Julie Bailey

The Health and the Social Care Act (2012) is a massive tome. It actually reads, for lawyers who are well acquainted with such statutory instruments, like a huge patchwork quilt of commercial and corporate law strands. While voluminous, at 473 pages, it has two critical clauses. The first is section 75, and its concomitant now famous Regulations, which provides the statutory basis for procurement contracts in the NHS to be put up for price competitive tendering as the default option, thus fixing the NHS in a competitive market of an economic activity. This is of course the mechanism for outsourcing NHS services into the private sector, and indeed the vast majority of contracts have now been won by the private sector. This was widely predicted, as the private sector have skills and resources to make slicker bids, irrespective of the bid they ultimately deliver, to transfer a much higher proportion of “NHS services” into the profit-making private sector. All of this costs the NHS more money sadly, as while it may not matter to you ‘who provides your services’, you’re in trouble if the private provider goes bust, and you’re not paying for anything at anywhere near cost-price because of the mark-up for profit. This section 75 clause acts in tandem with section 164(1)(2A) which allows any NHS hospital to receive up to 50% of its income from private sources. Thus the Act, and the £2.4 NHS “reforms”, have been a bonanza for the private sector, and disastrous from the perspective of a state-provider of universal, comprehensive healthcare.

Patient safety is in fact only mentioned once in the Act, in clause 281. That is in reference to the abolition of the National Patient Safety Agency. The National Reporting and Learning System which was hosted by NPSA has a two year stint at Imperial College Hospital NHS Trust, while a tender process is scoped and developed by the Board. NPSA’s responsibilities concerning patient safety will transfer to the NHS England.

The Health and Social Care Act 2012 (c. 7) is an Act of the Parliament of the United Kingdom. It is the most extensive reorganisation of the structure of the National Health Service in England to date. It proposes to abolish NHS primary care trusts (PCTs) and Strategic Health Authorities (SHAs).  The Act’s proposals were not discussed during the 2010 general election campaign and were not contained in the 20 May 2010 Conservative – Liberal Democrat coalition agreement, which declared an intention to “stop the top-down reorganisations of the NHS that have got in the way of patient care”. However, within two months a white paper outlined what the Daily Telegraph called the “biggest revolution in the NHS since its foundation”.  The white paper, Equity and Excellence: Liberating the NHS, was followed in December 2010 by an implementation plan in the form of Liberating the NHS: legislative framework and next steps. The bill was introduced into the House of Commons on 19 January 2011, and received its second reading, a vote to approve the general principles of the Bill, by 321-235, a majority of 86, on 31 January 2011.

The British Medical Association opposed the bill, and held its first emergency meeting in 19 years, which asked the government to withdraw the bill and reconsider the reforms. A later motion of no confidence in Lansley by attendees at the Royal College of Nursing Conference in 2011, however, succeeded, with 96% voting in favour of the motion. Nurses have consistently been opposed to the the  “efficiency savings” measures being undertaken across the NHS, with many raising concerns of their material impact on frontline medical services. “People will die”, Richard Horton, editor of The Lancet, warned in March 2012, as he predicted “unprecedented chaos” as a result of the reforms, with a leaked draft risk-assessment showing that emergencies would be less well managed and the increased use of the private sector would drive up costs.

The Bill is now Law, and where are the measures to deal with this longrunning problem of patient safety, particularly in the acute setting? There are none. The media was sent into overdrive in portraying the NHS has a “death machine”, despite the best attempts of nurses and Doctors to run the service under difficult conditions. The publication of the damning Keogh Report (“Report”), which spelt out the failings of 14 hospital trusts which did not quote “13,000 “needless deaths” since 2005″, is despite exhaustive pre-briefing to the media. The Report depicts a situation in certain trusts where patient safety is poor, with no reference to what action has been taken by the Government and their civil service to remedy this since the General Election in May 2010, which the Conservatives lost. Sir Bruce Keogh, the NHS’s Medical Director, will describe how each hospital let its patients down through poor care, medical errors and failures in management, but the Report is as if the clinical regulatory bodies do not exist, the General Medical Council, the Nursing and Midwifery Council and the Care Quality Commission. How they have escaped blame for this reported ‘scandal’ is incredible, although one suspects the media will catch up with them eventually. It might be that the media for whatever reason known to them do not feel the clinical regulators are in “the firing line”, despite being supposed to be responsible for patient safety, in the same way that lawyers are not responsible for the global financial crisis despite being supposed to regulated on the safety of financial instruments.

From a management point of view, the Keogh Report serves a function for convincing the public of a need to take patient safety extremely seriously. However, to sell the Keogh Report as “Do you now see the need for the NHS reforms?” maybe hitting a target but missing a crucial point. The NHS reforms are all to do with outsourcing and eventual privatisation of the NHS. They are nothing to do with patient safety, as even right-wing think tanks and their spokesmen have previously conceded in public. In fact, it is worse than that. The £2.4 reorganisation which nobody voted for, but which private healthcare companies extensively lobbied for, was a reckless missed opportunity to put resources into something other than frontline care, and the opportunity cost of this piece of legislation will continue to haunt the general public for many years. Unfortunately, the media and the members of the Establishment, some members of which have tenuous links with the institutional shareholders in private healthcare companies, will be more than aware of this hard fact. The Conservatives are desperate to pin every conceivable woe of the NHS on Andy Burnham, and every interview which Burnham now does must feel like “Groundhog Day” for him. He has nothing much more in his defense. Meanwhile, the Conservatives are exasperated that they have been unable to get the Burnham scalp, but there are as yet unresolved issues about what Government departments have done about NHS complaints in the last three years since May 2010. The bottom line is that the Health and Social Care Act is nothing to do with patient safety: even safety campaigners in the NHS know this, and they know of the even worse battle now facing them, of a fragmented privatised NHS which is even harder to regulate from that point of view.  The NHS reforms, and more specifically the Health and Social Care Act which underpins them, have nothing to do with patient safety. More disturbingly, the Keogh report, when eventually published, will not stop ‘another Francis’, and it is entirely the Government’s fault we are in this stupid ridiculous position.