This is a totally independent post and does not represent the views of the Socialist Health Association.
Of course, in marketing, authenticity is everything.
David Cameron recently relaunched his botched Coalition with the remark that his Coalition is ‘everything it says on the tin’. Everything apart from the scrapping of PCTs, the £3bn “top-down reorganisation”, and other things, for example.
Opposition to the Health and Social Care Act (2012) would have loved the publicity which surrounded ‘the horsemeat scandal’. An insatiable appetite by the public for cheaper goods or services has been to blame for the investment by private equity in horsemeat, appearing thereafter as Beef Lasagne. An insatiable appetite for the NHS to be run more cheaply could be a driver for private equity to run NHS services with ‘greater efficiency’ and lower cost. However, the new guidelines on commissioning, published this week, allow for the possibility of commissioning services for increased cost but ‘greater value'; this will help of course to enhance shareholder dividend. Every little bit helps.
The NHS brand is worth quite a lot, so much so the trademark is registered for all to see. In the English law, the trademark represents the “badge of origin” – so that customers know where the product is coming from. Infringement of trademarks occurs where there is genuine confusion in the mind of the customer where a product has come from, particularly if the trademark has a lot of goodwill attached. And yes, there is a lot of goodwill attached to the NHS logo, which means that even Conservative ministers such as Jeremy Hunt, even after #Francis, ‘handle it with care’. The new commissioning guidelines have made a big play of ‘accountability’, i.e. you can look up where contracts have been awarded on a website. That does not get round the legal deception, that private health providers are selling their product under the NHS logo. Of course, the health services provided by private health providers are not “toxic”, but nor strictly speaking is horsemeat.
Selling horsemeat as beef is however a criminal offence. It satisfies easily the fraud by false representation offence under the Fraud Act, of selling something represented as something else with a view to causing a deception for financial profit. That private companies are able to provide NHS services is of course perfectly acceptable under the law as it is drafted, but the lawyers who drafted the guidelines for commissioning aren’t stupid. They have enshrined in law how commissioners must look to any willing provider, such that the “sector regulator” Monitor can remedy, even in the absence of a complaint, any fault. This is a direct measure to remove any barriers-to-entry for private companies to enter and literally take over the NHS.
Horsemeat was uncovered because of a failure (or success) of regulation, depending upon your viewpoint. Whilst the new Health and Social Care Act is sold by free marketeers as “liberalising the market”, the new market clearly needs regulation. Whilst it is not a horsemeat-type scenario, private equity are seeking to make profit out of a different sector of goods and services, and it is essential that, for the public, ‘what you see is what you get’. Given that the majority of the public do not know what is happening to the NHS due to the blanket ban on media coverage, this is likely to be a big problem in future?
Please feel free to contact me on @legalaware if you wish to have a constructive debate about any of the issues therein. Many thanks.
