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Who exactly is in denial over the Clive Efford Bill?



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The Private Member’s Bill brought forward by backbencher Clive Efford MP passed by 241 votes to 18.

“From crisis to opportunity — putting citizens and companies on the path to prosperity: A better functioning internal market is a key ingredient for European growth” was updated in November 2014.

This publication is part of a series that explains what the EU does in different policy areas, why the EU is involved and what the results are.

It provides that, “The European internal market, also referred to as the single market, allows people and businesses to move and trade freely across the 28-nation group. In practice, it gives individuals the right to earn a living, study or retire in another EU country.”

It further adds that, “It also gives consumers a wider choice of items to buy at competitive prices, allows them to enjoy greater protection when shopping at home, abroad or online and makes it easier and cheaper for companies large and small to do business across borders and to compete globally.”

Not wanting to be part of Europe was of course how the late great Tony Benn used to be in agreement with Enoch Powell, even though they came from totally different political stables.

On 1 January 1973, Britain joined the “Common Market”, the European Economic Community, under a previous Conservative administration.

There has of course been a strident debate as to whether the free movement of capital, so important for capitalism, is inherently compatible with socialism at all.

Being a member of the EU, the UK has to sign up to the rules and regulations of EU law.

The current position of Labour is that the market ideology went too far under previous Labour administrations.

Critics of Labour say that they are still in denial over the “sweetheart deals” to encourage private provision under a previous administration. Labour argues that this private provision was necessary to improve clear a backlog in NHS work which existed at the time, rather than introducing private provision for the sake of it.

Much criticism centres around the “independent sector treatment centres”. John Rentoul unsurprisingly found himself in agreement with the approach Labour took at the time.

Many still within Labour still loathe what happened here. NHS campaigners affiliated to other parties have been critical of Labour in inadvertently contributing to the privatisation of the NHS, and are concerned it will happen again.

Critics point to unconscionable transactions under the private finance initiative, for example.

But historically this strand of policy started under a previous Conservative administration under Lord Major.

Clive Efford MP even referred to his local hospital in Eltham having been set up as the country’s first PFI hospital in last week’s debate on “The Clive Efford Bill”.

PFI Efford

Given that we are under treaty obligations, unless there were a radical renegotiation of an unilateral exemption of the market aspect of the EU, we are stuck with a market in some form.

To argue otherwise would be in denial.

None of the front team of Labour have argued for abolition of the market altogether, to my knowledge.

But that is not to say that the ‘purchaser provider split’ might be abolished internally within England, notwithstanding treaty obligations.

The argument is that the market costs billions as it introduces “transaction costs”. The ‘household analogy’ is often used to explain the diversion of resources needed to monitoring the various transactions within a household at microlevel.

The market has become particularly problematic for the NHS, as was widely predicted before the Health and Social Care Act (2012). I myself wrote an article on the impact that section 75 Health and Social Care Act (2012) would have on the Socialist Health Association blog on 7 January 2013.

And the former CEO of NHS England, Sir David Nicholson, himself drew attention to how it had become a magnet for competition lawyers.

This was entirely to be expected as it was this clause which signalled a marked diversion from previous law under the most recent Labour government (viz section 76 sub 7 Health and Social Care Act 2012).

76 7

Elsewhere in the legislation it says that you do not have to put contracts out to competitive tender if there is only one sole bidder, which hardly ever happens.

To deny that the current legislation departs from the previous legislation is, arguably, denial.

So the “Clive Efford Bill” was finally debated last week. You can read it here. The official explanatory notes for the Bill are here.

The guidance given to the legislature is useful.

For example, for clause 6, it is provided: “The clause also enables the NHS to take advantage of exemptions to procurement obligations as set out in the European Union Directive 2014/24/EU.”

The Directive provides the ‘codification of the Teckel exemption‘.

The Teckel Exemption has proved important as an exemption from EU competition law when applied to the NHS.

Clause 1 posits that the NHS is a system based on ‘social solidarity’.

Solidarity is another mechanism of providing an exemption from EU competition law. In fact, the lack of solidarity was one of the criticisms of the Health and Social Care Bill made at the time made by ‘Richard Blogger’.

The Poucet and Pistre Case C-159, 160/91 case sheds light not heat on the ‘social solidarity’ exemption of competition law.

A reasonable concern is whether the ‘Clive Efford Bill’ hangs on by its claws to the notion of the NHS being comprised of ‘units of economic activity’  as per s.1 sub (2)(b):

s 1 2 b

But here it is the “Clive Efford Bill” which may be in denial.

Scrutiny in the Committee stage will have to be given as to whether the term here should be “general economic interest” or “general interest”.

The Government’s own guidance on this implementation of EU law is here.

If the direction of travel for all mainstream governments is genuinely to keep the proportion of private provision low, “general interest”, arguably, would be more suitable if the majority of health provision is not intended for profit.

It has been a consistent mantra from the Labour front bench “to put people before profit”, for example.

There are other issues about the significance of the words ‘deliver’ and ‘promote’ in the duty of the Secretary of State for Health.

The view of David Lock QC is here. The view of “The Campaign for the NHS 2015 Reinstatement Bill” is here.

Would a rose by any other name smell as sweet? It is a deeply entrenched position of the legal profession that lawyers look at the substance not the form.

As a statutory aid to the wording of this legislation, there is this paragraph lurking on the internet from David Lock QC from June 2013 which lends support to the notion that it is most useful if the ‘Clive Efford Bill’ is a statutory instrument best read as a whole.

Lock QC June 2013

Assuming that events do not overtake us, in other words we do not get chucked out of Europe imminently or the UK does not get bound in indefinitely over TTIP, we should in theory have some freedom to legislate for what sort of health service we want.

This is provided for in Article 168(7) TFEU.

Bit

It is therefore crucial we draft this legislation correctly.

Taking the position that there must be no criticism of the drafting of the Clive Efford Bill, arguing that it will undermine its implementation at Committee Stage, I think is an unreasonable position to adopt.

Likewise, grandstanding over “who is right” is inappropriate as well. There are possibly as many legal opinions as there are lawyers. We will not know with any certainty unless the Clive Efford Bill, if enacted, is put to the test by the judiciary; and even then, it will not be absolutely certain.

I think the Clive Efford Bill clearly positions itself as exempting itself from the overall gambit of EU competition law.

“It says what it does on the tin”. It is an immediate mechanism, if enacted, for getting rid of the toxic section 75 and baggage. It has been a useful campaigning tool.

But, if there is a Labour government of some sort in May 2015, it is already proposed that there will be regulation of health and care professionals as per the recommendations of the English Law Commission. This should have been in the last Queen’s Speech just gone, but the current Government chose to park this issue. Furthermore, quite drastic changes to the law will still be needed to promote integration of health and care to make whole person care work smoothly and legally. I first wrote about that issue here on this blog in June 2013. Decisions, made on clinical grounds, must be clear of competition obstructions, Enmeshing the NHS with the Enterprise Act over mergers has been a disastrous development in national policy, for example witnessed in the Bournemouth and Poole merger.

So it’s pretty likely that “The Efford Win” is the opening salvo in a war for the soul of the NHS. Time will tell whether UKIP are genuinely against privatisation. I’d bet my life on the fact are far from cuddly socialists. Their policy across a number of areas changes very rapidly, so only time will tell. The more parsimonious explanation is that UKIP are acting completely opportunistically, and wish to win seats off disaffected members across all the mainstream parties. A Labour-UKIP coalition would be very difficult to implement, whatever one thinks of Ed Miliband’s ability to negotiate a bacon butty.

@legalaware

Why are English policy wonks fixated on the dangerous wrong policy of competition for their NHS?



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A series of different amendments are coming from various sources to ask Andy Burnham to scrap the market in the NHS.

And indeed Andy Burnham claims to be well aware of the dangers of the introduction of a sort of-market to the NHS:

Burnham

In recent years, there has been clear unease at policy wonks ‘doing’ the traditional circuits in think tanks, known to feather each other’s nests, with no clinical backgrounds (including no basic qualifications in medicine or nursing), pontificating at others for a cost and price how to run the NHS in England.

Think tanks have been part of the discussion, with blurred lines between marketing and shill and academic research, exasperating the real research community.

The King’s Fund boasts that, “Providing patients with choice about their care has been an explicit goal of the NHS in recent years. Competition is viewed by the government as a way of both providing that choice and giving providers an incentive to improve. The Health and Social Care Act set out Monitor’s role as the sector regulator with a specific role of preventing anti-competitive behaviour in health care.”

Chris Ham, who has previously marvelled voluptuously at the US provider Kaiser Permanente in the British Medical Journal, goes hammer and tong at it on an article on competition here.

The theme or meme comes up as a recurrent bad smell in the impact assessment for the Health and Social Care Bill here, citing in the need to consider equality concerns in competition the reference Gaynor M, Moreno-Serra R, Propper C, (July 2010) Death by Market Power Reform, Competition and Patient Outcomes in the National Health Service. NBER Working Paper No. 16164, July 2010.

