospital in a timely manner. But the need to fund social care is not simply about delayed discharges – social care is pivotal.
There’s absolutely no need to make the Secretary of State devoid of responsibility for the NHS, unless you literally only see the NHS as a fig leaf logo for other providers; or unless you see the role of Government to regulate at arm’s length a market. The Health and Social Care Act (2012) went badly wrong as nobody voted for it, and it did not have the support of the professionals (apart from the surgeons possibly) and the public. That Act of parliament did not have anything useful to say about quality of health and care. It was left up to Jeremy Hunt to rubbish bits of the NHS, without reference to the failing Keogh Trusts under his Government.
But I come back to how little care there is for the mental health of the workforce of the NHS. There has recently been discussion of whistleblowing in the NHS, but the solutions for this appear to have been a damp squib. And people have been rather late to the party in opining about whistleblowing in social care (including private nursing homes). And there are still staff in NHS hospitals who are being sent vexatious complaints through human resources, while the same human resources departments fail to educate their workforce on harassment, victimisation, direct discrimination, or making a public interest disclosure. And yet these are precisely the tools needed for hospital staff to fight their over zealous managers who are paid by results themselves.
The culture of the NHS will never be fixed whilst it ignores the mental health of its employees. We know of the suicides of people awaiting outcomes to their protracted investigation by the General Medical Council. We also know that sick doctors can be a danger to themselves, as well as their patients, and can feel totally unsupported.
The mental health of NHS staff should have been more prominent in the NHS Five Year Forward View apart from a few isolated mentions, and certainly there was no mention of how the NHS prefers outsourcing to the regulator to competent performance management.
The rather bitty and random way in which this topic was addressed is nothing other than vulgar.
The Day judgement reveals either the law needs correcting or public policy on junior doctors is unwell
Whilst the machinery of how the operations and strategy work in the NHS may leave many people baffled, even the hardened specialists, patient safety undoubtedly touches us all.
As you’d expect, all registered Doctors, including obviously those with a ‘national training number’ denoting the Doctor has been selected for the demanding higher specialist training, are regulated by the General Medical Council. The statutory duty of the General Medical Council is, inter alia, “to protect, promote and maintain the health, safety and well-being of the public”.
There is therefore a positive obligation on all registered Doctors to promote patient safety, and this includes speaking out on such matters if need be. The regulator’s official line is to be sympathetic to the concerns of “whistleblowers”, but there exists a sad litany of victims who have blown the whistle who have failed to achieve gainful employment ever again.
There has been much concern about whether the Public Interest Disclosure Act (1999) as a statutory instrument is essentially “fit for purpose”. A general consensus is that it, in fact, isn’t.
Benedict Cooper is an excellent article in the New Statesman explains how Chris Day’s specific case has come about.
“It all started one night back in January 2014. Day was working through the night on ICU at Queen Elizabeth Hospital, part of Lewisham & Greenwich NHS Trust. When two locum doctors failed to turn up to work on another ward, Day found himself dangerously stretched having to treat critically ill patients outside of ICU. Under what’s known as ‘protected disclosure’, he raised the matter and urged his manager to find locums ready to come in. It sounds innocuous enough – it’s been anything but since. Why? Because his case has revealed a major flaw in the system; a flaw that has cost him dearly. Unlike almost every other branch of the medical profession, junior doctors aren’t protected when they blow the whistle in the way Day did that night.”
The Chris Day is truly David v Goliath stuff. Health Education England, like the NHS in general, has access to powerful expensive corporate lawyers; and yet lawyers often talk of decisions being made ‘on public policy grounds’ referring, as the former Master of Rolls Lord Denning did, to “deep pockets” and “floodgates”. A consideration, albeit a pretty immoral one, is that Chris Day’s case might open other litigants to take action against Health Education England which has a huge budget.
The actual judgment is as follows.
For me, and I really do go into this with an open mind, the judgement was concerning as to how the decision-making of judgements occurs. There was, for me, a sense of reverse engineering of making the law fit the conclusion the Judge wanted to produce. This is a well known logical fallacy called “post hoc ergo propter hoc” fallacy.
The law always look behind the substance behind the form, so the English law is more interested in what the employment relationship is rather than what is called. It’d have been much more helpful for the Judge ‘to go back to basics’, in thinking about the nuts and bolts about the nature of Day’s daily work as well as his training, through the lens of the seminal Ready Mix Concrete v Minister for Pensions .
The Judge should not have got wound up in detail but should have sought to produce an accurate picture of Day’s daily duties.
This is indeed advised in Hall v Lorimer .
Nolan L.J. agreed with the views expressed by Mummery J. in the High Court where he said:
“In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person’s work activity. This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.
The process involves painting a picture in each individual case.”
The Judge then curiously pinned his reverse logic, which of course he is entitled to do as a lawyer of high standing, on what ‘parliament must have intended’.
This is, arguably, the most jaw dropping clause in the whole judgement.
But the law as presented is left with startling lacunae, if the Judge is definitely correct.
Take for example this observation from Day himself on Twitter:
@dr_shibley student nurse watching operation has career covered by whistleblowing law. Registrar performing it not covered.If judgment right
— Chris Day (@drcmday) March 13, 2016
This based on the issue that s.43(k) Employments Right Act gives protection for a student nurse watching the operation ‘whistleblowing’, but not the doctor himself on the Specialist Register doing the said operation.
