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The Kailash Chand Factor
In terms of experience and knowledge about the NHS, this is no time for a novice.
Dr Kailash Chand OBE, to put it politely, is old enough to be Dr Dan Poulter’s elder and wiser uncle. Whereas Poulter gives the impression of being a hapless junior on a ward round who hasn’t had enough time to tabulate all the recent full blood counts, Chand behaves like a senior consultant who is also worried about whether the patient had a good night sleep.
The problem for the Labour Party is wondering what on earth they have ended up with. At first, Labour promised to abolish an internal market, only to re-introduce one in the form of the iconic ‘purchaser provider split’. Chand is more than aware of budget sheets being crippled by the private finance initiative loan repayments, even though this policy was introduced to improve the infrastructure of the service.
It is all a curious mystery how the Labour Party became so keen on harmonising procurement legislation with Europe. It could of course be coincidental that Tony Blair was President of the Council of Europe for July – December 2005, just before the Public Contracts Regulations popped out in 2006. It is equally unclear to what extent New Labour was keeping the bed warm for the private providers who wanted a slice of the “NHS nooky”.
Labour cannot be blamed for wishing to campaign on the NHS, but the NHS chimaera that exists today cannot be said to be divorced from the policies introduced by Labour in its period of government. The NHS, overall, has suffered, as Chand puts it himself, from ‘death by about thousand privatisations’.
I can never remember whether Kailash Chand has been a member of Labour for over 25 years, or has been a GP for over 25 years. But either way it doesn’t matter. Both facts are on the public record, so is Chand’s commitment to fighting the current Coalition government on policy which he claims vociferously is not in the best interest of patients.
I, of course, like the fact that he regularly contributes to the medical press, and has held various offices of responsibility; but I should like the Labour Party to make full use of his formidable intellect, preferably with the Labour Party in government from next year; and his enormous undoubted popularity with the driver of his democratic ambition, people who are fed up to the back teeth with his Government.
I don’t happen to agree with Dr Gordon Brown on some things, such as wishing to be so intensely relaxed about the City of London (I am of course vicariously attacking Brown when this was a remark made by Lord Mandelson).
But as regards Kailash Chand’s full potential – no doubt there will be lots of new talent next year in think tanks and so forth, but this is possibly no time for a novice. Chand needs to be at the heart of decision making.
It's time we spoke about the "friends and family test"
Friends and family test
Mr David Cameron introduced ‘the friends and family test’ (FFT) at the beginning of this year. However, the FFT is based on a model developed to test satisfaction with consumer products. Clare Gerada, Chair of the Council of the Royal College of GPs, rightly questioned whether friends and family are proper judges of the NHS in all its complexity:
“The NHS isn’t Facebook, and healthcare isn’t a commodity like eating in a restaurant. And we must make sure that we don’t confuse issues around the NHS such as shortages, with the care that patients get from the staff that look after them.”
Dr Kailash Chand from the BMA Council likewise posited,
“Who can disagree with that?”.
Prof Peter Lynn, an expert on survey methodology from Essex University, says the findings may be unreliable.
“I have concerns about whether the friends and family test will actually provide data that allows meaningful comparisons of the performance of trusts – partly because of reliance on a single rather vague question and partly because hospitals will vary in how they approach patients and encourage them to answer the question.”
The government insists the test will give everyone a clear idea of where to get the best care, without piling costs on trusts. It says by checking on the NHS choices website, people will be able to see which trusts are in the normal range, those among the best and those among the worst.
Meanwhile, in a different sector, owners of pubs, restaurants, hotels and bars are all too familiar with “TripAdvisor”, which is loved and loathed in equal measures.TripAdvisor, which claims to have 75 million online reviews, allows people to post anonymously and without even proving they have been to the place in question. Getting a high or low rating can make or break a business. Chris Emmins of KwikChex, which investigates online reviews, believes there are as many as ten million fake reviews on the site by ‘trolls’ – someone who posts a deliberately provocative message with the intention of causing maximum disruption – who are either disgruntled former employees or rival businesses.
Emmins said:
“It’s war out there. Getting a top rating is crucial and yet one bad one-star review can hit the ratings so hard that it takes 20 five-star reviews to get the rating back.”
This is a wider example of the phenomenon called “shilling” in marketing. A shill, also called a plant or a stooge, is a person who publicly helps a person or organization without disclosing that he has a close relationship with that person or organisation. “Shill” typically refers to someone who purposely gives onlookers the impression that he is an enthusiastic independent customer of a seller (or marketer of ideas) for whom he is secretly working. The person or group who hires the shill is using crowd psychology, to encourage other onlookers or audience members to purchase the goods or services (or accept the ideas being marketed). Shills are often employed by professional marketing campaigns, and there is a danger that, like the original FFT has been imported, the practice of “shilling” could be imported too. Shilling is illegal in many circumstances and in many jurisdictions, because of the potential for fraud and damage, however, if a shill does not place uninformed parties at a risk of loss, but merely generates “buzz,” the shill’s actions may be legal. For example, a person planted in an audience to laugh and applaud when desired, or to participate in on-stage activities as a “random member of the audience,” is a type of legal shill.
