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Statutory instrument SI 2013/057 on NHS procurement in England: amendment or annulment?



A Statutory Instrument is used when an Act of Parliament passed after 1947 confers a power to make, confirm or approve delegated legislation on: the Queen and states that it is to be exercisable by Order in Council; or a Minister of the Crown and states that it is to be exercisable by Statutory Instrument. 1.15 pm last Tuesday (5 March 2013) saw Andy Burnham MP, the Shadow Secretary of State for Health, go head-to-head with Norman Lamb (The Minister of State, Department of Health). Lamb was invited to comment  on the regulations on procurement, patient choice and competition under section 75 of the Health and Social Care Act 2012.

The discussion is reported in Hansard.

Lamb describes an intention to ‘amend’ the legislation

Lamb explains:

“Concerns have been raised that Monitor would use the regulations to force commissioners to tender competitively. However, I recognise that the wording of the regulations has created uncertainty, so we will amend them to put this beyond doubt.”

The problem is that this statutory instrument would have become law automatically on 1 April 2013, and still promises to do so in the absence of anything else happening. The safest way to get this statutory instrument out-of-action is to ‘annul’ the law, rather than having the statutory instrument still in force but awaiting amendment. Experts are uncertain the extent to which statutory instruments can be so easily amended, while in force.

Most Statutory Instruments (SIs) are subject to one of two forms of control by Parliament, depending on what is specified in the parent Act.

Fatal motion

There is a constitutional convention that the House of Lords does not vote against delegated legislation. However,  Andy Burnham has said the exceptional nature of the Section 75 regulations, which force all NHS services out to tender, meant he needed to table a ‘fatal’ motion in the second Chamber. Indeed, Lord Hunt later tweeted that this fatal chamber had forced a rethink on the original Regulations:

The main effect of delegated legislation being made by Statutory Instrument is that it is effective as soon as it is made, numbered, catalogued, printed, made available for saleand published on the internet. This ensures that the public has easy access to the new laws. This statutory instrument (SI 2013/057:The National Health Service (Procurement, Patient Choice and Competition) Regulations 2013) is still available in its original form, with no declaration of its imminent amendment or annulment, on the official legislation website here.

The “Prayer”

The more common form of control is the ‘negative resolution procedure’. This requires that either the Instrument is laid before Parliament in draft, and can be made once 40 days (excluding any time during which Parliament is dissolved or prorogued, or during which both Houses are adjourned for more than four days) have passed unless either House passes a resolution disapproving it, or the Instrument is laid before Parliament after it is made (but before it comes into force), but will be revoked if either House passes a resolution annulling it within 40 days.

A motion to annul a Statutory Instrument is known as a ‘prayer’ and uses the following wording:

That an humble address be presented to Her Majesty praying that the [name of Statutory Instrument] be annulled.

Any member of either House can put down a motion that an Instrument should be annulled, although in the Commons unless the motion is signed by a large number of Members, or is moved by the official Opposition, it is unlikely to be debated, and in the Lords they are seldom actually voted upon.

Indeed, this is exactly what happened. Ed Miliband submitted EDM 1104 on 26 February 2013, which currently – at the time of writing – has 183 signatures – with the exact wording:

“That an humble Address be presented to Her Majesty, praying that the National Health Service (Procurement, Patient Choice and Competition) Regulations 2013 (S.I., 2013, No. 257), dated 11 February 2013, a copy of which was laid before this House on 13 February, be annulled.”

The purpose of “amending” the legislation

Lamb later provides in his answer:

“Concerns have also been raised that competition would be allowed to trump integration and co-operation. The Future Forum recognised that competition and integration are not mutually exclusive. Competition, as the Government made clear during the passage of the Bill, can only be a means to improve services for patients—not an end in itself. What is important is what is in patients’ best interests. Where there is co-operation and integration, there would be nothing in the regulations to prevent this. Integration is a key tool that commissioners are under a duty to use to improve services for patients. We will amend the regulations to make that point absolutely clear.”

How the Government “amends” the legislation is clearly pivotal here. Integration is another “buzzword” in the privatisation ammunition. Colin Leys wrote in 2011:

“In the emerging vision of the Department of Health, however, integrated care has always been associated with the drive to enlarge private sector provision, and the Kaiser [Permanente] connection emphasised this. The competitive culture attached to integrated care in the Kaiser model, coupled with the keen interest of private providers in all integrated care initiatives, were constants, and put their stamp on official thinking about the future NHS market.”

A possible reason for why this emphasis on competition has failed is that in other markets, such as utilities, rail and telecoms, there is a strong case that competition has not driven down cost at all, because of shareholder dividend primacy. Another good reason for people in favour of the private market to discourage competition is that competition might even inhibit a drive to integration, and integration is strongly promoted by private providers (and, incidentally, New Labour).

What does the Act itself say about ‘annulling’ statutory instruments?

According to s. 304(3), “Subject to subsections (4) to (6), a statutory instrument containing regulations under this Act, or an order by the Secretary of State or the Privy Council under this Act, is subject to annulment in pursuance of a resolution of either House of Parliament.” So, at the moment, we are clearly in limbo, with parliament yet to pass a EDM, and new redrafted Regulations yet to appear. However, it is still a very dangerous situation, as the original set of Regulations is still yet to be enacted on 1 April 2013.

 

 

 

Information imbalances are the heart of many recent disasters



 

 

 

 

 

 

Had certain people at the BBC known about, and acted upon, the information which is alleged about Jimmy Savile, might things have turned out differently? George Entwhistle tried to explain yesterday in the DCMS Select Committee his local audit trail of what exactly had happened with the non-report by Newsnight over these allegations.