Normally, even the most junior law students would be advised to seek out any statutory aids to help to guess what Parliament might have intended. But only one year previous to the Employment Rights Act (1999), parliament enacted what it thought was extensive protection for whistleblowers, including in the NHS, in the Public Interest Disclosure Act (1998) as discussed here. Therefore, the same parliamentarians, led by the first Blair executive, were responsible for both statutory instruments. It is therefore inconceivable that it could be intended that junior doctors in training would be given protection in one statutory instrument, but not the other.
Furthermore, in response to the lengthy well articulated submissions on behalf of Dr Chris Day concerning article 10, freedom of expression, the Judge provides barely any discussion at all. This dismissal of fundamental human rights, brought into our domestic law through the Human Rights Act (1999), also legislated for by that first Blair government, is staggering.
The Supreme Court recently had to correct the law as interpreted by the lower Courts on joint enterprise. It is not inconceivable that they will have to correct the lower courts again this time on the Day case. But it is an important policy point – that registered medical doctors in training, despite having a duty to promote patient safety, are not protected in doing so. At a point when Jeremy Hunt’s popularity arguably is at its lowest ebb, his special advisors could do no worse than to encourage Hunt to correct the legislation urgently, a low hanging fruit that would make a huge difference on principle even.
Edmund Burke wrote that “government is a contrivance of human wisdom to provide for human wants” (1790, Reflections on the Revolution in France).
In a lecture at the London School of Economics entitled, “What is the Welfare State? A Sociological Restatement”, given by David Garland, Professor of Sociology at NYU and Shimizu Visiting Professor at LSE Law, a treatise was elaborated where the “welfare state”, however-so defined, is a practical elaboration of systems to solve sociological needs dependent on a thriving economy. Prof Garland’s thesis is partly that pure capitalism can achieve such needs alone, and and one of the final slides is particularly eye-catching:
Scotland’s first minister has described the UK government’s “austerity economics” as “morally unjustifiable and economically unsustainable”. In a speech in London, Nicola Sturgeon recently said a Labour government would have to abandon “failed” austerity policies to win the support of SNP MPs. Ms Sturgeon revealed that the SNP would back £180bn more spending than the coalition government by 2020. What happens in Westminster affects what happens in Scotland. Irrespective of the issue of “English votes for English laws“, the UK Treasury gives a lump sum called a “block grant” to Scotland, Northern Ireland and Wales. It’s up to the devolved administrations to decide how they spend it. The grant to Scotland has been cut (slightly) as part of overall austerity programme.
What? It is alleged that McKinsey helped draft both the government’s £20bn “efficiency” savings and the pro-privatisation health bill, while at the same time selling consultancy services in the aftermath. McKinsey executives and former executives play prominent roles in the NHS regulator, Monitor, and in influential think tanks such as Cambridge Health Network, the King’s Fund and Nuffield Trust.
Jackie Ashley summed up McKinsey’s influence for the Guardian:
“What we are left with are the ambitious plans for the expansion of privately run provision, masterminded it seems by the management consultancy McKinsey, many of whose corporate clients will now bid for work inside the NHS. McKinsey is said to have earned nearly £14m from the government since the election, but this is a drop in the ocean compared with the business that private health organisations working with McKinsey now expect to gain.”
So what? In 2011, the Guardian reported the following:
“Yet the growing evidence from the NHS is that its frontline is being cut, and that NHS organisations are doing what they were told not to do – interpreting efficiency savings as budget and service cuts. While restricting treatments of limited clinical value – such as operations to remove unsightly skin – is uncontroversial, reducing patients’ access to drugs, district nurses, health visitors or forms of surgery they need to end their pain arouses huge concern.
This Guardian investigation detailed evidence of increased cuts – the cuts that, according to the government, should not have been happening – being implemented across a wide range of the NHS’s many care services. With £20bn due to be saved by 2015, and the NHS receiving only a 0.1% budget increase each year until then, experts predict that tough decisions – about the availability of services and treatments, staffing levels and which clinics and hospitals provide care – would become increasingly commonplace.
Meanwhile, across the pond, in September 2014, Obama issued new rules on the crackdown of ‘overseas tax evasion’, including new rules on “hopscotch” loans, new rules on “de-controlling”, limiting the use of the “cash box”, “skinny down” and spin versions. The confluence of activism politics and mainstream politics is an interesting one. Not once yesterday in his questions on tax yesterday in Prime Minister’s Questions did Ed Miliband mention the Occupy movement.
Labour’s posturing on tax avoidance doesn’t once mention @ukuncut. But that’s who put it on the agenda. Activism gets shit done.
— Ellie Mae O’Hagan (@MissEllieMae) February 8, 2015
The “efficiency savings” in the NHS, and broadly have cross party support. And yet there is a clear link between operating unsafe staffing (whether this is low actual numbers or inappropriate skills mix) and quality problems. David Cameron has been ordered to stop saying NHS spending is up; but he continues to disregard this. The multinational corporates have been very manipulative in framing the austerity narrative as the driver for change, in the case of the NHS in making ‘efficiency savings’. While Twitter appears to be populated by innovators perpetuating the meme ‘doing more for less’, there is an equal number of hardworking nurses who are exasperated about having to rush around with insufficient numbers of nurses in the Accident and Emergency or Medical Admissions Units. And of course, all main political parties have bought into the need for austerity.
But elsewhere the evidence is that austerity, rather than making things better, is making things worse.
