This post is inspired by brief discussions I’ve had with Sunny Hundal where Sunny asked me lots of questions I couldn’t answer!

Of course, Labour is clear that they oppose the NHS Health and Social Care Bill. What they had not been clear to me about is why they oppose it, though I am very grateful to Sunny Hundal for pointing me in the direction of the ‘Drop the Bill’ website which establishes five important alleged concerns of the Bill: postcode lottery, longer waiting times, privatisation, damaged doctor-patient relationship, and waste.

Labour and supporters bandy around the statement ‘It is privatising the NHS’. This is indeed a very good way of looking at it, as the fundamental thesis is that there will be a greater role for the private sector in the provision of health services for England.  To ignore the existing contribution of the private sector in the NHS is complete nonsense, however. NHS budgets operate millions of pounds, and the private sector is clearly involved. Most people in the general public have heard of NHS procurement, or “NHS logistics”; many people, in both the private and public  sector are somehow enmeshed in the NHS ‘supply chain’. In fact, at least with privatisation, according to the aspiration of Baronesss Thatcher, there is public ownership of the infrastructure. The worrying aspect here is that NHS entities can be bought by hedge funds or even foreign investors, as part of a multinational investment, and indeed Ed Miliband might be right after all – corporate entities might wish to sell bits off the NHS ‘for a quick buck’ in his much derided speech on corporate social responsibility last year. There is as such not illegal, but many will not agree with this sensitive corporate handling of key infrastructure assets.

A more mature intelligent debate is to consider why precisely the NHS Health and Social Care Bill does not make sense. It firmly places the NHS in private hands, and it is worth scrutinising carefully at this point what the legal entity of the NHS Trust is.

If it is a private limited company under law, it is under legal obligation to maximise shareholder dividend, and the question then becomes who exactly are the shareholders, and how will their profits from NHS patients be used? One assumes that NHS Trusts will be subject to all aspects of company law, such as insolvency law and competition law inter alia. How is competition going to work? And are entities going to offer products or services that are ‘profitable’? What about dementia, for example? I am worried about the fact that this could lead to major imbalances in service provision at both primary care level and in NHS Trusts. How is the Tory-led Government going to ensure that apples are not unfairly compared to bananas in this new free market of the NHS? This involves a complex understanding of how products and services are going to be costed in the new NHS; will they be simply the cost of providing the products or services, or will some corporate entities wish to undercut other suppliers by ‘penetration pricing'; or will some suppliers price themselves at a high price to denote high brand value, for example for ‘the best hip operation in town’? For that matter, how does the Bill deal with measuring benefits and outcomes for the patient, rather than the corporate supplier?

I believe strongly that we will almost have to invent a new entity in law to cover NHS trusts, if it is not the private limited company or charity under the Companies Act or Charities Act. I do not feel that such strategic change will succeed in management for one clear reason, anyway. In any such rushed strategic change, you must have follower support; so even if the LibDems in the lower and upper Houses act as the lubricant for the Conservative engine in allowing this Bill a clear path to Royal Assent, the implementation of the NHS Bill will almost certainly fail due to lack of support from many GPs, the Royal Colleges, many other health staff, and most importantly the patient. I also feel that, in management, it is going to impossible to implement such organisational structural and cultural change in such a hurry.

Calling the BMA a ‘trade union’ itself is not a trivial point. Trade Unions protect the rights of employees rather than shareholders (unless stakeholders are also shareholders), and therefore if the NHS Bill is enacted without key stakeholder support it will fail. This is because the members of this trade union are not involved in the strategic change process at all well, and feel it is being inflicted without their consent. They also will have much tacit implicit knowledge about the NHS, as well as codified principles, which will be harder to shift without specialist change managers.

However, there is no doubt that somebody does need to look at the management structure of the NHS, which is why I should rather Labour has a constructive input into the debate, on behalf of public sector workers, and if it decides it wishes for blanket obstruction, it should consider urgently an alternative, because it is currently the case there are parts of the NHS which are financial disaster zones. Furthermore, the NHS does not always work well; very many nurses work with poor pay and conditions, but stories about suboptimal care unfortunately do rumble on (especially in elderly care). Finally, there is a strong part of me that believes in a system where we all share risk in a National Health Service by paying a contribution – this is where reform of the tax system is vital, as the NHS is currently paid for out of income tax mainly to my knowledge. If private enterprises are allowed wholly to run the NHS, it could be that the business entities which go out of business are those where there are particular ‘hotspots’ of disease due to an unfortunate combination of nature and nurture, for example chronic obstructive airways disease in coal miners in Wales, or high incidence of cardiovascular disease in Bengali immigrants in Tower Hamlets. Health inequalities are a serious problem for medical care, and replacement of the NHS with increased private input for entities to run at a profit would be a serious threat to that.

That’s the sort of debate I wish for why I oppose the NHS Health and Social Care Bill. And what about Dilnot also?

This is a personal view of @legalaware, and does not represent the views of the BPP Legal Awareness Society, nor of BPP.