The authors of that impact assessment nonetheless reassuringly observe that “Gaynor et al (2010) found competition impacted differently across certain areas with possible negative impacts on transgender and black and minority ethnic (BME) people. However, further evidence implies that these risks, associated with increasing competition, should not be overstated and may not impact upon equality issues.”

Andy Burnham – and Labour – have pledged many times that the repeal of the failed Health and Social Care Act (2012) will be in the first Queen’s Speech of a Labour government.

Policy wonks are human beings, and can fail.

It is well-known that many errors in anesthesiology are human in nature. It’s argued that because equipment failure is an infrequent explanation for mishaps in the hospital, clinicians should be aware of the human factors that can precipitate adverse events.

While there are various types of human errors that can lead to complications, “fixation errors” are relatively common and deserve particular attention. Fixation errors occur when clinicians concentrate exclusively on a single aspect of a case to the detriment of other more important features. This is exactly what has happened with the undue prominence of the benefits of competition in the NHS.

Put simply, without any of the bullshit, competition is simply the crow bar which puts private providers into the NHS.

Milburn and Hewitt have been reading from this narrative from ages, and it threatens to engulf Labour yet again. Burnham is fighting a battle for the soul of the party now, and one can only speculate how successful he will be. He has said on many occasions that collaboration is the key to running the NHS in England, not competition; integration not fragmentation; people before profit.

But if you look beyond the lobbying – you can find the evidence right before your eyes. Jonathon Tomlinson through an excellent blogpost of his refers to a large body of literature from Professor Don Berwick which has been in the literature. This is clearly worth revisiting now.

The New Statesman published last week an article which should make senior healthcare policy wonks in England weep.

Martin Bromiley is neither a doctor, or a health professional of any kind. He is not even a member of the revolving door policy wonks in English healthcare policy. Bromiley is an airline pilot.

“Early on the morning of 29 March 2005, Martin Bromiley kissed his wife goodbye. Along with their two children, Victoria, then six, and Adam, five, he waved as she was wheeled into the operating theatre and she waved back.”

A room full of experts were fixated on intubating her, instead of doing a tracheostomy, which indeed Bromiley indeed asked for. A tracheotomy is  a cut to the throat to allow air in.

What happened next was incredible.

“If the severity of Elaine’s condition in those crucial minutes wasn’t registered by the doctors, it was noticed by others in the room. The nurses saw Elaine’s erratic breathing; the blueness of her face; the swings in her blood pressure; the lowness of her oxygen levels and the convulsions of her body. They later said that they had been surprised when the doctors didn’t attempt to gain access to the trachea, but felt unable to broach the subject. Not directly, anyway: one nurse located a tracheotomy set and presented it to the doctors, who didn’t even acknowledge her. Another nurse phoned the intensive-care unit and told them to prepare a bed immediately. When she informed the doctors of her action they looked at her, she said later, as if she was overreacting.”

This is not the first time that a ‘fixation error’ has had disastrous consequences.

Another example happened on 28 December 1978, the United Airlines Flight 173.

A flight simulator instructor Captain allowed his Douglas DC-8 to run out of fuel while investigating a landing gear problem.

It’s a miracle that only ten people were killed after Flight 173 crashed into an area of woodland in Portland; but the crash needn’t have happened at all.

In a crisis, the brain’s perceptual field narrows and shortens. We become seized by a tremendous compulsion to fix on the problem we think we can solve, and quickly lose awareness of almost everything else. It’s an affliction to which even the most skilled and experienced professionals are prone.

In March 2012, Professor Allyson Pollock wrote an article in the Guardian, stating ‘Bad science should not be used to justify NHS shakeup’.

In this article, Pollock argued that pro-competition arguments from economists Julian Le Grand and Zack Cooper at the London School of Economics had produced an incredibly distorting effect on what was an important discussion and, “[raised] serious questions about the independence and academic rigour of research by academics seeking to reassure government of the benefits of market competition in healthcare.”

Pollock argues that such colleagues had been sufficiently successful for David Cameron to declare “Put simply: competition is one way we can make things work better for patients. This isn’t ideological theory. A study published by the London School of Economics found hospitals in areas with more choice had lower death rates.”

It is reported in one case, the previous chief of NHS England, Sir David Nicholson KCB CBE “said a foundation trust chief executive had been told he could not “buddy” with a nearby trust ? under plans announced last week to help struggling providers ? because “it was anti-competitive”.

He continued: “I’ve been somewhere [where] a trust has used competition law to protect themselves from having to stop doing cancer surgery, even though they don’t meet any of the guidelines [for the service].”

“Trusts have said to me they have organised, they have been through a consultation, they were centralising a particular service and have been stopped by competition law. And I’ve heard a federated group of general practices have been stopped from coming together because of the threat of competition law.”

“All of these [proposed changes] make perfect sense from the point of view of quality for patients, yet that is what has happened.”

Meanwhile, there was more product placement for providers including Kaiser Permanente yesterday by Jeremy Hunt in parliament:

“From next year, CCGs will have the ability to co-commission primary care alongside the secondary and community care they already commission. When combined with the joint commissioning of social care through the better care fund, we will have, for the first time in this country, one local organisation responsible for commissioning nearly all care, following best practice seen in other parts of the world, whether Ribera Salud Grupo in Spain, or Kaiser Permanente and Group Health in the US..”

Everyone appears to be fixated apart from the most junior in the room, or people like me who wouldn’t want to touch these jobs in think tanks with a barge pole.

It is indeed a badge of honour for me that the feeling is likely to be mutual.

Competition does not explain whether a person who has had chest pains due to a clogging heart should have a physical stent to open up the pipes of blood in his heart, or whether he needs tablets he can take. That is down to clinical professional acumen.

Competition with few big providers can lead to massive rip offs in prices, because of the way these markets work (these markets are called ‘oligopolies‘).

And all too easily providers can be in a race to the bottom on quality, cutting costs to maximise profits.

Remember Carol Propper’s research being used to bolster up the failed plank of competition in the Health and Social Care Act impact assessment?

Wow.

Here she is again in the speech by Simon Stevens, the new NHS England chief, being used in a slightly new context for his speech before the NHS Confederation last week: of the “sensible use” of competition in the NHS (somewhat reminiscent of the use of the words “sensible use” in the context of another potentially disastrous area of policy – targets):

“If we want to be evidence-informed in our policy making and commissioning lets pay heed to research from Martin Gaynor, Mauro Laudicella and Carol Propper at Bristol University. They’ve spotted the striking fact that between 1997 and 2006 around half of the acute hospitals in England were involved in a merger. Their peer-reviewed results found little in the way of gains.”

These fixation errors are causing damage to the English NHS.

It’s time some people got out of the cockpit.

 

Care at the crossroads. Burnham has something big, and you may be quite pleased to see him



Social care funding is on its knees.

Andy Burnham MP, Shadow Secretary of State for Health, addressed a sympathetic audience at the #NHSConfed2014 yesterday, talking about unlocking resources for general medicine.

We live in crazy times. Newark saw the christening of the Conservative Party as the protest party you should vote if you wanted to STOP UKIP. But let me take you back to an era when the Labour Party had principles (!)  In August 1945, Aneurin Bevan was made Minster for Health following the 1945 General Election. The National Health Service (NHS) was one of the major achievements of Clement Attlee’s Labour government. By July 1948, Minister for Health, Aneurin Bevan had helped guide the National Health Service Act through Parliament.

A full day has been allocated to the Opposition health on Monday in parliament in part of their discussions on her Majesty’s Gracious Speech. Simon Stevens – NHS England’s new chief – has asked for solutions for well rehearsed issues, and Andy Burnham is clear that this is no time for another apprentice like Jeremy Hunt. Whilst being upbeat about the future of the health and social care system, he wants to move away from a “malnourished system”, with carers employed on zero hours contracts and less than the minimum wage. Indeed, this is a serious issue which has caused me some considerably anxiety too. A “product of [my] time in Government”, clearly this framework has also benefited from a parliamentary term in opposition.

Burnham crucially identifies not an inefficiency in which money is spent (although the ongoing Nicholson savings rumble on). But he does identify an inefficiency in outcomes (such as the near-inevitable fractured neck of the femur in the leg for a seemingly-trivial cost-saving in not purchasing a grab handrail). Labour, inevitably, though has an uphill battle now. The system appears to encourage the medical model of care, according to Burnham, encourages hospitalisation of people, so it is not simply a question of throwing money at the service. People are more than aware that an ‘unsustainable NHS’ is in a nutshell code for a NHS starved of adequate fundings.

Burnham feels that you can’t half-believe in ‘integration’, and is mollified about the consensus about a need for integration across all main political parties.

“I am really worried that the ‘Better Care Fund‘ might give integration a bad name”, comments Burnham.