Despite stringent cuts, Greek debt has actually increased as a proportion of Greek GDP during 2014, from 146% to 175%. Of course, even with falling debts levels, the significant reduction in GDP since 2009 will have meant that the ratio of debt to income will have actually risen. Voters recently handed power to Alexis Tsipras, the charismatic 40-year-old former communist who leads the umbrella coalition of assorted leftists known as Syriza. He cruised to an eight-point victory over the incumbent centre-right New Democracy party, according to exit polls and projections after 99% of votes had been counted. The result surpassed pollster predictions and marginalised the two mainstream parties that have run the country since the military junta’s fall in 1974.
“The sovereign Greek people today have given a clear, strong, indisputable mandate,”, according to Tsipras.
“Greece has turned a page. Greece is leaving behind the destructive austerity, fear and authoritarianism. It is leaving behind five years of humiliation and pain.”
Through chance and design, the upcoming general election on May 7th 2015 could be used, through a combination of English and non-English votes, to send a message on the degree to which austerity is acceptable by the voters for the NHS. Coming into this election, the media have been resolutely unsuccessful in engaging the electorate in a mature, sophisticated debate on whether they would be prepared more for a NHS not running with little capacity. However, the electoral arithmetic could mean that parties on the left reject the neoliberal agenda to creating a climate where it might be possible to create a NHS more in keeping with Bevan’s ideals after all.
There’s no “magic money tree”, except when you’re signing off HS3 on a ‘nod and a wink’ for £7 billion, or interventions in Iraq and Afghanistan for £30 billion.
As a piece of marketing, for Simon Stevens to set out a stall for the rôle of the NHS in a global economy, “the five year plan” was nice and succinct. As a piece of strategy, it is dreadful. It’s dreadful – even if you decide to take the view that health policy is entirely market-driven or “value-based”, and not in any way written through a sophisticated clinical prism.
The irony of a “five year plan” for the National Health Service is pretty quick to see. “Five year plans” were, of course, used by Stalinist Russia. Nazi Germany preferred ‘four year plans’ as a strategy for war readiness, in comparison.
It is reported that the “Five Year Forward View”, published last week by NHS England, is a collaboration between six leading NHS groups including Monitor, Health Education England, the NHS Trust Development Authority, Public Health England, the Care Quality Commission and NHS England.
And yet ironically the future of two of the contributing organisations is under doubt. In a fringe meeting earlier this at the Labour Party Conference, it was again mooted what the precise function of Monitor might be. This is because it is definite that an incoming Labour Party government, in its first Queen Speech, will repeal the Health and Social Care Act (2012), a much loathed piece of legislation. This leaves the precise functions of Monitor uncertain.
One possibility which Burnham is seriously contemplating is whether Monitor, if it continues to exist, serves to regulate the integration of services as would be expected in ‘whole person care’. Burnham intends to introduce ‘NHS preferred provider’, which could insist on the NHS being the lead provider in contracts for as long as ten years in the ‘prime contractor model‘.
And the future of the Care Quality Commission was put on a cliff-edge with the report of the Sir John Oldham Commission, again to do with whole person care. It would make much more sense to reform the regulators to oversee health and care with a single regulator in future. This would again be in line with the regulation of health and care professionals, much needed, and proposed by the English Law Commission, but kicked into the long grass by the current Government as it ran out of time.
The “5 year Forward View” to all intents and purposes reads like a marketing document, a wish-list for further privatisation of the NHS. It may ‘pack a punch‘, from the BBC which has unreservedly succeeded in throttling any discussion of the NHS reforms. But talk of ‘accountable care organisations’, as developed in Spain and the United States, and the emphasis on preventive health packages so keenly sold by multinational corporates, are paradigmatic of a wish-list of a privateer.
The document is a naked shill, intended to carry on the ‘case for change’ which has been made exhaustively by think tanks such as the King’s Fund which, some might say, were instrumental in giving the catastrophic policy of market competition in the National Health Service some legs in the first place.
But the runes are clearly there.
Take, for example, the seemingly-modest proposal of “integrated care commissioning”. The policy of personal budgets in the full glare of sunlight looks incredibly anaemic. Unanswered questions exist how a universal health system is going to be successfully merged with a means-tested care system. NHS England tried, unsuccessfully, to head this issue off at the pass as far back as in 2012.
Personal health budgets, which Simon Stevens has continued to speak moistly of, are the perfect vehicle for introducing ‘top ups’ and ‘copayments’, threatening the fundamental principle of universal, free-at-the-point-of-need.
And moves, not contained in the ‘5 year plan’, spell out an ominous direction of travel. It has just been announced that the much maligned contract for processing ATOS, given under the last Government to ATOS, is to be given to a company called Maximus, which has a proven track record in handing long term care packages in other jurisdictions.
“Independent” think tanks have never shrugged off successfully the “power of the prepaid cards”, see for example the DEMOS initiative. It has always been vehemently denied that there will be no merging of universal credit and healthcare provision, although Liam Byrne’s account of Jennie Macklin in Australia painted a rather different story in an article in the Guardian provocatively entitled “Let’s help disabled people achieve their full potential“.
Like a multi-national corporate document, the “5 year plan” is high on marketing but poor on strategy. A good example of this is given on page 36 in relation to a ‘threat’ facing the National Health Service, that of recurrent pay freezes to the majority of nurses whilst the economy is reputed to be recovering.
The seemingly innocuous line, at the end of page 35, reads: “For example as the economy returns to growth, NHS pay will need to stay broadly in line with private sector wages in order to recruit and retain frontline staff.” But it is well known that any wish to pay nurses a wage that reflects the value that runs through their work like letters in a stick of rock will be strongly resisted by the Treasury, while the Conservative Party will prefer further to tattoo the words of low taxes onto his breast plate of ideology.
