It’s easy to lose sight of Labour’s fundamental question in terms of the economic model; viz, whether the State should, in fact, intervene in any failing #NHS healthcare (in a financial sense).  That is what distinguishes it from neoliberal models of healthcare, including the New Labour one. It is a reasonable expectation that the healthcare regulators will uphold professional standards of the medical and nursing professions, whether in the public or private sector.

One of the most memorable experiences in my whole journey of the section 75 NHS regulations was Richard Bourne, the Chair of the Socialist Health Association, asking me what would probably happen at the end of the day. I originally replied saying that I was not an astrologer, but, as I thought about that question more, I became totally convinced it was a very reasonable question to ask. In management, private or public, when one is uncertain about the outcome, a perfectly valid tool is the ‘scenario analysis’, where one considers the various options and their likelihood of success. Also, if you really don’t know what the eventual outcome is, which might be the case, say, if you have to produce a complicated budget for the whole of the next year, you can to some extent ‘hedge your bets’ by doing a rolling forecast which updates your plan on the basis of virtually contemporaneous information.

Section 75 NHS regulations had become a very ‘Marmite issue’. Richard was right to pick up on the fact that the world would not necessarily implode with the successful resolution by the House of Lords of the second version of the regulations. On the other hand, the event itself marked a useful occasion for us all to take stock of where the overall ‘direction of travel’ was heading. Wednesday’s charge, led by Lord Phil Hunt, was as ‘good as it gets’. Reasons for why Labour in places produced a lack lustre attack is that some individuals themselves were alleged to have significant conflicts of interest, or some elderly Peers were unable to organise suitable accommodation so that they could negotiate the ‘late night’ vote. Lord Walton of Detchant, whom all junior neurologists will have encountered in their travels at some point in the UK, said convincingly he had a look at the Regulations, and felt that they would be OK even given the ‘torrent’ of communication he had personally received about it.

I certainly don’t wish to rehearse yet again the arguments for why the section 75 NHS regulations appears to be farming out the NHS to the private sector, but in the 1997 Labour manifesto, where Tony Blair was likely to win, Labour promised to abolish the purchaser-provider split. It didn’t. Labour likewise is promising now the repeal the current reincarnation of the Health and Social Care Act. It might not. There is substantial brand loyalty to Labour, over the NHS, such that the Conservatives would find it hard to emulate the goodwill of the public towards it that is shown to Labour. Given that the market has been implemented in the NHS, the Conservatives and Liberal Democrats are now arguing that they wish to make the market ‘a fair playing field’, which is of course a reasonable aspiration provided that a comprehensive NHS can be maintained for the public good.

Many have no fundamental objection to running a NHS most efficiently. I often find that health policy experts who have little clinical knowledge find themselves going on wild goose chases about efficiency in the NHS. For example, I remember the biggest barrier to progressing with a patient with an acute coronary syndrome is that it would be impossible to get a troponin blood result off the HISS computer system for hours, such that you would be forced to track somebody down from the laboratory itself. Co-ordinated care can mean better care. The best example I can think of is where a GP prescribes Viagra for a man with erectile problems in the morning, the patient collects all his new medication from the local chemist, the patient then takes the first tablet around lunchtime, the patient has sex with his partner in the evening, but unfortunately attends A&E in the evening for angina (chest pain). Modern advice (for example here)  would argue that an emergency room should take a very cautious approach in administering nitrates, a first line medication for angina, within 24 hours of a dose of viagra. What a Doctor would do in this particular scenario is not something I wish to discuss, but it is simply to demonstrate that patient care would benefit from ‘joined up’ operational processes, where the emergency room doctor had knowledge of what had been prescribed etc. that day.