People who have watching Burnham’s comments will note how Burnham has openly commented how he feels he has been misled by certain think-tanks in the past. A period of opposition has enabled Burnham conversely to obtain a crisis of insight. And yet he talks about his “precious moment” in order “to build a consensus of shared endeavour, which I intend to use to the full and very carefully.” Intriguingly, he does not wish to ‘foist a grand plan’ on voters after the next general election. This is of course is political speak for his ‘shared agenda’, driving a cultural change by stakeholders within the system. This is precisely what Burnham feels he has achieved through the commission on whole person care by Sir John Oldham.

“Not a medical or a treatment model, but a truly preventative service, that can at last aspire to give people a state of physical, mental and social wellbeing.”

Burnham wants to put a stop to the ‘random set of disconnected meetings with individuals within the service.’

An exercise was carried out at the start of the NHS.

This is the famous leaflet.

Pages from the first leaflet introducing NHS to British Public in 1948.

Burnham desires a new leaflet from an incoming Labour government to introduce how social care can become under the umbrella of the National Health Service.

“Going forward, you should expect to receive much more support in your home. The NHS will work to assemble one team to look after you covering all the needs you have. We want to build a personal solution that works for you, for your family, and for your carers, because if we get right at the very outset and the very beginning it’s more likely to work for you and give you what you want, and cost us all much less. We want you to have one point of contact for the co-ordination of your care. We know you are fed up with telling the same story to everyone who comes through the door. It’s frustrating for you, and wasteful for us. To get the care that you’re entitled to, when and where you want it, you will have powerful new rights set out in the NHS Constitution such as the right to a single point of contact for the coordination of all of your care and a personalised care plan that you have signed off. But – and there is a big but – to make of all this happen, you will changes in your local NHS, and, in particular, you will changes in your local hospital. We can do a better job of supporting you where you want to be, we won’t need to carry out as much treatment in hospitals, or have as many hospital beds. It is only by allowing the NHS to make this kind of change to move from hospital to home that we will all secure it for the rest of this century.”

Burnham feels that the NHS must be the ‘preferred provider’ and the DGH should be allowed to reinvent itself - building the notion of one team around the person. I personally have formed the opinion: “close smaller hospitals at haste, and repent at leisure“. Critics of marketisation will inevitably point out the blindingly obvious: that even with a NHS preferred provider, there’s still a market, and nothing short of abolition of the purchaser-provider split will remedy the faultlines. There could be a one person tariff or one person budget for a person for a year. It would give an acute trust a much more stable platform, according to Burnham, in contradistinction to the activity based tariff. This does require some rejigging of how we have the proper financial performance management system in place: there should be a drive, I feel, for rewarding behaviours in the system that promote good health rather than rewarding disproportionately the work necessary to deal with failures of good control, such as dialysis, amputations or laser treatment.

Burnham is clearly inspired by the ‘Future Hospitals’ soundings from the Royal Colleges of Physicians, focused on a new generation of generalist doctors working across boundaries of primary and secondary care:

“Since its inception, the NHS has had to adapt to reconcile the changing needs of patients with advances in medical science. Change and the evolution of services is the backbone of the NHS. Hospitals need to meet the requirements of their local population, while providing specialised services to a much larger geographical catchment area.”

Burnham even talks about possibly reviewing the “independent contractor” status of GPs.

Centralised care is mooted for people in life threatening situations. But Burnham has found that barriers to service reconfiguration exist through the current competition régime and market, with integration encouraging in contrast to collaboration, people before profit, and merge “without the nonsense of competition lawyers looking over their shoulders”. Therefore, Burnham repeats his pledge to remove the Health and Social Care Act (2012), which has driven “fragmentation, complexity and greater cost”. Under this construct, section 75 and its associated Regulations is disabling rather than enabling for health policy. There is clearly much work to be done here to make the legislation fit for purpose, as indeed I have discussed previously. Wider dangers are at play, as Burnham well knows, however. Here he is speaking about his opposition to TTIP (the EU-US Free Trade Treaty) which the BBC News did not seed fit to cover despite their Charter requirements for public broadcasting. And here is George Eaton writing about his opposition to TTIP in the New Statesman.

Burnham is clearly, to me, positioning himself to the left, distancing himself from previous Labour administrations. There are clearly budgets in the system somewhere, and while Burnham talks about unified budgets he does not put the emphasis on personal budgets. There is no doubt to me that personal budgets can never be ‘compulsory’, and each person group (e.g. people living with dementia) presents with unique challenges. It’s clear to me that deep down Andy Burnham is still in principle keen on something like the ‘National Care Service’, in preference to any gimmicks from the Cabinet Office. Burnham in the Q/A session with Anita Anand indeed describes how this had been thrown into the long grass at the time of Labour losing the general election in 2010, but how paying for social care in 2014 is as fundamentally unfair as paying for medicine had been pre-NHS according to Burnham. This would take some time to put in place, such as a mechanism for a mandatory insurance system, and a proper care coordinator infrastructure. And these are not without their own controversies. But, with Miliband playing safe one unintended consequence for neoliberal fanatics has been that it has not been possible to impose a strong neoliberal thrust to whole person care; and whatever Miliband’s personal preferences, the pendulum to me is definitely swinging to the left. Burnham talks specifically about a well planned social care system as part of the NHS.

And so Burnham looks genuinely burnt by previous administrations, and, whilst certain key players will want personal budgets and competition to be playing a greater part in policy, it appears to me that the current mood music is for Labour not appearing to promote privatisation of the NHS in any form.  The ultimate success of the next Labour administration will be determined by the clout of the Chancellor of Exchequer, whoever that is. It could yet be Ed Balls. For matters such as ‘purse strings’ on the social impact value bond or the private finance initiative, Burnham may have to slog out painful issues with Balls in the way that Aneurin Bevan once did with Ernie Bevin in a previous Labour existence. Burnham’s problem is ensuring continuity with the current system where services have been proactively pimped out to the private sector, but ultimately it is the general public who call the shots. Burnham knows he’s onto something big, and, for once, some people may be quite pleased to see him.

 

@legalaware

Review: A film by Peter Bach called “Sell off: the abolition of your NHS”



For health reasons, I don’t drink. After a six week coma due to meningitis at the Royal Free, which left me disabled, I have a massively personal reason why I am grateful to the NHS.

This one event taught me that anything can happen at any time. Last night, I went along to a private viewing of “Sell-off: The abolition of your NHS” at the BAFTA in Piccadilly. Not having drunk for alcohol for seven years, I don’t feel any particular urge to drink. In fact, I quite liked the atmosphere of their bar in the complete absence of alcohol. I quite like diet Coke.

Peter Bach Film

The bar made me think of New York in fact in a brief period of escapism from a wet and miserable evening in March in Central London.

Bafta Bob 4

While I was sat thinking about how unusual it was for me to go to bars these days, I heard a voice I recognised. Then I suddenly twigged who it was – Tamasin Cave, Director of Spinwatch, was talking with someone about the “Lobbying Tour”. I said as politely as I could to her that the YouTube video of her tour is very famous.

“Famous for a certain group of people perhaps!”, she replied.

Peter Bach’s film, which is currently in an uncut stage, is exquisitely done. It covers all the points you’d expect in a documentary about a piece of legislation which was railroaded in without meaningful discussion. The frames of those people interviewed flow nicely, and the resulting narrative is coherent. I know this particular narrative extremely well, but there were some points for seasoned viewers like me too.

The views on the NHS captured in Bach’s film impressively don’t sound like one spiteful rant, though, which is the really clever aspect of the film.  The film is possibly best described as a clear fly-on-the-wall documentary where patients and doctors clearly feel utterly disenfranchised from the NHS. This is of course in total contrast to the humanistic foundations of the NHS in the 1940s.

Peter Bach, the filmmaker, talks about how he went to a basement in Earls Court, to say how “he was bombarded by a litany of complaints” from a group of people concerned about the running of the NHS. Whilst Max Keiser argues in his interview with Peter Bach ‘you can’t put a price tag on the NHS’ (see below), you unfortunately can put a price tag on the costs to make this film. If you’d like to support this very important initiative of public interest, please go to this ‘StartJoin’ website for crowdfunding.

If the film set out to achieve a fascinating overview of the issues engulfing the NHS, it certainly did that. The concern, of course, is that this film ends up ‘preaching to the converted’, and it contains still a mystery why the mainstream media seem reluctant to discuss the running of the NHS. Supporters of NHS privatisation have argued that it doesn’t matter who runs the NHS as long as it’s run well and free at the point of use. Supporters of the NHS privatisation therefore tend to argue that the public do not want to have this debate. Conversely, people who support a NHS which is state-run obviously argue, instead, that this debate does matter; and the film indeed posits very good clear arguments why the market does not work in the NHS. The film clearly states that competition doesn’t work effectively for the NHS; measuring all the activity in the NHS itself wastes resources (going up from about 2% of the budget to 30%). The youthful and inspiring Dr Clive Peedell was spitting bullets at the encroachment of the market – and of course is right.