There are other clear examples of the document clearly lacking in clarity. For example, page 33 sees a promotion of ‘personalised medicine’, how the NHS and “our partners” (meaning in the third and private sector, actually) might deliver the genome based ‘revolution’. Again, the document’s thrust is one of marketing, not clear strategy. There is no mention of the changes in resource allocation which would be required to serve this revolution, essentially seeing hardworking taxpayers subsidise the shareholder dividends or surpluses of large corporate-like charities. There is absolutely no mention of the changes in the legislative framework that would be needed, as in the United States, to prevent genetic information non-discrimination. But here again the document serves its marketing function – as a prospective prospectus for would-be investors wishing to spot lucrative opportunities in the NHS as a data mine.
Like there is no mention of “NHS preferred provider”, unsurprisingly there is no mention of “whole person care”. And yet, even if Labour fail to win an outright majority, it will seek to implement this being the largest party in Government. And this policy is set to see a profound change in the landscape of health and care provision for England.
In any business strategy, one is obliged to think of the political, economic, social, technological, legal and environmental headwinds (affectionately known as “PESTLE” to business strategists). A good example of social changes in the five years might have been, for example, a change in direction of the NHS being seen as resentment as costing much money, despite its striking efficiency, but one which values its workforce (for example in the salary of most of its nurses).
Looking at the political headwinds, it is quite incredible for example there is no mention of trade agreements such as TTIP and the investor-to-state dispute settlement clauses. If this ‘5 year forward plan’ had been at all serious, it would have been included, not least as it is a headwind which could drastically throw off course further the direction of travel of the NHS as a state-run health service.
Simon Stevens’ vision is a ‘charismatic vision’ of sorts. But a vision does not have to be particularly credible for it to get populist appeal or succeed. It just needs to be communicated clearly, with supine and compliant supporters in the trade media.
If the document were a ‘heads up’ for how we could afford a NHS through general taxation which was genuinely universal and free at the point of need, this document would have served a function. As it is, the document is a lubricator for mechanisms which could optimise the part that the private sector has to play, with no mention of the dogs being unleashed in the global marketplace – in much the same way Cameron refused to signpost “the top down reorganisation”. It is impossible for a strategy document for the NHS simply to airbrush out the political and legal factors which will be at play in the lifetime of the next Government. As it is, the NHS ‘5-year forward view’ is a basic piece of marketing, which as a strategic plan scores 0/10.
There’s been a lot of diagnosis on improving the diagnosis rates for dementia in primary care as a result of the Prime Minister’s Dementia Challenge.
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Scrapping the Human Rights Act does not get rid of Strasbourg as a portal of action for health and care matters
Like most people who’ve had a legal training, I was baffled why David Cameron is so triumphant about scrapping the Human Rights Act (1998). The legal position is that “British citizens would still be able to take cases to the European court of human rights, and its case law and the principles of the convention would still be in force in UK courts.”
This is stated correctly here.
Leading commentators such as Joshua Rozenberg, Britain’s best known legal commentator, have previously advised that the debate must be conducted in a different light from the political grandstanding (article here).
When Dominic Grieve, the previous Attorney General, was asked at a fringe meeting for his reaction to May’s speech, he insisted he was “completely comfortable” with the idea of replacing the existing legislation with a British bill of rights.”
At the time, it was observed that Ken Clarke QC MP, like Dominic Grieve QC MP, was a keen supporter of human rights.
In 2011, when I was studying my Master of Law, I attended discussion at the Honourable Society of Inner Temple last night. The seminar is jointly hosted by the Constitutional and Administrative Bar Association (ALBA) and the new Bingham Centre for the Rule of Law. The speakers included Lord Justice Laws, Lord Pannick QC and Professor Philip Leach, London Metropolitan author, and author of numerous publications including the book “Taking a case to the European Court of Human Rights”. The session was totally packed out, and the speakers took many questions from leading practising international barristers and academics.
It is perhaps easy to overstate the opposition towards the Human Rights Act, but it was pointed out only two countries are openly questioning the legitimacy of the European Convention of Human Rights – Russia and the United Kingdom.
LJ Laws has long been in favour of developing domestic jurisprudence in the context of the Human Rights Act and common law.
He opined at this event that “the cases were beginning to speak, but the Convention was an useful guidance”, and reaffirmed the influence of a graduated approach to proportionality, an argument which Laws noted had been accepted by Bingham (see for example Regina v. Secretary of State For The Home Department, Ex Parte Daly). Laws reminded the legal audience that we, as a country, have always been in a position to influence Strasbourg, as for example the Pretty v United Kingdom case.
Laws further mooted, however, why should the judges be deciding upon social policy. Considering particularly articles 8-12, Laws provided that often lawyers had to decide where to strike the balance in certain issues between competing interest, but fundamentally lawyers were there to establish the framework and issue – however Laws warned that the nature of this exercise in jurisprudence gives rise ultimately to issue of a philosophical nature. I found this academic exploration by Laws interesting in light of how human rights law might impact on aspects of health and care policy in England.
Lord Pannick charted the history of the reaction to our history right legislation, in relation to Strasbourg. Pannick reminded the audience that criticising the Human Rights Act, in relation to Europe, was not a recent phenomenon.