Legal proposals on the repeal of the Health and Social Services Act [2012]
Andy Burnham MP, currently Shadow Secretary of State for Health, will repeal the Act, but is due to establish Labour’s official position at Conference later this week. Burnham answered my straightforward question about the Health and Social Care Act (2012) with a simple answer, at the Fabian Society Question Time this evening, hosted by Alison McGovern MP, and a panel also including Owen Jones, Dan Hodges, and Polly Toynbee. I had a very nice chat with Andy at the end, and Andy seemed to be quite impressed that I had read the entire Act carefully ‘from cover to cover’.
Andy reinforced his belief that the Act would be repealed, but he wanted the NHS to further a spirit of collaboration. There’s been a question about, even if the Act is repealed, there are genuine questions about which policy planks might go into reverse. I feel it is unlikely that NHS Foundation Trusts will be revised, and I don’t think commissioning will be done away with, though I am uncertain about the future of ‘clinical commissioning groups’ (“CCGs”). Andy’s indication that existing structures might be asked to do different things gives Andy a bit of lee-way as to the working relationship between NHS Foundation Trusts, or CCGs (or whatever they turn out to be).
Part 3 will be first in the firing line, the Act will be repealed, and the NHS will go back to a system based on collaboration consistent with its founding principles. Critically, this Part of the Act establishes the legislative framework for the sector-regulatory body and its functions, “Monitor”, competition and licensing. My guess is that Andy Burnham MP will find a way for the NHS not to be a free-for-all in an unfettered market. My impression is a lot depends on escaping the EU definition of “undertaking” in EU competition law.
Dr Kailash Chand OBE (@KailashChandOBE), who is the Deputy Chair of the BMA, has this morning voiced in an article in the Guardian grave concerns about CCGs:
“Unfortunately, this proposed new dawn has already been tarnished by the protracted passage of the health bill and the ongoing financial squeeze that could mean there are fewer services available for CCGs to commission. Many GPs are concerned that they could become the administrators of NHS cuts as they are handed responsibility for decimated budgets. The NHS Act 2012 gives CCGs the authority to decide to whom they will provide a service, and what service they will provide. They will be under no obligation to ensure that a whole range of services are available to their catchment population. (There is already rationing of services such as hernia, cataracts and hip or knee replacements). The NHS Act also enables CCGs to enter into joint ventures with private companies to outsource most work to private companies with vested interests, beyond the scope of full public scrutiny.”
The NHS prior to this Act had been immune from a discussion of competition in that the NHS had from this previously is that a regulatory authority for competition, the Office for Fair Trading (“OFT”) did not consider that any public bodies involved in the purchasing or supply of goods or services within the NHS were “undertakings”, and therefore were not subject to action under the Competition Act. In other words, any involvement of these bodies was for “non-economic purposes”. This was reinforced by the EU in relation to a Spanish healthcare case FENIN v Commission in 2006, on the basis that the system concerned operated on the principle of ‘solidarity’. They have therefore exposed some services (which previously would have been provided in-house) to a scenario where they will be considered for competitive tendering. The extension of Any Qualified Provider (albeit with a more limited, phased implementation from 2012) to a wider range of services, and the distancing of the state from acute sector provision in the form of foundation trusts could conceivably weaken the argument against healthcare provision being for “non-economic purposes”, particularly when individual service lines are considered.
This is a highly significant development, I feel, that Andy Burnham could be steering the NHS away from being run for ‘economic purposes’, and this could be the passport for Andy for not becoming enmeshed in lots of complicated domestic and EU law. As it happens, I have a real feeling that European lawyers would prefer not to enmeshed in a complicated discussion about private provision in healthcare, as they feel that competition law is best applied to pure private or commercial entities not involved in social/healthcare policy.
As it stands, the Health and Social Care Act (2012) is a complex interplay of domestic and EU law in the disciplines of company law (including mergers, financial assistance), commercial law, procurement law (including public contracts), regulatory law, insolvency law (particularly administration). However, the law, albeit at nearly 500 pages, does have some notable omissions, such as what happens if a CCG ‘trades’ while going insolvent. Law would have to clarify consider, in its capacity as a ‘body corporate’, whether the CCG were still capable of wrongful or even fraudulent trading.