‘Information asymmetry’ deals with the study of decisions in transactions where one party has more or better information than the other. This creates an imbalance of power in transactions which can sometimes cause the transactions to go awry, a kind of market failure in the worst case.  Information asymmetry causes misinforming and is essential in every communication process. In 2001, the Nobel Prize in Economics was awarded to George Akerlof, Michael Spence, and Joseph E. Stiglitz for their “analyses of markets with asymmetric information.” Information asymmetry models assume that at least one party to a transaction has relevant information whereas the other(s) do not. Some asymmetric information models can also be used in situations where at least one party can enforce, or effectively retaliate for breaches of, certain parts of an agreement whereas the other(s) cannot.

In adverse selection models, the ignorant party lacks information while negotiating an agreed understanding of or contract to the transaction, whereas in moral hazard the ignorant party lacks information about performance of the agreed-upon transaction or lacks the ability to retaliate for a breach of the agreement. An example of adverse selection is when people who are high risk are more likely to buy insurance, because the insurance company cannot effectively discriminate against them, usually due to lack of information about the particular individual’s risk but also sometimes by force of law or other constraints. An example of moral hazard is when people are more likely to behave recklessly after becoming insured, either because the insurer cannot observe this behavior or cannot effectively retaliate against it, for example by failing to renew the insurance.

Joseph E. Stiglitz pioneered the theory of screening, and screening is a pivotal theme in both economics and medicine. In this way the underinformed party can induce the other party to reveal their information. They can provide a menu of choices in such a way that the choice depends on the private information of the other party.
Examples of situations where the seller usually has better information than the buyer are numerous but include used-car salespeople, mortgage brokers and loan originators, stockbrokers and real estate agents. Examples of situations where the buyer usually has better information than the seller include estate sales as specified in a last will and testament, life insurance, or sales of old art pieces without prior professional assessment of their value.

This situation was first described by Kenneth J. Arrow in an article on health care in 1963. The asymmetry of information makes the relationship between patients and doctors rather different from the usual relationship between buyers and sellers. We rely upon our doctor to act in our best interests, to act as our agent. This means we are expecting our doctor to divide herself in half – on the one hand to act in our interests as the buyer of health care for us but on the other to act in her own interests as the seller of health care. In a free market situation where the doctor is primarily motivated by the profit motive, the possibility exists for doctors to exploit patients by advising more treatment to be purchased than is necessary – supplier induced demand. Traditionally, doctors’ behaviour has been controlled by a professional code and a system of licensure. In other words people can only work as doctors provided they are licensed and this in turn depends upon their acceptance of a code which makes the obligations of being an agent explicit or as Kenneth Arrow put it “The control that is exercised ordinarily by informed buyers is replaced by internalised values”

In standard civil litigation, disclosure of information takes place between the two parties in standard proceedings,  a party must disclose every document of which it has control and which falls within the scope of the court’s order for disclosure. Even if a party discloses a document, the other party is not entitled to inspect the document. Of course, this disclosure procedure might have effects in producing information imbalances, where it is important to see ‘the big picture’. Such a situation is the Leveson Inquiry, ultimately looking at how activities might be better regulated if appropriate (and by whom). The communications with the former News International chief executive and the News of the World editor-turned spin doctor, Andy Coulson, were reportedly kept from the hearings into press standards after the Prime Minister sought legal advice. Labour said that David Cameron, the UK Prime Minister, must make sure that “every single communication” that passed between him and the pair be made available to the inquiry and the public.  The cache runs to dozens of emails including messages sent to Mr Coulson while he was still an employee of Rupert Murdoch, according to reports. It was described by sources as containing “embarrassing” exchanges with the potential to cast further light on Mr Cameron’s relationship with two of Mr Murdoch’s most senior executives. However, Downing Street was said to have been advised that it was not “relevant” to the Leveson inquiry as the documents they contained fell outside its remit, according to The Independent.

Information imbalances, for us on a more daily basis, have a direct effect on the consumer-supplier relationship of the econy, We have been told to absurdity on how much of our problems as consumers would be solved if we could simply ‘switch easily’ between energy suppliers. In a sense, either there should be far less competition (i.e. the whole thing merges into one state supplier, reducing absurdities in a few suppliers all providing the same product at a high price,  similar to exam boards currently), or there should be far more competition (there is currently an oligopolistic situation in many markets, which would be greatly ameliorated by having many more active participants in the competition market.) In 2009, the four largest banks supplied 67% of the market of mortgages, and, in 2006, the ‘big four’ banks accounted for 47% of the market. According to the “Cruickshank review”, the ‘big four’ banks accounted for 17% of the market. Demutualised building societies held 48%: these are, (a) Lloyds TSB, Halifax and Bank of Scotland; (b) Royal Bank of Scotland, Natwest; (c) HSBC, First Direct; (d) Abbey, Alliance and Leicester, Bradford and Bingley.

The Competition Commission believes that helping customers to easily switch products is paramount to the effective operation of competitive markets: markets do not function without customers who vote with their feet. As Dr Adam Marshall of the British Chambers of Commerce told the Commission: ‘There’s lots of products and services on the market, but the theoretical competition between those products and services is limited by the real world barriers of form filling, hassle, bureaucracy, decisions not being taken, etc…’ The regulator responsible for consumer protection regulation should have both: (a) an explicit mandate to promote effective competition in markets in the financial sector; and (b) the necessary powers to regulate the sector to achieve this, including the ability to apply specific licence conditions to banks and exercise competition and consumer protection legislation. These powers will be concurrent with the competition powers of the OFT, and will enable the regulator to both enforce competition law and make market investigation references to the Competition Commission.