In relation to the Gilbraltar incident, Michael Heseltine – as far back as 1995 – said, “We shall do nothing. We will pursue our right to fight terrorism to protect innocent people where we have jurisdiction, and we will not be swayed or deterred in any way by the ludicrous decisions of the Court.”
According to Lord Pannick, prisoners’ voting rights and the use of hearsay have also produced conflicting opinions from the UK and Strasbourg, and indeed these legal conflicts appear to be ongoing (see for example the present case of Zainab al-Khawaja, where the original argument was heard by the Court in 2010).
Lord Pannick proposed that this conflict arose from various sources. Firstly, Lord Pannick felt there is a general resentment of European law amongst Conservative “elements”, and many of the population. Secondly, the objection to the European Convention of Human Rights could part of a wider objection to foreign law. Lord Pannick indeed reminded the audience that a Conservative MP, lawyer and judge, David Maxwell-Ffye, was instrumental in drafting the European Convention of Human Rights. Lord Pannick then identified a possible perception from the UK voting public, that judges should not be deciding on social policy: for example, the argument for prisoner voting is not a matter for judges, but should be a matter for parliament.
Lord Pannick did not feel fundamentally that the criticisms of the HRA amounted to much. For example, the HRA expressly recognises that the UK Parliament is not bound by the Convention. If Parliament wishes to exclude voting by prisoners, the Human Rights Act does not prevent this. The judges can decide whether the defendants comply, but, according to Lord Pannick, it is equally important that the last word lies with parliament. Lord Pannick instead felt that a much more difficult issue is the relationship between parliament and the Strasbourg Court.
A future ‘all Conservative’ government, even if it repealed the HRA would still leave the jurisdiction of the Strasbourg Court intact – our own judges have no effect on the jurisprudence.
If the 1998 Act were to be repealed, as parliament is overeign, the number of British cases to Strasbourg would increase according to Lord Pannick. Lord Pannick felt that an useful to look at the relationship between our Supreme Court and Strasbourg would be to look at the ‘control of its docket’ jurisprudence, in other jurisdictions of international law.
Lord Pannick ultimately felt that the power of our parliament to define power Strasbourg as a body is limited. It would be unprecedented for us to withdraw from the European Convention of Human Rights, incompatible with membership of the EU, or Council of Europe. According to Lord Pannick, the concept of European minimum standards is of vital importance to us. There may be be occasions when national or international considerations are that our judges do not originally recognise that human rights are being breached (e.g. gays in the military) It would be difficult for us to expect that other countries such as Russia should comply with the Convention, if we do not. Lord Pannick therefore felt that the situation now required an accommodation on both sides.
The Strasbourg is supposed to overrule a National court only in cases of fundamental significance, where the national supreme court has made an error of principle. If Strasbourg does not follow this principle, it may risk the growth of political opposition. However, likewise, Lord Pannick identified that the Supreme Court should not supinely follow Strasbourg, either. The Government for example accepted the DNA ruling in preference ot the House of Lords. If the Supreme Court were to be asked if the voting rule asked about the prisoners’ voting again, Lord Pannick felt that the Supreme Court would be unlikely to say it is compatible with the European Convention of Human Rights.”
The Human Rights Act (1998) is also relevant to aspects of policy relating to people’s health: there have been concerns whether the ‘welfare reforms’ have offended human rights legislation.
There have also been concerns whether the fitness to practise procedures of the GMC need to be explored with the human rights lens?
There are also further issues, unresolved as yet, about whether the Health and Social Care Act (2012) offends humans rights legislation.
Most of this blogpost was first published on Dr Shibley Rahman’s legal blog here.
I believe that whole person care, to be introduced by the next Labour government, will be brilliant for bringing together health and care professionals with persons with dementia, and carers and support workers. But we should also be extremely vigilant of dodgy presentation of evidence being used ‘in the name of’ campaigning for my pet subject, dementia, I feel.
We keep on being told that the ageing population is one reason why we can no longer afford the NHS.
The clinical syndrome of dementia, for which advanced age is a risk factor, has therefore taken on a special significance in this context. Health policy gurus and politicians are seemingly having to find increasingly elaborate ways to force their agendas on an unsuspecting public. “The Shock Doctrine: The Rise of Disaster Capitalism” (2007), penned by the Canadian author Naomi Klein, argues that libertarian free market policies have risen to prominence in some developed countries because of a strategy by some political leaders. These leaders deliberately exploit crises to push through controversial exploitative policies while citizens are too emotionally and physically distracted by these crises to mount an effective resistance. Crises are, though, useful instruments for bringing about change.
Within the timescale of this parliamentary term, the Prime Minister’s Dementia Challenge (launched in 2012) has seen a torrent of newspaper headlines with sensational memes. They invariably depict some sort of crisis in projected numbers of people with dementia, and have helped Big Pharma with the task of campaigning for increased funds to find ‘a cure for dementia’. The memes have largely had twangs of crises. For example, ‘dementia is the “next time bomb”‘ was an early news story from 7 May 2012. This messaging has continued consistently since, with the latest popular meme being “soaring numbers diagnosed with dementia“. Indeed, only recently with the arrival of the “Dementia UK (second edition) report” presented in a conference in Central London, a press release was published stating “Alzheimer’s Society calls for action as scale and cost of dementia soars”. But this messaging has caused utter confusion and resentment amongst leading academics and practitioners in dementia. The cumulative effect, instead, of such headlines and articles in public health has been to produce a feeling of ‘moral panic‘. As rightly pointed out by Dr Martin Brunet in “Pulse Magazine”, a well respected commentator on dementia policy in English primary care, recent evidence suggests rather that that the prevalence of dementia in over 65s in 2011 is lower than would have been expected. This “CFAS-II study” from Cambridge, which was published last year in the Lancet, is widely quoted, comprehensively peer-reviewed, and is extremely well known amongst people working in this field.