The film flows effortlessly, for example, from an excellent description bogus nature of running the finances of a hospital, compared to a household budget, by Dr Bob Gill to a mention of indexation in the private finance initiative (PFI) by Prof Allyson Pollock. Pollock is clearly somebody who should have been listened to much earlier. At least Pollock is completely vindicated. Whilst politicians of all shades have argued the beneficial effects of PFI, the concerns are brilliantly enuniciated by Pollock. An on-running theme of this film evidently is that it’s not the case that this is a fait accompli of the corporatisation of the NHS, though time is running out now. Something can be done about PFI contracts (and may require attention due to the repercussions of PFI on freedom of information requests concerning safe staffing). It might be late in the day, but it wouldn’t be too late for a candid repentance. Likewise, the public lawyer states correctly the Health and Social Care Act (2012), which led to the £2.4 million ‘reforms’, can be repealed. And it would take one Bill to restore of the duty of the Secretary of State for Health in running the NHS.

Both Dr Jacky Davis and Dr Louise Irvine speak brilliantly in the film on the issues of the ‘democratic deficit’. Given that the mainstream media have continued to ignore the changes in the NHS traditionally, their opinions are clearly a polite (not desperate) plea for members of the general public to become involved. Meanwhile, in the film itself, Dr Lucy Reynolds, who clearly has many interesting insights about cross-jurisdictional aspects of healthcare systems, describes how she left a U.K. where the N.H.S. was respected to one where the N.H.S. was pilloried on a daily basis. I also had a nice chance to chat with Dr Davis and Dr Irvine before the film, and with Dr Jonathon Tomlinson afterwards.

As I left the theatre and the BAFTA building, I caught sight of Lord Owen. On seeing Owen, I was reminded of an interview by the late Tony Benn. Benn’s remarks about how the SDP had been partly launched as a reaction to the inadequacy of Labour still irritate some. In that particular interview these remarks preceded a diatribe also by Benn about how it wasn’t the Left’s fault that Labour had been unelectable. Bach’s film brilliantly doesn’t shovel the blame at the doorstep of any one political party, though clearly no Government (especially this one) comes out of it particularly well.

Many seasoned commentators have learnt that there is a consistent pattern of unsafe practice, where people have not been empowered to speak out safely. I am very glad that Bach’s film approached this intelligently, in a constructive and altogether non-vindictive manner. Peter Brambleby talks with much dignity about how his concerns well known elsewhere fell on deaf ears. Dr Kim Holt also talks about the well known phenomenon of how whistleblowers are first ostracised before being silenced and finally excluded.

The argument that Foundation Trusts, such as Mid Staffs, allegedly made staff cuts endangering patient safety in the rush to meet financial targets to gain Foundation Trust status is elegantly made. Meanwhile, the 6Cs, and indeed lack of minimum staffing, many believe, do not protect against the basic threat of unsafe staffing on the delivery of NHS care.

In a weird way, the film is as iconic as the best of them such as “Breakfast at Tiffany’s”, despite being in a completely different genre. I think it’s inevitable that this film will connect with people in a way which reflects the subject-matter being more significant than the usual party-politics. If the problem was explaining the complex narrative of the failures of NHS policy in a succinct, understandable manner, Bach has just achieved a First with Distinction. It’s a remarkable piece of work, which, whether you are particularly interested in the NHS or not, deserves to be widely seen; and indeed deserves the highest official praise.

 

Should dementia charities trademark their campaign logos?



The idea of all charities being fluffy and nice is long gone.

One or two have eyewatering incomes which stick in your throat somewhat. They are fully corporate in behaviour, and have access to the same tools used by other corporates (including corporate lawyers).

On the other hand, some dementia activists have ploughed on regardless.

Norman McNamara posted in his Facebook group for people interested in dementia today news of a communication which he’d received.

This was from Jeremy Hughes, CEO of the Alzheimer’s Society, about how the Torbay Ostrich could be shown side-by-side with the Alzheimer’s Society “Forget-me-not” symbol.

In it together?

To make up for this potentially irritating situation, however, Norman has massive goodwill from persons with dementia and their friends.

The idea of dementia communities is not new.

The Torbay Dementia Action Alliance ‘Purple Angel’ is below:

Purple Angel

 

Clearly the “Purple Angel” looks nothing like the “Forget me not” visually.

And adding to the confusion is the issue that the ‘forget-me-not’ is apparently the emblem of members of the Freemasons community, so that they can recognise each other.

See for example this recent e-Bay item.

Masonic

All of this is incredibly important legally, when you analyse how the law works for infringement of a trademark works under the Trade Marks Act (1994). The relevant clauses are s.10(2)(a) and s.10(2)(b).

The concept of friendship in dementia can be deciphered from a number of different sources in fact.

For example, the concept is a natural extension of the “connected communities” idea of the RSA. This is a programme that explores ‘social network’ approaches to social and economic challenges and opportunities.

They concentrate on understanding and mobilising ‘real world’ face to face networks of support and exchange between citizens, small informal groups, public sector and third sector agencies, and private sector businesses.

Supportive communities are well known in Japan.  For example, Fureai kippu (in Japanese ?????? :Caring Relationship Tickets) is a Japanese currency created in 1995 by the Sawayaka Welfare Foundation so that people could earn credits helping seniors in their  community.

The basic unit of account is an hour of service to an elderly person. Sometimes seniors help each other and earn the credits, other times family members in other communities earn credits and transfer them to their parents who live elsewhere.

In Japan, there’s a strong ethos of befriending, and English policy has emulated that. Imitation is the best form of flattery, but not when it comes to intellectual property law.

There’s also WHO.  The WHO Global Network of Age-friendly Cities and Communities was established to foster the exchange of experience and mutual learning between cities and communities worldwide.

Any city or community that is committed to creating inclusive and accessible urban environments to benefit their ageing populations is welcome to join.

The Joseph Rowntreee Foundation initiative “York Dementia Without Walls” project looked into what’s needed to make York a good place to live for people with dementia and their carers.

They found that dementia-friendly communities can better support people in the early stages of their illness, maintaining confidence and boosting their ability to manage everyday life.

As part of this project, the team also worked with groups of people with dementia to create a dementia-friendly summary of the research.

Thus it can be easily argued that the concept of dementia friendship is generic.

This applies not only to words that begin life as generic terms, but also to words that begin life as brand names but are appropriated by consumers as another word for the types of goods/services they were coined to brand.

This is what happened to the terms “escalator,” “cellophane,” and “aspirin,” which were originally created to serve as marks, but which became so widely used to refer simply to that type of good (any elevated moving stairway, any plastic wrap, any acetylsalicylic acid painkiller) that they lost their ability to brand.

But here, the concept of dementia friendship is already widespread in global policy.

The Alzheimer’s Society have protected their visual mark for “Dementia Friends” on the trademark register for the IPO, as trademark UK00002640312. It is protected under various categories. This is across various classes.

A trademark in English law was traditionally used as a “badge of origin”: a mark or sign that would tell purchasers exactly who had made the particular product they were about to buy.

Today, the largest companies in the world value the goodwill that’s embodied in their names in the hundreds of millions of pounds.

Trademarks distinguish the goods or services of one trader from those provided by its competitors: e.g. a smartphone from Samsung compared to a similar one from Apple.

The overzealous use of registering trademarks is demonstrated well in the recent furore over the word ‘candy’ Gamemakers have mounted a protest against King.com after it trademarked the word “candy”.

The company trademarked the word in Europe in a bid to protect its best-selling Candy Crush Saga game. The Candy Jam webpage said the protest was in response to King.com’s action to defend its trademark.

The Candy Jam page accused King.com of being a “bully” and said the issue had now become one of “freedom and creativity”.

Here, trademarking logos for campaigns is wandering into dangerous territory, when most dementia campaigners wish to promote the concept of friendly communities. However, it is reasonable that any society should wish to act against a competitor producing confusing very similar merchandise.

Nonetheless, at an extreme, protecting the trademark, in this case represented by a commercial and corporate firm known to have a penchant for competition law in contemporary NHS legislation by the current Coalition, might be seen as a tad corporate and bullish.

Here there is an intriguing possibility of a “Goliath” medical charity exerting its right one day to take a “David” medical charity to court over an innocuous mix-up where a smaller charity, without good legal resources, setting up its own dementia friends scheme with a confusingly similar logo.

Whilst a trademark protects innovation in English law like other jurisdictions, it is also a monopolistic right which exerts an anti-competitive effect.

This is actually a formidable legal policy issue, known to Barack Obama and Abraham Lincoln.

If it shows ‘mission creep’ in the form of large charities ‘competing’ in the third sector with the help of the commercial law, that’s arguably a problem.

In theory, the Freemasons could wish to argue in court that their motif, being more longstanding, is being infringed by the Alzheimer’s Society symbol.

I am not aware that the Freemasons hold a registered trademark for the “forget-me-not” symbol. If they don’t, they are open to take a claim in the common law of tort of passing off.

However, this motif also exists on the Trade Marks Register (and several similar others.)

And as it is a prior motif by Landsforeningen LEV, it would be up to Landsforeningen to argue it was sufficiently similar. They would have the right to raise an objection as the Alzheimer’s Society registered their ‘dementia friends’ trademark after their ‘forget-me-not’ symbol.