The aim of consumer protection regulation is to promote the conditions under which effective competition can flourish as far as possible, and where not, the regulator will be able to take direct action. In order best to promote the interests of the consumer, the regulator will encourage financial firms to compete: on the merit of the quality and price of their products and services; and to gain a competitive advantage by investment in innovation, technology, operational efficiency, superior products, superior service, due diligence, human capital, and offering better information to customers. Ideally, the regulator would then step in whenever there is a sign of market failure. Market failures include: (a) poor quality information being disclosed to consumers when they are deciding whether to purchase products; (b) information asymmetry between the provider and the consumer; or (c) providers taking advantage of typical consumer behaviour such as the tendency evident in retail customers to select the default option offered, and reluctance to switch products because of inertia. Any sign of market failure indicates that competition is probably not effective, and the regulator should then take action to counteract the failure.

Therefore, it is hard to see how information imbalances are not at the heart of many ‘decisions’ affecting modern life, and can lead to imperfect decisions being made. Ideally, it is up to parties to make a full disclosure about things, whether this includes personal health or corporate misfeasance; if they are not so willing to give up their secrets, they possibly can be ‘nudged’ into doing so. Of course, some parties, particularly those intending to generate a healthy shareholder dividend, may not be very keen at all at spilling the beans, and that is where law and regulation come in. However, even then there can be significant imbalances in the legal process which can be obstructive in the correct solutions being arrived at. Certainly the field has progressed substantially since this Nobel Prize for Economics was first awarded over 30 years ago.

 

An ethos of collaboration is essential for the NHS to succeed



Andrew Lansley

Andrew Lansley

As a result of the Health and Social Care Act, the number of private healthcare providers have been allowed to increase under the figleaf of a well reputed brand, the NHS, but now allowing maximisation of shareholder dividend for private companies. The failure in regulation of the energy utilities should be a cautionary tale regarding how the new NHS is to be regulated, especially since the rule book for the NHS, Monitor, is heavily based on the rulebook for the utilities. The dogma that competition drives quality, promoted by Julian LeGrand and others, has been totally toxic in a coherent debate, and demonstrates a fundamental lack of an understanding of how health professionals in the NHS actually function. People in the NHS are very willing to work with each other, making referrals for the general benefit of the holistic care of the patient, without having to worry about personalised budgets or financial conflicts of interest. It is disgraceful that healthcare thinktanks have been allowed to peddle a language of competition, without giving due credit to the language of collaboration, which is at the heart of much contemporary management, including  notably innovation. (more…)

An ethos of collaboration is essential for the NHS to succeed



 

 

As a result of the Health and Social Care Act, the number of private healthcare providers have been allowed to increase under the figleaf of a well reputed brand, the NHS, but now allowing maximisation of shareholder dividend for private companies. The failure in regulation of the energy utilities should be a cautionary tale regarding how the new NHS is to be regulated, especially since the rule book for the NHS, Monitor, is heavily based on the rulebook for the utilities. The dogma that competition drives quality, promoted by Julian LeGrand and others, has been totally toxic in a coherent debate, and demonstrates a fundamental lack of an understanding of how health professionals in the NHS actually function. People in the NHS are very willing to work with each other, making referrals for the general benefit of the holistic care of the patient, without having to worry about personalised budgets or financial conflicts of interest. It is disgraceful that healthcare thinktanks have been allowed to peddle a language of competition, without giving due credit to the language of collaboration, which is at the heart of much contemporary management, including  notably innovation.

It has now been belatedly admitted that there need to move beyond fragmented care to an integrated approach in which patients receive high-quality co-ordinated services. There is of course a useful rôle for competition, but it has to be acknowledged that healthcare professionals all try to provide the optimal medical care for their patient in the NHS, irrespective of cost, as this is literally a life-death sector, unlike production of a widget. The implication is that competition itself need not be a barrier to collaboration provided that the risks of the wrong kind of competition are addressed. Porter and Teisberg’s argument is related to the analysis of Christensen and colleagues (Christensen et al 2009), who see the solution to the problems of health care in the United States as lying in competition between integrated systems. And when the United States coughs we of course sneeze.

In 2011, the Kings Fund produced a pamphlet entitled, “Where next for the NHS reforms? The Case for Integrated Care”. This was before the inevitable enactment of the Health and Social Care Act (2012). This pamphlet was nonetheless useful in articulating that there are many barriers to the implementation of integrated care, including organisational complexity, divisions between GPs and specialists, perverse financial incentives, and the absence of a single electronic medical record available throughout the NHS. The Kings Fund at that time argued that enhanced primary care involves an action to reduce variations in the quality of primary care and to provide additional services that help to keep people out of hospital. This required a network of primary care providers that promote and maintain continuity of care with local people and act as hubs not only for the provision of generalist care but also for access to diagnostics and chronic disease management. This was of course before a wholesale shift in the ownership and outsourcing of the functions of the NHS had taken place, and what exists now is nothing short of a mess.