This is all incredibly self-defeating, as the “Prime Minister Dementia Challenge” was intended to bring greater awareness of the dementias amongst the general public not least to tackle the stigma faced by people living with dementia in their everyday lives. But you have to wonder what the intention of this approach is in the long term? The final report from the Commission on the Future of Health and Social Care in England (“Barker Commission”) was published on 4 September 2014. It discusses “the need for a new settlement for health and social care to provide a simpler pathway through the current maze of entitlements”. Labour intends to introduce ‘whole person care’ in the next parliamentary term, and it could be that this “scorched earth” approach for dementia has served a useful function. “Whole person care” is their new “big idea“. The Barker Commission recommends moving to a single, ring-fenced budget for the NHS and social care, with a single commissioner for local services.
On page 9 of their final report, the ‘ultimate star prize’ is described, the personal budget:
“Personal budgets, and care in hospital and out of it, would be provided from a single, ring-fenced budget. There would be one budget and one commissioner for individuals and their families to deal with, in place of health, social care and, in the case of those aged over 65, the Department for Work and Pensions. Commissioners would be freed to acquire care designed around an individual’s need for support and health care, largely dissolving the current definitions of what is a health need and what is a care requirement.”
And this of course is nothing new: it has been in gestation for quite some time. I myself, in fact, wrote about personal budgets for ‘Our NHS’ in my piece ‘Shop til you drop?’ on 4 September 2013. It is said that Andy Burnham MP, Shadow State of Secretary of Health, “welcomes the Barker Commission“, but one wonders whether he wishes openly to support the more unsavoury parts. Labour is desperately keen to introduce its policy changes on integrated care, without them being seen as another “top down reorganisation”. Any public resistance to their flagship policy will be political dynamite. Labour is instead currently campaigning on an anti-marketisation and anti-privatisation slate, and has pledged to repeal the highly toxic Health and Social Care Act (2012) (“the Act”).
One significant part of this repeal will be the abolition of “section 75″ and its associated regulations, which introduced competitive tendering in commissioning as the default option for NHS procurement. Nevertheless significant faultines in policy, described elegantly by Prof Calum Paton in his pamphlet “At what cost? Paying the price for the market in the English NHS” for the Centre for Health and Policy Interest (February 2013), still exist. They also are at danger of persisting, even if Labour triumphantly repeals the Act. There is a danger that unless these other pro-marketisation strands are addressed first, such as the purchaser-provider split, the “whole person care” policy will become engulfed in an intensely neoliberal direction. The counterfoil to this from Labour would presumably be that whole person care does not require a market in the first place. For this, clearly, Labour must not inflict personal budgets. A further big concern of mine is simple: not only will current scientific research into dementia have been completely misrepresented in the popular press, but also the field of dementia will be used to provide the raison d’être for yet another upheaval in service change.
And that upheaval could witness yet another change from the founding principles of the NHS. It could also be one too many.
This is the text of the speech given by Mr Jeremy Hunt, the Minister who oversees the running of the NHS and care despite having no legal statutory duty for it.
Today I am here to tell the British people that a future Conservative government will have no greater priority than to protect, support and invest in our NHS.
In 1948, the greatest of all Conservatives Winston Churchill supported the then Labour government in its plan to set up a National Health Service. He said ‘disease must be attacked whether it occurs in the poorest or richest man or woman simply on the grounds that it is the enemy.’
That safety net Churchill wanted is our NHS today, supported across the political spectrum.
Last week Labour tried to paint a different picture. They know this government increased the NHS budget despite the financial mess Labour left behind. They know the NHS has more doctors and more nurses than ever before. They know fewer people than ever are waiting long periods for their operations. They know the culture is becoming more caring. But they still seek to trick the public into thinking one party cares for the NHS and the other doesn’t.
Well I have a message for Mr Miliband. It’s not a Labour Health Service or a Conservative Health Service…it is a National Health Service. And when my father was cared for by a district nurse or my wife had our baby this summer or our son goes for his jabs, they aren’t Conservative patients, Labour patients or LibDem patients, they’re NHS patients. When people in this hall volunteer to support the local league of friends or join the board of a hospital we’re not Conservative supporters – we’re NHS supporters. We all support the NHS because the NHS is there for us all.
So don’t turn the National Health Service into a National Political Football and don’t use the NHS to divide us when it’s the fabric that unites our nation.
This morning the Prime Minister announced plans to make it easier for millions of people to get 8 till 8 and weekend appointments with their GPs.
And I want to start today by celebrating that and some of the other successes of our NHS, doing so well despite huge pressure.
Take cancer, our biggest killer. Every family in the country has lost a friend or loved-one to cancer – I lost my own father last year. It is a ruthlessly indiscriminate killer – whether it targets someone who has just retired after a life of hard work or a child with a life stretching out in front of them.
In 2010 this country had amongst the lowest cancer survival rates in Western Europe. So we set up the cancer drugs fund. We’ve transformed cancer diagnosis so the NHS now tests 1000 more people for cancer every single day. And so far this parliament we have treated nearly three quarters of a million more people for cancer than the last one – that’s thousands of lives saved, thousands of families kept together, thousands of tragedies averted. So let’s hear it for our brilliant cancer doctors and nurses.