The Alzheimer’s Society would only have to argue that theirs is sufficiently different because of the words “Dementia Friends”, it’s for a different sector entirely, and in a different colour. And they could easily produce survey data to demonstrate there had been no confusion, one speculates.

But the colour combo is unfortunate!

LEV

But you see what I mean?

It gets unnecessarily corporate, complicated and potentially costly to go down this route.

At worst, this registration of a trademark sends a powerful message to any other smaller dementia charities wishing to promote the concept of friends, in a move not dissimilar to pre-emptive “cybersquatting” for a domain name.

A danger here comes down to what you mean by ‘badge of orgin’.

People may think that the Alzheimer’s Society is the sole origin of the idea of friends in dementia, where as I’ve described it comes from a number of sources which have acted rather in parallel, or in a collaborative manner.

On the other hand, it is perfectly reasonable for the Alzheimer’s Society to wish to protect strongly their emblem, in case a competitor tries to copy it in such a way a member of the public might get confused with that precise initiative in which the Alzheimer’s Society have presumably invested quite a lot of time, money and effort.

But we are perhaps taking a leaf now out of the US “competition” book, which caused the market in the NHS in England to be turbo-boosted through the ill-fated “section 75″ and associated Regulations.

In the U.S. non-profit sector, there has been a growing problem with the phenomenon of ‘brandjacking’.

A guest blogpost here describes how the Christmas SPIRIT Foundation accidentally discovered an industry competitor “had created a copycat ripoff of our TweetUp4Troops effort to generate support for the Foundation’s Trees for Troops program”.

Indeed, in the article, the author describes:

“To engage more consumers in the program and to generate financial support for Trees for Troops, the Foundation created and organized TweetUp4Troops events to be held during Veterans Day Week (Nov 7-14). As part of the campaign, the Foundation created a TweetUp4Troops group site, web site and Twitter handle.”

Charities are able  to register a trademark, particularly if they have the funds,a visually attractive emblem such that any infringer can take be taken to court, for an injunction or damages (for example).

But is this actually how we want charities to operate, the income source of which includes people who have given up money to further a cause very personal to them?

It is sad that certain charities are tending to work in increasingly corporate ways, with a good understanding of the application of the commercial and corporate law, to secure competitive advantage in an intensely difficult market.

The Alzheimer’s Society clearly has a head start in marketing their ‘Dementia Friends’ initiative, through their badges which can be worn by MPs in parliament.

It also has a very powerful strategic partnership with the Department of Health in promoting the Prime Minister’s Dementia Challenge.

While there is clearly a need for the Alzheimer’s Society to protect their brand in ‘Dementia Friends’, there is a difficult balance to be enforced to make sure that this does not impede smaller entrants to the market of fundraising.

This is especially critical given how difficult is has been for smaller charities and community interest groups involved in dementia to keep going, despite of or because of the Prime Minister’s Challenge.

[Many thanks to C.R. for a discussion of the meanings of an emblem discussed in this blogpost.]

Will the catalysmic implosion of the market ideology now move onto the NHS?



This week, David Cameron MP mocked Ed Miliband MP for sounding like a person who’d rung up a radio show whingeing.

Cameron replied, “And your problem is caller?”

The problem is a complete collapse of ideological position which has lasted decades.

Ed Miliband keeps up the moment today with the market failure of the energy oligopoly (see article by Patrick Wintour in the Guardian.)

It is argued that one of the precursors of Thatcherism was a revival of interest in Britain and worldwide in the work of the Austrian economist and political philosopher, Friedrich Hayek, who won the Nobel Prize for economics in 1974.

Alongside Milton Friedman, who won his Nobel Prize in 1976, Hayek lent great prestige to the cause of economic liberalism, helping to create the sense of a rightward shift in the intellectual climate, complementing the approach of Ronald Reagan across the pond.

These principles of dogma have seen successive Conservative and Labour governments reaching for the drug of privatisation and outsourcing.

But these drugs are not only failing to work. They are having devestating side effects which are killing the patient.

The markets have been outed for being far from liberalising. They create inequality. It is alleged that the austerity-based policies have led to a marked decline in mental health and rates of suicide even.

But it’s not the shocking Gas bill which has delivered the knock-out blow for the Conservatives’ religion.

“Here is the reality. This is not a minor policy adjustment—it is an intellectual collapse of the Government’s position.”

This was Ed Miliband’s verdict in Wednesday’s Prime Minister’s Questions.

Only a day previously, BBC Radio 4’s had played a voxpop of various members of the public speaking about ‘payday loans’ as a prelude to interviewing George Osborne MP.

“I don’t accept it’s a departure from any philosophy. The philosophy is we want markets to for people. People who believe in the markets like myself want the market regulated. The next logical step is to cap the cost of credit. It’s working in other countries. In fixing the banks, we need to fix all parts of the banks and the banking system. It helps all hard-working people.”

During the time of the previous Labour government, the King’s Fund was head-over-heels promoting competition.

It was known that, by shoehorning competition as a policy, private providers would make a killing.

All you had to do was to bring in a £3bn ‘top down reorganisation’, a 500 page Act of parliament containing no clause on patient safety apart from the abolition of the National Patient Safety Agency, and beef up a new consumer regulator (“Monitor”).

But meanwhile back to payday lending, an evidenced case of market failure.

“We’ve always believed in properly regulated free markets, where there’s competition, but where the market is properly regulated. That’s why we created a new consumer regulator.”

Far from being a loveable buffoon Boris Johnson, Johnson has revealed himself to be the toxic political mess he is.

Suzanne Moore, at the risk of being hyperbolic, called out Johnson as ‘sinister’.

Johnson had launched this week a bold bid to claim the mantle of Margaret Thatcher by declaring that inequality is essential to fostering “the spirit of envy” and hailed greed as a “valuable spur to economic activity”.

In an attempt to shore up his support on the Tory right, as he positions himself as the natural successor to David Cameron, the London mayor called for the “Gordon Gekkos of London” to display their greed to promote economic growth.

He qualified his unabashed admiration for the “hedge fund kings” by saying they should do more to help poorer people who have suffered a real fall in income in recent years.

And what’s wrong with greed being good if this improves patient care in the NHS?

The issue always remains ‘zero sum gain’. It’s a problem as it diverts tax-funded resources directly in the coffers of the private sector.

Arguably, it’s not just the failure of the market which is the problem, but ‘the undeserving rich’ who have never ‘seen it so good’ since Tony Blair’s New Labour period of government.

In August 2009, the then leader of the Opposition and Conservative leader, David Cameron, MP defended a shadow health minister for advising a firm which offers customers an alternative to NHS doctors.

Lord McColl was on the advisory board of Endeavour Health, which promised a quick and convenient access to a network of “top” private GPs.

It was claimed then that Endeavour Health is a company set up by two hedge fund advisers which purported to be Britain’s first comprehensive private GP network.

In a video yet to be deleted off You Tube, David Cameron argued that there was nothing ‘improper’.

This was interpreted at the time that the Conservatives “favoured private alternatives”.

Nonetheless, David Cameron claimed that the Conservatives was ‘totally dedicated to the NHS’, but he wished ‘to expand the NHS so that people don’t have to use the private sector’.

What actually happened was the Health and Social Care Act (2012).

In July 2013 in the British Medical Journal, it was reported that the private sector is in line to secure hundreds of millions in NHS funding from services placed out to the open market under the UK government’s latest competition regulations, a study has shown.

Research by the pressure group the NHS Support Federation found that contracts for around 100 NHS clinical services totalling almost £1.5bn (€1.7bn; $2.2bn) have been advertised since 1 April 2013, with commercial companies winning the lion’s share of those awarded to date.

Data from official tenders websites showed that only two of 16 contracts awarded since the government’s section 75 regulations of the Health and Social Care Act came into force have gone to NHS providers, with the remaining 14 going to the private sector.

A few days ago, it was reported tonight that David Cameron is intending to ban branded cigarette cartons, having originally decided last July not to proceed with the plans.

In the summer the Government said it was waiting to see how plain packaging worked in Australia, which introduced the measures a year ago, before making any changes. It has since maintained it is monitoring the situation.

That is the spin. Behind the scenes, it is well known that tobacco corporates have throttled public health policy.

In the third volume of Law, Legislation and Liberty, Hayek argued that there are not two but three kinds of human values: those that are “genetically ordered and therefore innate”; those that are “products of rational thought”; and values that had triumphed in the course of cultural evolution by demonstrating their suitability to the successful organization of social life.

Hayek believed that these values were a cultural inheritance, survivors of a competitive struggle, and essential conditions for the successful evolution of our society.

David Cameron is indeed right to be worried.

There has been a collapse of the ideological position that he and his predecessors, Margaret Thatcher and Tony Blair, stood for.

This is in relation to the markets.

This fundamentally changes the terms of reference for a market-based NHS.

Contagion is likely politically.