It is all too easy to produce politics-based evidence for contemporary healthcare in the NHS, but it is perhaps worth taking note of disasters from abroad. Martin Painter, writing in The Australian Journal of Public Administration in 2008, was one of the first to point out the dangers of privatisising the State, discussing Vietnam and China. In Vietnam and China, decentralisation is a by-product, both by default and design, of the transition to a state-managed market economy. A dual process of horizontal and vertical decentralisation was occurring simultaneously in both the economic and political arena, with an increasingly high level of de facto political/fiscal decentralisation, much of it occurring by default as local governing units try to meet rising demand for services. This is accompanied by the marketisation and socialisation of services such as education and health. Accompanying both of these processes is a trend towards greater ‘autonomisation’ of service delivery units, including the emergence of new ‘para-state’ entities. This could be seen akin to the enthusiasm demonstrated by New Labour for the NHS Foundation Trust, and the Francis Report (2013) promises to provide useful insights into the definition of this new model army of autonomous units. Most of these decentralisation processes were recognised to be the by-product of marketisation, rather than part of a process of deliberate state restructuring in pursuit of ideals of decentralised government. The cumulative effects include a significant fragmentation of the state, a high potential for informalisation and corruption, and a growing set of performance accountability problems in the delivery of public services.

With fragmentation, in addition to a lack of coherent national policy, brings a culture of mistrust which is toxic for any organisation, let alone economic sequelae (discussed later in this article.) According to the Deloitte LLP 2010 “Ethics & Workplace Survey,” when asked what factors contributed to their plans to seek new 9-to-5 work environments, 48 percent of employees cited a “loss of trust,” 46 percent said a “lack of transparency in communications,” and 40 percent noted “unfair treatment or unethical behavior by employers.” Hospitals are among the most complex types of hierarchical social organisations. Collaboration within and across hospital departments can improve efficiency, effectiveness and the quality of services, but competition for resources, professional differences and hierarchical management practices hinder innovation. However, coordinating activities across functional and interorganisational boundaries is difficult. Conflicting goals and competition for scarce resources diminish trust and the willingness of decision makers across the value chain to work together. Several researchers have identified collaboration as a means of reducing various different types of conflict both between and within organisations, in the private sector. Importantly, the “dynamic-capabilities” approach highlights two realities that underlie a firm’s opportunity to exploit collaboration. First, the word “dynamic” implies the ability to rapidly change a firm’s resource base in response to a changing environment. Second, by definition, a capability is “the firm’s ability to integrate, build, and reconfigure internal and external competencies”. The literature consistently employs terms such as “coordinate,” “combine,” and “integrate” to describe the process of capability development. These core concepts suggest the need to work effectively across organisational boundaries. Thus, decision makers should consider the orientations and strategic conflict literatures as they seek to achieve inimitable advantage via a dynamic collaboration capability.

The aim of collaboration is to produce “synergy”, that is, outcomes that are only possible by working with others. However, effective collaborative functioning is hard to achieve, because various institutions, departments and professionals have different aims, traditions, styles of working and mandates. Overcoming differences to forge productive collaboration is a key challenge to the implementation of innovative health promotion. Collaboration is a multifaceted concept with many synonyms. One person’s ‘teamwork’ can be another person’s ‘alliance’ or ‘collaboration’. Kickbusch and Quick (1998) define health promotion partnerships as the bringing together of “a set of factors for the common goal of improving the health of populations based on mutually agreed roles and principles”. Straus (2002) sees collaboration as problem solving and consensus building. Cooperation and collaboration between organisation units is also risky, and marked by uncertainty regarding a partner’s skills, goals, and reliability, as well as the pair’s ability to work together. This can be cast as an issue of incomplete information, and the most obvious way to reduce uncertainty is to improve the information used in choosing a partner. There are two possible sources: experience and other firms. Past experiences with another unit will both improve abilities to cooperate and yield information about that firm. Successful collaboration involves common knowledge, shared routines, similar ways of thinking, and tacit knowledge, all of which can be built through repeated cooperation. In addition, it also creates trust, both in terms of motives and in terms of competencies. As a consequence, there is inertia in partnership formation, and stability in network structures: firms will, all else being equal, prefer partners with whom they have worked in the past.

A problem is that collaboration may require investment from the NHS, which is justified if the partners realise valued aims that could not have been realised by the partners working in isolation. However, it may also be that one or more partners consider at least part of their investment of time, effort and money to be wasted – resulting in antagony, which is the opposite of synergy. While some waste is perhaps inevitable (‘that meeting was a complete waste of our time!’), when the waste is judged excessive, collaboration may fall in danger of crumbling before aims are achieved. This is among the reasons that many collaborations cease functioning before they have achieved their aims. However, recent experience is that public health networks can produce economies of scale, enable shared expertise, increase capacity and support professional development across all three domains of public health – health improvement, health protection and health care.  Networks potentially fit well with current moves across local government towards cross-authority collaboration. Future plans need to ensure that the work of existing public health networks is not lost. Within local government, public health networks will offer new opportunities for collaboration, including shared services, intelligence and analysis and cross-authority public health commissioning.

A lot of time inevitably has been lost in a package of unelected reforms costing around £2bn so far, and will continue to be lost if the Health and Social Care Act (2012) is repealed. However, Andy Burnham has promised to move forward by allowing existant structures to do ‘different things’. Either way, Part 3 of the Act is definitely to be reversed under Burnham’s plans, and it seems as if Burnham wants to re-engineer the NHS such that private companies do not participate in ‘economic undertakings’ in such a way that EU competition law is triggered. This, I feel, would be a valuable time for Andy Burnham to admit that, while there is a rôle for competition, there is also a value role for collaboration and solidarity, through which other organisational competencies could be embedded such that key aspects are promoted like innovation or leadership. No experience goes to waste.