Or look at dementia, one of the most terrifying conditions of all.
I’ll never forget the courage of man I met with dementia who single handedly stood up to the banks and demanded they gave him an alternative to having to remember a pin number. But it isn’t just your pin number that goes. It’s precious family memories, marriages of many years, relationships with children – all snatched away by cruel tricks of the mind. When we came to office fewer than half of those with dementia got a diagnosis, meaning many missed out on vital medicine or support for their family. We’ve now diagnosed an extra 80,000 people. The Prime Minister hosted a G8 summit to get the drug companies to do more to find a cure. And we’re working with the Alzheimers Society to enroll one million dementia friends to tackle stigma – with half a million signed up so far.
So let’s hear it for GPs, dementia nurses, dementia carers, dementia friends and people with dementia who are changing the way our society tackles this horrible condition.
Or A & E, the critical frontline for the NHS. A young A & E doctor told me how she had cried after seeing a 90 year old man say his goodbyes to a 90 year old woman he’d been married to for over 60 years. For her that was just part of the job. And with a million more people using A & E, the pressures on her and her colleagues are immense.
Sometimes, yes, it’s been tough meeting the target. But despite that we have halved the time people wait to be assessed and are treating nearly 2,000 more people every day within the four hour target compared to 2010. So let’s hear it for our brilliant A & E frontline staff now preparing for a challenging winter.
Conference our opponents say the NHS is in decline. But according to the independent Commonwealth Fund under this government the NHS became the top-rated healthcare system in the world. Better than America, better than France, better than Germany, better than Australia. And the way they rose to the challenge of Ebola says it all – with 164 NHS volunteers offering to go and help contain the outbreak in West Africa. So let’s hear it for all NHS doctors, nurses, porters, cleaners, caterers, carers and volunteers. You are the best of British and the pride of our nation.
But that doesn’t mean things are perfect. About the first thing I did as Health Secretary was to read the original Francis report about the terrible things that happened at Mid Staffs Hospital between 2005 and 2009. I was utterly horrified. As Francis made clear, system-wide failings meant these problems weren’t limited to one hospital.
One member of the public wrote to me about what happened somewhere else in a letter that was so shocking I asked to meet her.
She said she visited her late husband in hospital at 5 in the morning and found him naked on a deflated mattress, caked in urine and excrement, and curled in a foetal position with a cold air conditioner blowing directly onto his body. She still has nightmares about that visit. Now that story, thankfully, is far from typical of our NHS.
But I vowed that day that if I did nothing else, I would make sure I returned a culture of compassionate care to every corner of our NHS. Because caring is what the NHS stands for, what every doctor and nurse passionately wants, why the NHS was set up – and what a quagmire of targets, goals and plans too often allowed to be squashed.
Supported by a wonderfully committed ministerial team – Freddie Howe, Norman Lamb, Dan Poulter, Jane Ellison and George Freeman – we’re changing things.
We introduced a tough new inspection regime.
Since then our hospitals have hired over 5,000 more nurses to tackle the scandal of short-staffed wards; 5 hospitals – Basildon, North Lincs, George Eliot, Bucks and East Lancashire – have been put into special measures and been turned round; and patients are saying that they are treated with dignity and respect not just at Mid Staffs but across the NHS the highest numbers ever recorded.
Indeed on Friday of last week the CQC announced the first hospital in the country to get an ‘outstanding’ rating, Frimley Park in Camberley. Chief Executive Andrew Morris is so committed he has been there for 25 years and his son even works there as a porter. Well done to Frimley Park.
Now the problems of poor care highlighted by Robert Francis happened under Labour – so I thought Labour would rush to support me in sorting them out. In fact they did the opposite. They said talking about poor care was ‘running down the NHS.’ They even tried to vote down the law setting up a new Chief Inspector of Hospitals.
I’ll tell you what ‘running down the NHS’ is:
- It’s not learning the lessons when a mother is forced to give birth on a toilet seat, as happened in 2007. Ignored by Labour, being sorted out by us.
- It’s making hospitals Foundation Trusts even when their mortality rates are too high. Brushed aside by Labour, being sorted out by us.
- It’s stopping the CQC telling the truth about blood-stained floors in one hospital. Happened under Labour, stopped by us.
It happened in England before and it’s happening in Labour-run Wales today – so don’t you dare talk to us about running down the NHS.
Because for Labour good headlines about the NHS matter more than bad care for patients – and in our NHS nothing matters more than patients and whilst I am running it nothing ever will.
I simply say this to a Labour Party that still refuses to learn the lessons of Mid Staffs, until you do, you are not fit to run our NHS. And if you won’t put patients first we will – and it will be the Conservative Party that completes Nye Bevan’s vision for an NHS that treats every patient with dignity and respect. We will finish the job.
I could go on with my concerns about the culture Labour left behind in our NHS. But I want to look forward and deal with one of the biggest concerns people have about the NHS which is about funding.
Labour talked about putting in more money last week. But securing the NHS budget isn’t about an extra billion here or there. It’s about funding over £100bn, which is what we spend on the NHS every year. And that needs a strong economy. Because it’s very simple: you can’t fund the NHS if you bankrupt the economy. This parliament we’ve actually increased spending on the NHS by more – in real terms – than Labour promised last week. We’ve done it because of David Cameron’s personal commitment to the NHS and difficult decisions taken by George Osborne.