If payday lending or the energy markets are anything to go by, there could be trouble ahead.

So what’s the issue? The caller’s problem is that “the markets don’t work”, “they only make you feel worse again”.

And now the caller’s finally worried about the NHS.

 

 

My blog on dementia is here: http://livingwelldementia.org

"Co-epetition" – how collaborative competition might ultimately benefit the patient



Diogenes

The debate about competition is polar. Either you’re a believer or not.

Yet competition can co-exist with collaboration. Also, in theory, integration or bundling could even be seen as ‘anti-competitive behaviour’.

A trick will be ultimately to find a way in which integration of services cannot offend competition law. As an useful starting point, Curry and Ham (2010) suggest that there are three levels of integration, the top of which is a “a macro-level or systems-level integration”, in which a single organisation or network takes full clinical and fiscal responsibility for the spectrum of health services for a defined population, Underneath is a “meso-level integration of services” for patients with particular conditions, which encompasses a continuum of care for a subset of patients with those conditions.

Ultimately, clinical commissioning groups, whatever expertise they precisely consist of, will need to source services which promote highest quality and best choice for its patients. And yet the law has to reconcile one of its fundamental rules (that everyone is innocent unless otherwise proven guilty), and the law should not penalise people wishing to work together if it is for the benefit of the patient. One is reminded of Diogenes of Sinope (412-323 B.C.) who was seen roaming about Athens with a lantern in broad daylight and looking for an honest man but never finding one.

“Co-epetition” can mean a ‘joint dominance’ of suppliers of health services, provided their activity does not abuse that dominance or distort the market. There are good reasons in business management why certain parties might choose to coordinate their commercial conduct to benefit patients, such as in bundling. Despite certain conflicting interests, they also share strong common values and are exposed to common risks. Such synergies in competences is well known to be essential for building cohesive organisational entities, and in forcing strategic alliances even if there is formal relationship at all.

Unfortunately, joint or collective dominance has been traditionally treated by the Competition Authorities as equivalent to oligopolistic dominance. The concept of joint dominance has been developed under both Article 102 of the Treaty on the functioning of EU.  There is some consensus among National Health Service (NHS) researchers, managers and clinical leaders that increased integration within the health system will enable the NHS to respond better to the growing burden of chronic illnesses. In “real markets”, the prohibition laid down in Article 102 TFEU has been justified by the consideration that harm should not be caused to the consumer, either directly or indirectly by undermining the effective competition.  However, healthcare is not a “real market”. Unlike the other concepts, co-opetition (blend of cooperation and competition) focuses on both cooperation and competition at the same time.

Basic principles of co-opetitive structures have been described in game theory, a scientific field that received more attention with the book “Theory of Games and Economic Behavior” in 1944 and the works of John Forbes Nash on non-cooperative games. It is also applied in the fields of political science and economics and even universally [works of V. Frank Asaro, J.D.: Universal Co-opetition, 2011, and The Tortoise Shell Code, novel, 2012]. Although several people have been credited with inventing the term co-opetition, including Sam Albert, Microsoft’s John Lauer, and Ray Noorda, Novell’s founder, its principles and practices were fully articulated originally in the 1996 book, “Co-opetition”, by Harvard and Yale business professors, Adam M. Brandenburger and Barry J. Nalebuff.

One sincerely hopes that NHS management will be able to cope with the pace of this debate too. Competitors with such management ability will likely forge a co-opetitive relationship. When two companies compete fiercely in a market, they likely perceive each other as an enemy to defeat, and have less willingness to collaborate, even if they have complementary skills and resources. One day, the best minds in the world will probably ‘have a go’ at producing a coherent construct of this for the NHS quasimarket.

“Co-epetition” provides, furthermore, a mechanism for English health policy to revisit yet again the notion of “public private partnerships” which first probably became really sexy about a decad ago at the heart of the government’s attempts “to revive Britain’s public services”. A decade later, Cameron is still lingering with this particular revival. The problem with how this is sold is that many have rightly rubbished the idea that the private sector is necessarily more “efficient”, an ab initio basic assumption, The private sector, both accidentally and sometimes quite deliberately, introduces needless reduplication and waste, evidenced by the cost of wastage in the US health market. However, the “dream” is that, in trying to bring the public and private sector together, the government hopes that the management skills and financial acumen of the business community will create better value for money for taxpayers.

Globally, diabetes is the second biggest therapeutic “market segment”, behind oncology, in terms of revenues generated. IMS Institute of Healthcare Informatics forecasts that the global diabetic segment will grow to $48-53 billion by 2016. In India, it is already the fastest growing segment. Diabetes medicines currently fall into two broad categories — tablets and injectable insulin. While domestic players are market leaders in the conventional oral drugs segment (market share of 80 per cent), multinational corporations (17 percent) are fast catching up with patent-protected new generation oral drugs. The anti-diabetes market has been consistently growing well above the pharmaceutical market for the past few years. It is possible to see the future in this crowded market in a coupled business strategy that involves in-licensing one or more compounds (new products from multi-national corporations), while continuing with time tested, less expensive (own) products for the mass market.

If the NHS should wish work together with private providers in provision of integrated bundles of healthcare, and the feeling is mutual in a way which clearly promotes patient choice, assuming that all parties see a rôle for the private sector in the NHS, the legislative framework should be re-engineered immediately to reflect that. This should a pivotal task for Monitor to turn its attention to.

Whatever the precise approach taken to “co-epetition”, the current legislative guidance will need to much better defined to ensure that any form of integration does not offend the anti-competitive environment.

 

The author is extremely grateful for the rich conversations he has had with Dr Na’eem Ahmed who is the first person to the author’s knowledge to acknowledge the potential value of this mode of provider dynamics for the NHS.

 

Many posts like this have originally appeared on the blog of the ‘Socialist Health Association’. For a biography of the author (Shibley), please go here.

Shibley’s CV is here.

It's all too easy to dismiss Miliband's attack on energy prices. It fundamentally blasts Thatcherism.



 

Virtually all attacks on Ed Miliband regarding energy prices begin with the statement ‘Ed Miliband is right but…” That the Conservatives might be wrong on their basic economics is politically very worrying. And yet Ed Miliband has not sought to frame the article like a convoluted Oxbridge economics tutorial. Long gone are the days of Gordon Brown using logical inferences to explain why financial recapitalisation was needed to avert an even bigger global financial crisis. Nobody seemed to care. What did George Osborne wish to do exactly about Northern Rock. He didn’t say, and it didn’t seem to matter. Labour, the allegation, spent too much, and yet staggeringly George Osborne wanted to spend as much more. When asked to identify what it was about Labour’s economic policy which was so fundamentally awry, Tory voters invariably are able to articulate the answer. When further pressed on how the Conservative Party opposed this fundamentally awry policy, there’s a clear blank.

Ed Miliband and his team can explain how the market has failed, perhaps going into minutiae about how competitors end up colluding, except nobody can prove this. They therefore rig the prices, it is alleged, so that they can return massive shareholder profit, while the prices endlessly go up. The Tories will counter this with the usual reply that the profits are not that bad, and it was Miliband’s fault for introducing his ‘green taxes’. Anyone who knows their economics at basic undergraduate level will know the problem with this. It’s all to do with the definition of ‘sustainability’. Sustainability does not simply mean ‘maintained’, although you’d be forgiven for thinking so, on the basis of the mouths of PPE graduates from Oxford. It’s all about how a company can function across a time span of very many years, acting responsibly in the context of its environment.

It’s instead been framed as ‘the cost of living crisis’. The problem with the national deficit, while a useful tool in giving people something to blame Labour for supposedly, is that when somebody goes out shopping in a local supermarket he does not tend to think of the national deficit. Likewise, much as I disagree with the ‘Tony Blair Dictum’ that ‘it doesn’t matter who provides your NHS services so long as they are free at the point of need’, voters will tend not to care about NHS privatisation unless they have a true ideological objection to it. NHS privatisation as such makes little impact on the ‘cost of living’.

Energy prices are an altogether different bag. It is perhaps arguable that the State should not interfere in private markets, but surely this acts both ways? Should the banking industry, and more specifically bankers, be ‘grateful’ that they received a £860 billion bailout from the State as a massive State benefit to keep their industry alive? Or did they not want this money at all? Even you brush aside the need of the State to interfere legitimately with prices, it is commonplace for the State through the law to interfere with unlawful activities to do with competition. The prices are the end-product of an economic process of faulty competition, poorly regulated.