The price tariffs political mess might be a taster of the economic mess in the NHS to come



 

 

 

 

 

 

 

Several sectors have tried to address how competition might provide better quality for the customer. The basic hope is that by ‘opening up the market’ to more providers, the private market is more intense, the choice is wider, and customers receive a ‘good deal’. However, there are very few markets in the U.K. where this can be said to have worked. We can all think of the big five in supermarkets, including Tesco, Sainsbury’s, Asda, Safeway and Morrison’s. Earlier this year, 2,000 dairy farmers attended a rally in Westminster to bring attention to the situation. The following weekend they picketed branches of Asda, Morrisons and the Co-operative, which pay less than Tesco, Sainsbury’s, Marks & Spencer and Waitrose. More pickets are expected this weekend, powered by movements such as Farmers for Action and #sosdairy, which has been trending on Twitter. As little as far back as 2011, the Office of Fair Trading (OFT) said it saw clear problems with competitiveness in the audit market, meaning referral to the Competition Commission is almost certain. The OFT said the dominance of by so few firms – PricewaterhouseCoopers, Ernst & Young, Deloitte and KPMG – made it hard for rivals to compete and didn’t allow for companies to switch auditors, creating what critics have described as a dangerous dependence on too few firms.

Today, David Cameron’s pledge to ensure that gas and electricity consumers get  the lowest tariff was thrown into confusion today as the Government staged a partial retreat. Labour accused the Prime Minister of presiding over another “omnishambles” after John Hayes, the Energy Minister, stopped short of  repeating Mr Cameron’s promise on Wednesday of legislation to ensure “energy companies have to give the lowest tariff to their customers.” Last year, John Robertson, a Glasgow MP and member of the Energy Commons Select Committee, called on the regulator to use its toughest penalty – fining suppliers up to 10pc of their turnover – as dual-fuel bills have risen to a record £1,300 per year. In a Commons motion, he claims that recent energy price rises by the “Big Six” are “clear acts of anti-competitive behaviour” . Across these companies – British Gas, npower, E.ON, EDF, SSE and Scottish Power, the maximum fine for their supply businesses could be around £4bn in total, based on last year’s revenues. Mr Robertson wants to see any penalties imposed on the companies put in a “consolidated fund via the Treasury” and dispersed to consumers. He further added: “These companies are pinching money out of the pockets of the poorest people in this country at a time when snow is about to fall and when wholesale energy prices are low. Yet the Government and Ofgem are acting like there is nothing they can do”. The executive director of Which?, Richard Lloyd, has recently written a strongly worded letter to David Cameron: “It’s time to face facts: the energy market is broken. The sector is dominated by a handful of big and powerful players who are seemingly unaffected by the normal competitive pressure of price and customer service.” Reacting to Cameron’s announcement yesterday, Lloyd said: “Legislating so energy companies have to give the lowest tariff to their customers is a big statement from the prime minister and acknowledges that competition in the energy retail market has failed. This is a big moment for consumers, but we must now see these words turned into action and see the detail from the government in the energy bill.”

An obvious solution to increasing the scope for competition is to lower the barriers-to-entry for new entrants to the market. Interestingly, in the new legal services market of England, reported today, the Solicitors Regulation Authority has made a conscious decision not to place too many conditions on new alternative business structures (ABSs), its leader has revealed. Chief executive Antony Townsend said the terms of the licence had deliberately been kept simple for the 33 entities that have been granted ABS status by the regulator so far. Speaking today at the Westminster Legal Policy Forum, Townsend said the aim was not to tie the SRA or applicants ‘up in knots’ and instead to monitor their behaviour after they had become an ABS. ‘We’re supervising appropriately and managing risk appropriately rather than trying to put in place elaborate licensing conditions,’ according to Townsend. The new NHS, which has allowed greater scope for private provision, faces a similar task. In a pamphlet for the King’s Fund by Loraine Hawkins from July 2011, entitled “Can competition and integration co-exist in a reformed NHS?”, it is conceded that much of the public debate about the Health and Social Care Act 2012 has focused on proposals to give Monitor, the sector regulator for the NHS, a duty to promote competition (where appropriate) and to apply national and EU competition law to foundation trusts. The emphasis in Monitor’s competition role will instead focus on prohibiting behaviour that prevents, restricts or distorts competition contrary to the interests of NHS patients. This revised formulation of Monitor’s duties will mirror the language of competition law, instead of using more activist pro-competition language modelled on legislation governing economic regulation of the privatised utilities. However, this is potentially worrying, if the blueprint for regulation of the NHS is a sector where there have been massive problems thus far.

For competition to work in the NHS, it will be necessary likewise to ensure that the barriers-to-entry for new entrants to the healthcare market are not onerous so as to prevent entry, but high enough to ensure quality of healthcare and trust of the public in the reputation in the NHS. “Any Qualified Provider” is a procurement model which clinical commissioning groups could use to develop a register of providers accredited to deliver a range of specified services within a community setting. The model aims to reduce bureaucracy and barriers to entry for potential providers. However, thus far, the NHS market could face the same problems in supermarkets and accounting, with a dominance on a few firms which have a legal obligation to maximise dividend for the shareholder. For example, it was reported only this month that two major players in the private healthcare market, Virgin and Serco, have considerable made strides into the NHS as business gurus claim the private sector is set to cash in on community services. All of this is deeply worrying, as the track history in disasters of privatisation is now getting quite substantial. Other examples are wide-ranging, described here, including railways, hospital cleaning, bus services, prisons, and social care.