Other countries followed Labour’s advice. They ducked those decisions. They had no plan – and ended up cutting their health budgets. Italy by 3%, Greece by 14%, Portugal by 17%. I don’t want that to happen here.
So never forget we’ve just had the greatest squeeze on finances in NHS history because a Labour government lost control of our national finances. So to anyone worried about investment in the NHS I say this: a Labour government with reckless economic policies is the biggest single danger to funding our NHS. Do not take that risk. Nor should we forget that every penny of NHS funding comes not from the government but out of the pockets of hard working taxpayers. So if we increase spending on the NHS we must also look every one of them in the eye and promise that every penny is being spent wisely. Which means we mustn’t stop new ideas that come from outside the NHS – whether from charities or, yes, the independent sector.
Labour call this privatisation. But using a charity like WhizzKids to supply wheelchairs to disabled children or using Specsavers to speed up the supply of glasses is not privatisation. When the last Labour government used the independent sector to bring down waiting times that wasn’t privatisation either. So stop scaremongering about privatisation that isn’t happening. It nearly cost us Scotland – and we won’t let it poison the debate in England as well. Secure NHS funding backed by a strong economy is the foundation.
But the building blocks to a modern health service are two things that need real cultural change.
Personal care – a real challenge as patients navigate one of the biggest organisations in the world. And personal control – in a world which has too often said the doctor, not the patient, knows best.
I remember when I did a shift in an A & E last year. A 90 year old lady with dementia was brought in by ambulance after a fall in her care home. She was completely motionless. She couldn’t talk. She couldn’t feed herself or even drink a glass of water. What made it worse was that in that A & E we knew next to nothing about her. We didn’t have her medical record. We didn’t know her allergies. We didn’t know if she was normally able to talk or whether it was just because of the fall. To us at that hospital she was not just unknown. She was anonymous. How could we possibly give her the personal care she desperately needed?
The same could happen to any one of half a million over 90s in our society. And it could happen to anyone with long term or mental health conditions, anyone of whom can find themselves anonymously pushed from pillar to post in a system that doesn’t know who they are. But for me the point of the NHS is to make sure all everyone gets truly personal care from people who know about them, know about their condition, know about their care plan – so that what happened in that A & E never happens again.
As a first step that needs the integration of the health and social care systems. And for the first time ever this year it is happening. 150 local authority areas working together with their local NHS on their Better Care plans to pool commissioning, reduce emergency admissions and share medical records all starting from next April – with many of you in this hall involved.
But truly personal care means more than joining up health and social care. It means personal, responsive care from your GP too.
Last year I manned the phones in a busy London GP practice. The doctors there worked very hard. But what was frustrating was having to tell nearly every caller there were no appointments available for two to three weeks.
We urgently need to make it easier for busy, working people to get an appointment. That means more GPs, so I can today confirm plans to train and retain an extra 5,000 GPs.
But it also means new ways of working. Last year we announced plans for 7.5 million patients to get weekend and 8 till 8 appointments. Today we have also announced we are rolling that out to millions more – meaning this service will be available for a quarter of the whole population. And going even further, I commit that at the end of the next parliament a Conservative government will make sure every NHS patient across the whole country will be able to get weekend and 8 till 8 GP appointments.
But personal care isn’t just about a convenient appointment. It means talking to a doctor who knows about you and your condition.
Astonishingly in 2004 Labour abolished the requirement for every patient to have their own, named, personal GP. At a stroke, many patients were told they no longer had their own GP, but were merely attached to a surgery. And GPs were told they were no longer personally responsible for patients. If you have a chronic condition or complex needs, continuity of care is absolutely vital. You don’t want to have to explain everything about yourself over and over again – and you want a doctor who takes ongoing responsibility for sorting things out – not just that day but every day.
So last year I changed that back for over 75s by insisting they get a GP named on their medical record and responsible for their care. Today I can go further and announce that in the new GP contract for 2015 every single person in England will go back to having a family doctor named on their record and responsible for their care.
Personal care for every NHS patient – delivered by this government. People want personal care. But in the 21st century they want something else. Not just personal care but personal control. People with diabetes, or a heart condition, or recovering from a stroke say the best person to take control of your care is not actually your doctor – it’s you. And right now we make that far too hard. We don’t give people enough information.
So this summer we became the first country in the world to publish detailed information about safety, waiting times, patient experience and food for every major hospital. And on the new MyNHS website we’ll go further.
But it isn’t just information about your local hospital you want, it’s information about you. So today I can confirm that by April next year, every patient in England will be able to access their own medical record online – the first country in the world to take this huge step. It means you will no longer have to pay to access your medical record. You’ll be able to see it and show it to anyone you choose. You’ll find it easier to do detailed research about your condition and easier to challenge decisions. Because the boss is not the doctor – it’s you. Nothing about me without me. Personal control of your health delivered by this government.
Conference my vision is simple. We in this party have always believed passionately we should honour our debt to previous generations. So I want Britain to be the best country in the world to grow old in. I want us to enjoy the fruits of prosperity, yes, but never forget the people before us who’ve worked hard to make that possible. Never forget that all our success, all our strength, all our wealth as a country is but a hollow dream if at the end of it we are not able to give all our citizens the healthcare and support they need in old age. Never forget that it’s not a choice between a strong economy or a strong NHS. You need both and only one party – this party – can deliver both. A strong NHS. A strong economy. From a Conservative party proudly rebuilding a strong country. Personal care. Personal control. For patients treated with dignity, compassion and respect. Delivered by our party. For our NHS. For our country.