And there’s the rub. Ed Miliband’s ‘attack on energy prices’ is not just a policy. It is actually a political philosophy. It is more tangible than responsible capitalism or predistribution, although one may argue that it bridges both. The attack on energy prices, on behalf of the consumer whether hard-working or not, is indeed a political philosophy. Margaret Thatcher may have gone to bed with a copy of ‘The Road to Serfdom’ by FA Hayek under her pillow, and all credit to her for fundamentally believing, most sincerely, that the markets could be ‘liberalising’. With this attack on energy prices, Miliband effectively in one foul swoop demolishes the argument that markets are liberalising. In Thatcherite Britain, consumers are suffocated by the business plans of big business. Miliband’s discourse is not a full frontal attack on any business; it specifically targets abusive behaviour of corporates. And the energy prices are symbolic of much of what has proven to be faulty many times before. Andrew Rawnsley concluded his article at the weekend, advancing the theme that the current Conservative-led government is a bad tribute band to Thatcherism, by saying simply that we know what happens next. It’s not just gas; it’s everything which has been privatised, including water, telecoms, and so it goes on. Authors in the right-wing broadsheets can go on until the cows come home evangelising how privatisation is a ‘popular’ concept, but the criticism of the abuse of privatisation is far more popular.

And Ed Miliband doesn’t want to issue ‘more of the same’ as before. John Rentoul is so exasperated he is now left to write articles on how being called ‘Blairite’ is not actually a term of abuse. But these are yesterday’s battles. The battle over energy prices is a massive explosion in the world that the market knows best. Its shock waves are to be felt in how Labour conducts itself in other policy domains, putting people primacy ahead of shareholder primacy. And there’s a plenty of evidence that this is the Most Corporatist Government yet – ranging from the reaction to Leveson to how to allow ‘market entry’ in the newly privatised NHS. The public were never offered an antidote to the Thatcherite poison from Tony Blair, and, even after 13 years of Blair and Brown, many Labour members had been left mystified as to what happens next.

The beginning of that answer definitely seems to be end of Thatcherism. The answer seems to involve a new post-Thatcherite ‘settlement’ about politics, society and economics. Whilst distinctly populist in feel, it fundamentally blasts Thatcherism to the core, and is highly deceptive. Whilst easily dismissed, it intellectually is a lethal weapon.

It's all too easy to dismiss Miliband's attack on energy prices. It fundamentally blasts Thatcherism.



 

Virtually all attacks on Ed Miliband regarding energy prices begin with the statement ‘Ed Miliband is right but…” That the Conservatives might be wrong on their basic economics is politically very worrying. And yet Ed Miliband has not sought to frame the article like a convoluted Oxbridge economics tutorial. Long gone are the days of Gordon Brown using logical inferences to explain why financial recapitalisation was needed to avert an even bigger global financial crisis. Nobody seemed to care. What did George Osborne wish to do exactly about Northern Rock. He didn’t say, and it didn’t seem to matter. Labour, the allegation, spent too much, and yet staggeringly George Osborne wanted to spend as much more. When asked to identify what it was about Labour’s economic policy which was so fundamentally awry, Tory voters invariably are able to articulate the answer. When further pressed on how the Conservative Party opposed this fundamentally awry policy, there’s a clear blank.

Ed Miliband and his team can explain how the market has failed, perhaps going into minutiae about how competitors end up colluding, except nobody can prove this. They therefore rig the prices, it is alleged, so that they can return massive shareholder profit, while the prices endlessly go up. The Tories will counter this with the usual reply that the profits are not that bad, and it was Miliband’s fault for introducing his ‘green taxes’. Anyone who knows their economics at basic undergraduate level will know the problem with this. It’s all to do with the definition of ‘sustainability’. Sustainability does not simply mean ‘maintained’, although you’d be forgiven for thinking so, on the basis of the mouths of PPE graduates from Oxford. It’s all about how a company can function across a time span of very many years, acting responsibly in the context of its environment.

It’s instead been framed as ‘the cost of living crisis’. The problem with the national deficit, while a useful tool in giving people something to blame Labour for supposedly, is that when somebody goes out shopping in a local supermarket he does not tend to think of the national deficit. Likewise, much as I disagree with the ‘Tony Blair Dictum’ that ‘it doesn’t matter who provides your NHS services so long as they are free at the point of need’, voters will tend not to care about NHS privatisation unless they have a true ideological objection to it. NHS privatisation as such makes little impact on the ‘cost of living’.

Energy prices are an altogether different bag. It is perhaps arguable that the State should not interfere in private markets, but surely this acts both ways? Should the banking industry, and more specifically bankers, be ‘grateful’ that they received a £860 billion bailout from the State as a massive State benefit to keep their industry alive? Or did they not want this money at all? Even you brush aside the need of the State to interfere legitimately with prices, it is commonplace for the State through the law to interfere with unlawful activities to do with competition. The prices are the end-product of an economic process of faulty competition, poorly regulated.

And there’s the rub. Ed Miliband’s ‘attack on energy prices’ is not just a policy. It is actually a political philosophy. It is more tangible than responsible capitalism or predistribution, although one may argue that it bridges both. The attack on energy prices, on behalf of the consumer whether hard-working or not, is indeed a political philosophy. Margaret Thatcher may have gone to bed with a copy of ‘The Road to Serfdom’ by FA Hayek under her pillow, and all credit to her for fundamentally believing, most sincerely, that the markets could be ‘liberalising’. With this attack on energy prices, Miliband effectively in one foul swoop demolishes the argument that markets are liberalising. In Thatcherite Britain, consumers are suffocated by the business plans of big business. Miliband’s discourse is not a full frontal attack on any business; it specifically targets abusive behaviour of corporates. And the energy prices are symbolic of much of what has proven to be faulty many times before. Andrew Rawnsley concluded his article at the weekend, advancing the theme that the current Conservative-led government is a bad tribute band to Thatcherism, by saying simply that we know what happens next. It’s not just gas; it’s everything which has been privatised, including water, telecoms, and so it goes on. Authors in the right-wing broadsheets can go on until the cows come home evangelising how privatisation is a ‘popular’ concept, but the criticism of the abuse of privatisation is far more popular.

And Ed Miliband doesn’t want to issue ‘more of the same’ as before. John Rentoul is so exasperated he is now left to write articles on how being called ‘Blairite’ is not actually a term of abuse. But these are yesterday’s battles. The battle over energy prices is a massive explosion in the world that the market knows best. Its shock waves are to be felt in how Labour conducts itself in other policy domains, putting people primacy ahead of shareholder primacy. And there’s a plenty of evidence that this is the Most Corporatist Government yet – ranging from the reaction to Leveson to how to allow ‘market entry’ in the newly privatised NHS. The public were never offered an antidote to the Thatcherite poison from Tony Blair, and, even after 13 years of Blair and Brown, many Labour members had been left mystified as to what happens next.

The beginning of that answer definitely seems to be end of Thatcherism. The answer seems to involve a new post-Thatcherite ‘settlement’ about politics, society and economics. Whilst distinctly populist in feel, it fundamentally blasts Thatcherism to the core, and is highly deceptive. Whilst easily dismissed, it intellectually is a lethal weapon.

 

CV here

Like a faulty house of cards, the competition rationale for the Health and Social Care has fallen apart



 A house of cards

 In the beginning….

In the beginning, there was garbage and rhetoric. It sounded nice, but it was intellectually devoid of quality, there was not much competition for ideas even though this WAS bad, and so there was not much choice.

Julian LeGrand back in 2003 talks of the “competition juggernaut”:

Labour has made many mistakes, usually and unsurprisingly given its roots in socialism and central planning, in the direction of too heavy-handed central control. The public service juggernauts are now on a different course, with decentralisation, competition and choice as part of their route maps – and with plenty of resources as fuel. If they fail to arrive at their destination, if our expectations are dashed, there will be real questions over the future of each area of public services: how long can it remain public; how long can it remain a service?

Juggernaut

Competition fever‘ should have never have got off the ground. The University of York, Economics of Social Care and Health Unit, and Centre for Health Economics once published a study of ‘Hospital competition under fixed prices’ (research paper 80).

The argument that competition improves quality fell apart because of the sheer volume of invalid assumptions, as demonstrated in the following quotation from that document:

The review of the theoretical literature suggests that the plausible argument that greater competition amongst providers facing fixed prices will lead to higher quality rests on strong assumptions which may not hold. The literature shows that more competition increases quality when providers are profit maximisers and marginal cost of treatment is constant. Competition has an ambiguous or negative effect on quality when providers are altruistic, the marginal cost of treatment is increasing and quality is only imperfectly observable. The literature has been largely silent on the relationship between market size, as measured by total population or population density, and quality.

Competition as the failed central plank of the Health and Social Care Act (2012)

The raison d’être of the Health and Social Care Act (2012) is nothing to do with improving clinical care, though that could be a consequence of its three main areas. There is nothing about how patient staffing can be addressed, related to the equally potent issue of patient safety. It has never been entirely clear how the Act came about, but the three planks of policy are laid bare by the impact assessments from the Department of Health (2011) (published here on 19 January 2011). The three main planks of the Bill are firstly to establish the competitive market as the substrate for the National Health Service, to define better the insolvency régime (it is important to clarify how economic entities as autonomous units can be allowed to fail ‘to get them out of the system’), and the machinery needed to regulate the market. I will come to how Monitor has had to come into being to ‘regulate the internal market’, but it is not insignificant that introducing the market is itself a source of waste and inefficiency (such as duplicated transaction costs). Of course, the issue of how to regulate the internal market should be regulated has often been analysed in a substandard manner before by some social scientists, not competition lawyers, but this is now an important policy issue which has been thrust into the limelight.