Monitor and the regulation of pricing in the NHS



 

Monitor is in its infancy, but, pardon the pun, I would like to describe an example of childbirth to explain the mountain of problems that the new privatised NHS is yet to experience. Consider this a steep learning-curve that not many of us voted for at the last election.

“The new NHS provider licence: consultation document” was issued by Monitor on 31 July 2012 with a deadline for responses determined as 23 October 2012. According to section 5.1 of this Document on pricing,

“One of Monitor’s new functions will be to set prices for health care services funded by the NHS.Accurate pricing is essential to ensure that providers are paid appropriately for services they provide to patients. Accurate pricing information helps GPs, commissioners and providers to plan and budget for health care services to meet people’s needs. Pricing can also be used to encourage providers to improve the quality of services for patients, and to increase the efficiency with which services are provided. If providers are not properly reimbursed, this can reduce the quality and efficiency of care they offer and may, in some circumstances, threaten the sustainability of their services.”

Pricing is pivotal in markets, and will obviously therefore be expected to the subject of considerable scrutiny by competition regulatory authorities. In future, Monitor will be responsible, in partnership with the NHS Commissioning Board, for setting prices for NHS services. Indeed, according to a statement produced on 20 June 2012,

“The Health and Social Care Act 2012 makes changes to the way health care is regulated in order to strengthen the way patients’ interests are promoted and protected. Monitor’s role will change significantly as we take on a number of new responsibilities. We will become the sector regulator for health care, which means that we will regulate all providers of NHS-funded services in England, except those that are exempt under secondary legislation.”

Take for example the cost to the taxpayer of a provider delivering a baby – not the antenatal or postnatal packages, but the cost of the actual labour and peri-partum process (“the package”). Like any other “product” in the market, a supplier will have to price its product carefully, to ensure that it offers a competitive price, but especially to ensure it does not price itself out of the market by being too costly. The price of “the package” might be determined through a number of different ways.

  • Premium pricing (also called prestige pricing) is the strategy of consistently pricing at, or near, the high end of the possible price range to help attract status-conscious consumers.  People might buy a premium priced product because they believe the high price is an indication of good quality.
  • Cost-plus pricing is the simplest pricing method. The firm calculates the cost of producing the product and adds on a percentage (profit) to that price to give the selling price. This method although simple has two flaws; it takes no account of demand and there is no way of determining if potential customers will purchase the product at the calculated price. You only need to consider the complexity of doing the calculation for the package”, e.g. will the provider use cheap epipdural needs for the anaesthesia, will a foundation year doctor (who is cheaper) perform most of the medicine compared to a specialist registrar (who is more expensive, but more experienced, especially in dealing with medical emergencies).
  • Value-based pricing – a price based on the value the product has for the customer and not on its costs of production or any other factor.  The relevant issue is how much would you be prepared to have provider A deliver your baby? This is a subjective issue, not easy to predict.

The problem with premium pricing is that providers can collude lawfully to set their prices as high as possible between them. Price fixing is illegal under Article 101 TFEU of the European Union:

 Article 101

(ex Article 81 TEC)

1. The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:

(a) directly or indirectly fix purchase or selling prices or any other trading conditions;

(b) limit or control production, markets, technical development, or investment;

(c) share markets or sources of supply;

(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void.

3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of:

– any agreement or category of agreements between undertakings,

– any decision or category of decisions by associations of undertakings,

– any concerted practice or category of concerted practices,

which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:

(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;

(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.

It has been incredibly hard to prove price-fixing, but numerous examples exist.

For example, the Daily Mail recently reported price-fixing at the petrol pumps:

“Motorists are being ripped off by profiteering oil companies and speculators, MPs suggested yesterday.They demanded an inquiry into allegations of price-fixing at the pumps, and called for the Government to replace its planned fuel duty rise with a windfall tax on oil company profits.

And last year they reported on the price-fixing of milk:

“Supermarkets and dairy firms have been fined almost £50million over price rigging on milk and cheese that cost families £270million. The collusion put up the price of milk by 2p a litre – 1.2p a pint – and added 10p to the cost of a 500g block of cheese. The punishment was announced by the Office of Fair Trading, following an investigation triggered by whistle blowers at the Arla dairy company. First revealed by the OFT in 2007, the ‘Great Milk Robbery’ took place in 2002 and 2003. But only now has a fine of £49.51million been handed down.”

For Monitor, regulating this will be a mammoth task. Private health providers have much scope for setting between them the most profitable way of delivering the patient’s baby, and it is a great market to be in: the country will never be short of a need for providers of safe deliveries of babies. Whilst other metrics might be important to the clinician, such as mortality or morbidity (infection rates), it could be that private providers are distinguished most themselves by the least cost to a GP practice. Or, it could be that people are genuinely fickle about not caring about who picks up the tab, but the preferred private provider might provide “extra frills”, like en-suite TV with 80 channels.