So, it probably was no wonder that there was ‘muddled thinking’ all round. Baroness Williams is a case in point. She acknowledges that many in the social media think that she personally, with the Liberal Democrats en masse, has ‘sold out’ on the NHS. And yet she talks about a deluge of misinformation from organisations such as 38 degrees who cannot be shot for being the messenger for a concerned public; that presumably is consistent with the Liberal Democrats yearning for ‘a fair society’? Lord Clement-Jones attacked the person not the ball, advancing the argument that lawyers will always provide a legal opinion which favours the client. However, many agree with David Lock QC in his concerns on how the legislation could be interpreted to go further than the previously existant legislation from Labour over the Competition and Cooperation Panel. Indeed, Labour in the late 2000s had tried to legislate for public contracts, with attention to how their statutory instruments might be consistent with EU competition law.

However, the muddled thinking did not stop there. Only a few people consistently explained why the regulations were a ‘step too far’, and it is no small achievement that the original set of regulations had to be abandoned. The general public themselves can be legitimately blamed for muddled thinking. The general impression is that they resent bankers being awarded bonuses, resent the explosion of the deficit due to the banking crisis, but did not wish the banks to implode. The general impression is also they are happy with the previously high satisfaction ratings of the NHS, do not wish the NHS budget to be cut, and yet do not want ‘failing NHS trusts’ to be shut down altogether. Meanwhile, the Francis report exposed sheer horror in how some patients and their relatives or families experienced care from the NHS, and there are concerns that similar phenomena might be exposed in other Trusts. All of this is totally cognitively dissonant with the idea of ‘efficiency savings’ in the NHS, with billions of surplus being given back to the Treasury instead of frontline patient care. The issue about whether private companies should be allowed to make a profit from healthcare is a difficult one, when compared to an issue of whether parents can have a ‘choice’ as to whether to send their children to independent schools. However, many members of the general public would prefer any profit made in the NHS to be put back into patient care, rather than lining the pockets of shareholders or producing healthy balance sheets of private equity investors. The section 75 NHS regulations has done nothing for a discussion about how to maximise patient safety, nor the value of employees in the NHS. Managers in the NHS appear to be pre-occupied with ‘excellence awards’, innovation and leadership, but appear to have lost sight of the big picture of the real distress shown by some working at the coal face in the NHS.

Monitor, the new economics healthcare regulator, has a pivotal part to play; but they are an economic regulator ensuring fair competition, so it is hard to see as yet how they can best secure value for the patient rather than dividend for the providers. This is a Circle to be squared (pardon the pun). Possibly the only way to ensure that the NHS does not become a ‘race to the bottom’ (where “I don’t care who provides my healthcare as long as it’s the most efficient” becomes “I don’t care who provides my healthcare as long as it’s the cheapest and delivers most profit for the private provider)” is to ensure that people who are clinically skilled are involved in procurement decisions, or in regulatory decisions. This is the only way where yet another one of Earl Howe’s promises might be fulfilled; that local commissioners can commission services, even if they are only available from the NHS, if it happens that ‘there is no alternative’. Possibly doom-and-gloom is not needed yet, but it cannot be said that Lord Warner did much to inspire faith as the only Labour peer to vote against Labour’s “fatal motion”. Many people did indeed share the sense of despair felt by Lord Owen before, during and after the debate. However, Labour has to react to the present and think about the future. It cannot rewind much of the past, for example current PFI contracts in progress. The public have already exhausted themselves with the debate over ‘who is to blame over PFI?’, where both Labour and Conservatives have contributed in different ways to the implementation of PFI, and there are still some who believe that the benefits of infrastructure spending through PFI are yet to be seen. But blaming people now is probably a poor way to use precious resources, and there is a sense of ‘in moving forward, I wouldn’t start from here.’ Labour has to think now carefully of what exactly it is that it intends to repeal and reverse. Its fundamental problem, apart from sustainability, is to what extent the State should ‘bail out’ parts of the system which, for whatever reason, aren’t working; but this is essentially the heart of the neoliberal v socialism debate, without using such loaded language?

Shibley tweets at @legalaware.