Central to this argument is that competition promotes innovation. This is indeed cited on page 41 of the “Impact assessment”.

Ahn (2002) reviews a large number of studies on the link between competition and innovation and concludes that competition encourages innovative activities and has a significant impact on long-term productivity growth:

“Competition has pervasive and long lasting effects on economic performance by affecting economic actors’ incentive structure, by encouraging their innovative activities, and by selecting more efficient ones from less efficient ones over time”.

The myth that competition drives innovation, when COLLABORATION does

However, there is an intrinsic problem in business management: the assumption that competition drives innovation. This bit of missing evidence in the impact assessments totally distorts the raison d’être of the Act itself, and of course there is a separate debate in management as to whether innovation can be detrimental to organisational culture or learning. There is considerable evidence now that collaboration, not competition, can be essential for innovation. This theme is taken up in an interesting article about ‘internal markets’ from Forbes:

Major innovation needs collaboration, not competition. For innovation, internal markets have the same problem as hierarchical bureaucracies. Managers vote their resources for innovations that bolster their current fiefdoms and careers. The safest strategy is to stick to the status quo. Ms. Kimes’ article gives multiple examples where competing managers at Sears looked after their own units at the expense of the interests of the firm as a whole.

Second, innovation isn’t basically an issue of spending. Booz & Company’s annual innovation reports repeatedly state: “Spending more on R&D won’t drive results. The most crucial factors are strategic alignment and a culture that supports innovation.”

Finally, the hope of the internal markets theory is that, by funding a variety of different ideas, the organization will emulate the evolutionary process of natural selection and so the best ideas will survive and prosper. The problem is that once a disruptive idea starts to flourish and becomes more interesting than the normal bread-and-butter work of the organization, it risks becoming a threat to the rest of the organization.

The wheels are coming off the Competition Juggernaut a bit sooner than expected

David Williams at the Health Services Journal only very recently on 16 September 2013 reported that:

NHS England has delayed the publication of its choice and competition framework amid a “paucity of evidence” of the benefit to patients.

Policy director Bill McCarthy made the announcement at a board meeting on Friday, highlighting the issue as a new risk for the central body.

The framework and supporting documents were originally slated for publication in July.

Mr McCarthy said: “We’re having [a discussion] with Monitor around choice and competition, and how best they can be applied in healthcare to improve outcomes for patients, including a better experience.

“That’s taken a bit longer than we hoped.

“We had hoped to be able to put out some guidance early in the summer – I think that probably reflects… it is one of the areas where there is a paucity of evidence.”

“Operation Propper”

Clause “B47” (p.42/3) in the official Impact Assessments from the Department of Health cites one of the key planks of evidence that the Department of Health wishes to use in promoting its competition argument.

“A July 2010 study by health economists Martin Gaynor, Rodrigo Moreno-Serra, and Carol Propper investigated outcomes in the NHS following the introduction of choice in 2006. They conclude as follows: “We find that the effect of competition is to save lives without raising costs. Patients discharged from hospitals located in markets where competition was more feasible were less likely to die, had shorter length of stay and were treated at the same cost”. The study found that there was a larger inflow of patients to better quality hospitals after the 2006 NHS reforms, suggesting that popular providers in health care are able to expand supply.”

There is an even worse justification for the competition dogma later in the Department of Health’s official impact assessments:

B48. A January 2010 study by the London School of Economics also looked at NHS data post- introduction of choice in 2006. The key conclusion is as follows: “Using AMI mortality as a quality indicator, we find that mortality fell more quickly (i.e. quality improved) for patients living in more competitive markets after the introduction of hospital competition in January 2006. Our results suggest that hospital competition in markets with fixed prices can lead to improvements in clinical quality”.

B49. Evidence from the LSE shows that management quality – measured using a new survey tool – is strongly correlated with financial and clinical outcomes such as survival rates from emergency heart attack admissions (AMI). Moreover, the study finds that higher competition (as indicated by a greater number of neighbouring hospitals) is positively correlated with increased management quality.

The general issue received a scathing response from Allyson Pollock, Alison Macfarlane and Ian Greener who could not have put it any clearer.

The major improvements in outcome after acute myocardial infarction can be attributed to improvements in primary prevention in general practice and in hospital care, including the introduction of percutaneous IV angiography. The government’s own cardiac Tzar, Sir Roger Boyle, was sufficiently angered by their claims to respond with withering criticism: “AMI is a medical emergency: patients can’t choose where to have their heart attack or where to be treated!” It is “bizarre to choose a condition where choice by consumer can have virtually no effect”. Patients suffering “severe pain in emergencies clouded by strong analgesia don’t make choices. It’s the ambulance driver who follows the protocol and drives to the nearest heart attack centre”.

The intervention that the authors claimed reduced heart attacks and was a proxy for competition was patient choice. In 2006, patients were given choices of hospitals including private for-profit providers for some selected treatments. Less than the half patients surveyed in 2008 even remember being given a choice, and only a tiny proportion made those choices based on data from the NHS choices website. If patient choice was one of the two key elements of competition, it wasn’t prevalent and rather than being derived from the authors’ data, it was assumed.

Crucially, even if patient choice had occurred it does not explain why heart attack mortality rates fell. There is no biological mechanism to explain why having a choice of providers for elective hip and knee operations surgery (including hospitals which did not treat or admit acute MI patients) could affect the overall outcomes from acute myocardial infarction where patients do not exercise choice over where they are treated.

The problem of data dredging is well known; if you repeat an analysis often enough significant statistical associations will appear. But the authors make the cardinal error of not understanding their data and of confusing minor statistical associations with causation. Deaths from acute MI are not a measure of quality of hospital care, rather a measure of access to and quality of cardiology care. At best, what the paper appears to show is not the effect of choice on heart attacks but that if an individual has a heart attack in an area close to a hospital and their GP is near the hospital, then outcomes are better, but such findings are not new.

Going for their central criticism, in the same article, they explained:

The drip feed of pro-competition studies from Zack Cooper at LSE raises serious questions for the academic community and the public about what constitutes bad science and what to do about its politicisation. Recently, on 21 February in the columns of the FT, Cooper and colleague Julian Le Grand warded off serious scientific criticisms of the studies with an ad hominem attack, categorising those in favour of competition as empiricists and those whose work is critical of markets in health care as intuitivists. In so doing they sweep aside decades of careful economic theory and evidence which shows why markets do not work in health services and distract the reader from the facts that their work is ungrounded and far from empirical. Their repeated claims that competition in the NHS saves lives and improves quality and productivity have no scientific basis.

A litigation factory?

Of course the £3bn Health and Social Care Act (2012) which have no mechanisms of helping with clinical staffing or patient safety, in the drive for business efficiencies, have become a bonanza for private companies to which work has been outsourced, and a boon for the commercial and corporate law firms which are now nurturing them. The NHS of course has trouble in meeting the formidable legal bill against the private providers, as well as staff it has made redundant due to this top-down reorganisation.

I have long argued that the commissioning (‘competition and choice’) process through section 75 Health and Social Care Act (2012) would soon turn sour, for example in the original blogpost I did for the Socialist Health Association in January 2013 here. Crispin Dowler recently reported early tensions on 11 September 2013 in the Health Services Journal:

A number of private providers are likely to take complaints to the NHS’s new competition regulator Monitor over the next three years, the chief executive officer of Ramsay Health Care UK warned last week.

Jill Watts, whose organisation was ranked the largest private provider of NHS funded acute care in the most recent study by market analysts Laing and Buisson, said she could “almost guarantee” there would be challenges to come.

She told a Westminster Health Forum conference that the April switchover to clinical commissioning groups under the government’s health reforms had not produced uniform changes in commissioners’ attitudes to the private sector.

“In one part of the country, where we had almost adversarial relationships and they didn’t want to use us at all, they’re very keen to work with us now,” she said.

The New Labour Legacy, competition, performance and “the target culture”

Competition was intimately wound up in the target-driven agenda. NHS hospitals would have to meet targets to jump through regulatory hoops to become NHS Foundation Trusts. As long as finances stacked up, patient safety appears to have suffered in some Trusts under Labour’s watch. Whilst the evidence for competition being beneficial in the NHS market is weak, it has remained with us in policy like a bad smell. Julian LeGrand could have not put better how idiotic this policy really was.

The problem is indeed partly money – a historical legacy of underspending in all areas of public services. But, as John Hutton says, it isn’t only that. There is also a legacy of poor performance: of failing to use what resources there are effectively and efficiently. This is a lesson that six years in power have taught New Labour. The Government has tried and is trying a wide variety of techniques to lever up performance: publishing league tables on comparative performance, encouraging private sector involvement, offering independence to high fliers, stimulating competition and choice. But one of its favourite instruments has been targetry: the setting of targets with heavy penalties for failing to meet them. Many in government are convinced that this is the way to go.

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