The problematic issue is what happens if an unconventional problem comes out-of-the-blue. The mother might experience a rare type of headache, such as trigeminal autonomic neuralgia (“TAN”), and there is effectively no “patient choice” involved, save for the GP having to refer the patient to a specialist unit like Great Ormond Street Hospital (“GOSH”). You will notice here that the quality of patient choice is nothing to do with the innovation of the private health provider (can a private provider suddenly make the five stages of labour turn into a more profitable six?), nor indeed how “competitive” the market of private providers of childbirth is (can we get down the speed of the first one from an average of 48 mins to 44 mins?). It is, however, entirely to do with the skill of the clinician in making a rare diagnosis, and having the astuteness of having a specialist unit such as Great Ormond Street Hospital deal with it safely, whatever the cost. You must note that I give this example of TAN at GOSH completely at random, and any similarity to a real-life scenario is of course completely unintentional.

 

Junior Lawyers Division – Competition 2012



 

Junior Lawyers Division

ESSAY COMPETITION 2012

What impact should the Legal Aid Sentencing and Punishment of Offenders Bill have on the Legal Education and Training Review?

First prize – £500

Runners up – £250

Maximum 2,000 words

Deadline for submissions – 23 July 2012

Entries welcome from those with SRA enrolled student status only – e.g. LPC students, post LPC students working as paralegals and trainee solicitors

For further information visit www.lawsociety.org.uk/juniorlaw

 

You can follow the Junior Lawyers Division on Twitter at @juniorlawyers

Talk this evening 6.15pm @BPPLawSchool Holborn on innovation implementation in technology



This evening, I will be giving a presentation in room 2.6 here in the BPP Law School, Holborn, on disputes involving Apple, Samsung and HTC involving tablets and smartphones.

The learning objectives of this talk are as follows:

  • To give an overview of two disputes in intellectual property between multi-national parties in the technology sector.
  • To contextualise the importance of two intellectual property rights (patents and design rights) in how multinational companies create ‘competitive advantage’.
  • To improve the “commercial awareness” of applicants for training contracts this summer.

I wished to give an explanation of how multi-national companies involved in technology use innovation to create competitive advantage to generate profit, but look at it from the perspective of the industry of intellectual property protection in the form of design rights (tablet) and patent (“slide-to-view” mechanism of smartphones).

The handout for this talk is here.

Students on the LPC might find the talk interesting  as these intellectual property rights have been introduced on the Legal Practice Course special elective on commercial law and intellectual property. The subject-matter is also a valid topic for a recent interesting example of ‘commercial news’, which might be aired in the training contract application form or in the interview itself.

A “calico” – all will be revealed….

Legal Awareness Society Competition: The best verbal reasoning question



The aim of this competition to select the best verbal reasoning question.

Winners of this competition will be sent a copy of this book which I will pay for personally. Gary and David (authors) have nothing to do with the idea or implementation of this competition. Also, the winning answers will be put into the databank of questions of the Legal Recruit platform, an independent website for law students to practice online verbal reasoning skills. This platform is not affiliated with any other entity (including law firms or law education providers.)

 

 

 

 

 

 

 

 

(Ignore the “Look Inside”)

 

The English Legal System 2012 – 2013

Gary Slapper is Professor of Law, and Director of the Centre for Law, at The Open University, and writes a legal column for The Times. David Kelly was Principal Lecturer in Law at Staffordshire University.

Slapper and Kelly’s The English Legal System explains and critically assesses how our law is made and applied. Annually updated, this authoritative textbook clearly describes the legal rules of England and Wales and their collective influence as a sociocultural institution.

This latest edition of The English Legal System presents and analyses changes made to the legal system by the coalition government, and digests recent legislation and case law. The Constitutional Reform and Governance Act 2010, the Crime and Security Act 2010, the Coroners and Justice Act 2009, new European law, and the latest decisions of the Supreme Court are all incorporated into the text, and this edition also digests recent research on the work of juries and the criminal courts, and the 2011 changes to the regulation of, and Government contributions towards, legal services.

Key learning features include:

  • a clear and logical structure with short, manageable, well-structured individual chapters;
  • useful chapter summaries which act as a good check point for students;
  • sources for further reading and suggested websites at the end of each chapter to point students towards further learning pathways;
  • an online skills network including how tos, practical examples, tips, advice and interactive examples of English law in action.

Relied upon by generations of students, Slapper and Kelly’s The English Legal System is a permanent fixture in this ever evolving subject.

Competition rules

1. The subject of the verbal reasoning question must be in one of 15 subject areas:  biology, business, economics, education, engineering, environment, geography, geology, health and safety, human relations, medicine, modern languages, physics, technology, and transport.

2. The passage must be written in perfect English, using correct spelling and grammar, and contain sentences of reasonable length. It must not have any political nature, nor potentially or actually offend any laws of the UK.

3. The passage should be around 130 words, and be followed by two statements. These statements should either be clearly true, clearly false, or neither clearly true nor clearly false. A definite answer should be produced for each of the two statements, with an uncontroversial explanation as to the answer.

4. An individual can make more than competition entry. However, all passages and pair of questions/answers should be consistent with rules 1-3 above.

5. By entering this competition, you agree to the questions/answers being used, if it is correctly set,  on the online Legal Recruit platform; and you also share copyright for the material with Legal Recruit.

6. The judge’s decision is final. This competition will conclude 5 pm June 30 2012. Entries must be made by email to enquiries@legal-recruit.org

 

@andyburnhammp with @JustinonWeb: NHS bill has left service 'demoralised, destabilised and fearful of the future'



From this morning’s Radio 4 ‘Today’ programme, an interview by Justin Webb of Andy Burnham MP Shadow Secretary State for Health.

 

 

This transcript is to the best of my ability, and is (c) of my blog and cannot be reproduced without my express permission. There are precise words here in this particular transcript.

 

Justin Webb

Labour’s view is clear. Mr Cameron himself must show leadership, grasp the nettle, and drop the Bill. The Bill being the Health and Social Care Bill, the hugely controversial reorganisation of the health service in England, and that Bill being back before the House of Lords today, with Labour hoping to damage it further by getting the government defeated on crucial provisions – including a new rule which would allow hospitals to raise up to 49% of their income from private patients, provided that money were ploughed back into NHS services. The Government says that Labour is launching an opportunistic attack, with no real sense of a properly thought-through alternative. The Shadow Health Secretary is Andy Burnham, and is on the line now. Good morning to you.

Andy Burnham

Good morning.

Justin Webb

Can we deal with that 49% thing first – what is it that you object to? You allowed, didn’t you, hospitals to make some money from private patients, but it was capped quite low. The Government simply wants to raise that cap.

Andy Burnham

We did Justin. We did Justin but it was carefully controlled, activity at the margins of the hospital. This Bill would take it up to a whole new level allowing the hospital to earn up to half of its income from treatment of private patients, so that’s 1/2 of appointments, theatre times, beds, car park spaces, devoted to the treatment of private patients.

Justin Webb

But  no – they’d have to build extra to do it. They wouldn’t be taking existing NHS beds and turning them private?

Andy Burnham

That’s the point isn’t it? They wouldn’t have to. The effect could be that NHS waiting lists get longer, and people simply won’t accept that with hospitals built with taxpayers’ money which should be focused on treating NHS patients.

Justin Webb

Why would that be? They wouldn’t be focused on it, they’d be raising money from it which would be ploughed back into the NHS.

Andy Burnham

The Government’s Bill is producing a competitive market. They’re essentially saying to all hospitals that they’re on their own. You’ve got to find the money to survive. That’s a big break with NHS history. We’ve had a system which has been collaborative where systems support each other. They’re saying, with this Bill, to hospitals that they’re on their own – they’re saying to them that it’s a competitive market, you’re on your own, and you have to use these freedoms to protect your bottom line. My fear is that they would begin to devote more time for private patients squeezing NHS patients out, and that will be a return to the bad days of the NHS where people were told ‘wait longer, or go private’.

Justin Webb

But again, under Labour, independent sector treatment was introduced, wasn’t it? In NHS hospitals, treatment centres were introduced,  run by private organisations, some would say they worked rather well, an element of private competition introduced by Labour and working?

Andy Burnham

That’s true we did, and that capacity allowed us to deliver lowest-ever waiting times in the National Health Service. The context was different, Justin. Let me explain that. We introduced those providers within the context of a planned collaborative system, so that the extra capacity was managed. And by the end of our time in government, around 2% of operations were conducted in the private sector. That gives you an idea of the type of scale we introduced.

Justin Webb

Yes, but that’s terribly important. You say collaborative, but it wasn’t entirely collaborative, in that there was an element of competition – which was terribly important wasn’t it? The point of doing it was to “gee-up” the NHS, in order, in this specific case … to get waiting lists down, which it did, didn’t it? It wasn’t entirely collaborative, in that there was an element of competition then that was terribly important.

Andy Burnham

Competition was with controls, that’s my point. The Bill takes the controls away – takes the brakes away off the system. This Bill would throw up the NHS to the full force of NHS competition law where every contract which takes place will be open to competitive tender. That is a huge change from the NHS we left behind – we had collaborative NHS with good standards of care. That’s the question that I keep on coming back to: why on earth are the Government turning it upside down? They inherited a self-confident NHS, and in just 18 months they’ve turned it into an organisation which is demoralised, destabilised and fearful of the future.

Justin Webb

Here might be why. While there was increasing spending and waiting lists came down, there’s no doubt that productivity reduced? It is actually inconceivable that the NHS can carry on in the future in the way that the NHS is organised currently. We won’t be able to afford it, and if we want to be able to provide the health for ourselves, run the health service for less than 10% of GDP which you do as much as the Government does, we have to find a way of delivering the service in a better way, and a more productive way?

Andy Burnham

I am afraid I don’t accept the premise of your question. NHS is one of the most efficient systems in the world. That’s what the independent experts tell us.

Justin Webb

The National Audit Office in 2010 said that taxpayers were getting poorer value for money than 10 years previously.

Andy Burnham

Well, the Independent Commonwealth Fund makes a comparative study of health systems around the world, and repeatedly tells us that the NHS is one of the most efficient systems in the world. We do spend less than 10% of GDP, but that’s not the case in other countries in France, the Netherlands, and certainly not in the United States. That’s why market-based systems tend to cost much more, A National Health Service gives you an ability to control costs. If you break that, the market runs riot. More broadly, you mention efficiency. It was a catastrophic mistake, in my view, that, when the NHS is facing such huge financial challenge, they’ve allowed existing systems to disintegrate.

Justin Webb

In a word, then, you think the Bill can now be defeated?

Andy Burnham

Yes I do. All around there is a consensus that it is better to work through existing systems than to carry forward this dangerous re-organisation. The Government has abjectly failed to build a professional consensus behind the Bill. My offer still stands, Justin. I have no objection to building GP-led commissioning. This Bill will damage the NHS at this particular time.

Justin Webb

You’ve already introduced that in the past, haven’t you?

Andy Burnham

Yes I have. This Bill will damage the NHS at this particular time.

Justin Webb

Andy, we’ve got to leave it there. Thanks.

Burnham: NHS bill has left service “demoralised, destabilised and fearful of the future” (mp3)

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