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Blurred lines in English dementia policy – privatisation in all but name
In case you don’t like the soundtrack, here are the slides.
To some extent, Europe resolved our dispute about whether we should aspire to an ‘early diagnosis’, or ‘timely diagnosis’ for dementia. The overall consensus from the European ALCOVE project was that a diagnosis should be timely, in keeping with the needs of the person with a dementia, his friends, his family or his carers.
This was an extremely helpful move in English policy, although the road had not been that clear.
One blurred line in the public was how dementia so massively became conflated with all memory problems in the elderly. Whilst it was argued that the memory problems in Alzheimer’s disease should no longer be passed off as ageing (and indeed there are strong cultural pressures elsewhere for calling dementia ageing), there was some concern from GPs that older people thought their memory problems were dementia because of the widespread media campaign. Many of these individuals were later to arrive at a diagnosis of minor cognitive impairment, underactive thyroid, or depression. Given that there are hundreds of different causes of dementia which can affect any part of the brain and brainstem (though they all tend to start off in different areas), it’s not altogether surprising that some of the dementias don’t present with memory problems at all.
The drive to make the diagnosis is almost certainly going to be affected by the policy from NHS England to achieve ‘ambitions’ for increasing dementia diagnosis rates. The evidence from the MRC study at Cambridge has demonstrated that this prevalence has in fact been falling over some decades, so there is serious concern that a drive to increase dementia rates will lead to a large number of false diagnoses in 2014. This is definitely one to watch, as a false diagnosis can lead to very serious harmful repercussions. Nonetheless, the number of people who have a MMSE in the region of 10-15 on initial diagnosis is, arguably, staggering, and blatant lack of diagnoses of more obvious presentations of diagnosis most people would agree is unacceptable.
The spotlight in G8, and certainly the presence of corporates there, will lead to increased scrutiny of those people who financially have much to gain from an early diagnosis. An early diagnosis may indeed lead to someone ‘accessing care’, even that care results from a personal health budget with treatments which are not proven clinically from the evidence. The direction of this particular plan depends how far individualised consumer choice is pushed in the name of personalisation. Genetics, neuropsychologists, and pharmaceutical private sector companies wishing to monitor the modest effects of their drugs on substances in the brain all stand to capitalise on dementia in 2014, much of which out of the NHS tax-funded budget. This of course is privatisation of the NHS dementia policy in all but name. One thing this Government has learnt though is how to make a privatisation of health policy appear popular.
Despite corners being cut, and the drive to do ‘more for less’, it will be quite impossible to avoid making a correct diagnosis in individuals thought to have a dementia in the right hands. A full work-up, though the dementia of the Alzheimer type, is the most common necessitates a history of the individual, a history from a friend, an examination (e.g. twitching could be associated with the motor neurone disease variant found in one of the frontotemporal dementias), brain scan (CT/MRI/PET), brain waves (EEG), brain fluid (cerebrospinal fluid), bedside psychology, formal cognitive psychological assessment, and even in some rarely a brain biopsy (for example for variant Creutzfeld-Jacob or a cerebral inflammatory vasculitis).
Analysis by paralysis is clearly not desirable either, but the sticking point, and a blurred line, is how England wishes to combine increasing diagnostic rates; and making resources available for post-diagnosis support; making resources available for the diagnosis process itself including counselling if advised. As the name itself ‘dementia’ changes to ‘neurocognitive impairment’ under the diagnostic manual DSM in 2015, the number of people ‘with the label’ is likely to increase, and this will be ‘good news’ for people who can capitalise on dementia. The label itself ‘neurocognitive impairment’ itself introduces a level of blur to the diagnosis of dementia itself.
The general direction of travel has been an acceleration of privatisation of dementia efforts, but this to be fair is entirely in keeping with the general direction of the Health and Social Care Act (2012). A major question for 2014 is whether this horse has now truly bolted?
Why I wrote ‘Living well with dementia’
“Living well with dementia: the importance of the person and the environment for wellbeing” is my book to be published in the UK on January 14th 2014. I have written it on my own, but I have drawn on the published work a number of Professors working in the field of dementia have sent me. I hope the advantage of having an overview of their research programmes has been to put together with one voice where exactly this approach might be heading using the most contemporary published papers. I am enormously grateful that these busy Professors were able to supply me with their recent papers.
I was asked by my publishers to provide pointers about what a “marketing strategy” for this book might be. I can honestly say that, having given considerable time to thinking about this issue, I have no intention of pursuing a conventional promotion of my book. I don’t intend to do nothing, but I can confidently say that this book will be widely read. I have no intention of flogging it to commissioners, who will have their own understanding of what health or wellbeing is in the modern construct of NHS England’s policy.
I do, however, have every intention of addressing what I think is a major shortfall in the medical profession in their approach to dementia. Their emphasis has been, where done well, the exact diagnosis of dementia through an accurate history and examination of a patient, with appropriate investigations to boot (such as a CT scan, MRI, lumbar puncture, EEG or cognitive psychology). The combined efforts of Big Pharma and medics have produced limited medications for the symptomatic treatment of memory and attention in some dementias, but it would simply be a lie to say that they have a big effect in the majority of patients, or that they reverse the underlying the disease process consistently and robustly.
But that’s the medical model, and certainly the ambition for a ‘cure’ is a laudable one. I found the recent G8 dementia summit inspiring, but a bit of a distraction from providing properly funded solutions for people currently living with one of the hundreds of dementias. Many of us in the academic community have had healthy collaborations for some time; see for example one of the Forewords to my book by Prof Facundo Manes, Chair of Research of the World Federation of Neurology (Dementia and aphasia). To say it was a ‘front’ for Big Pharma would be unnecessarily aggressive, but it has been openly admitted in the media that a purpose of the summit was to assist ‘an ailing industry’.
I think to emphasise what might be done for future patients of dementia would be to fail to maximise the living of people with dementia NOW. By this, I mean a correct and timely diagnosis of an individual, the suggestion of appropriate assistive technologies and innovations, appropriate leisure activities, and the proper design of a positive environment (whether that be a ward, a house or external environment).
My book is strongly footed in current research, but I openly admit that research does not have all the answers. I should like there to be a strong emphasis also in non-pharmacological approaches, such as the benefits of life story and reminiscence, art or dancing. Lack of current research certainly does not make these approaches automatically invalid, particularly when you consider the real reports of people with dementia who have reported benefit.
The main reason is that I do not wish to organise attendance in a series of workshops or conferences about dementia is that I do not wish to be perceived as selling a book. I am more than happy to talk about the work if anyone should so desire. A number of my friends are very well-known newspaper journalists, and I deliberately have not approached any of them as I consider this might be taking advantage of my friendship. I haven’t approached dementia campaigners, or other dementia charities, as I don’t wish to get involved in some sort of competition for other people’s attention. I haven’t sought the ‘celebrity backing’ of some senior practitioners in dementia, although Prof John Hodges (a world expert particularly in the frontotemporal dementias) kindly wrote one of my Forewords. If people wish to discuss the issues in a collaborative manner to take English policy further, I’d be delighted.
At the centre of this book is what an individual with dementia CAN do rather what they cannot do. If you’re looking for a cogent report into the medical deficits of people with dementia, you’ll be sorely disappointed. I spent about 10 years of medical training at undergraduate and postgraduate levels, without having heard of personhood or Tom Kitwood’s work once. I think this a travesty. As a person who is physically disabled himself, the need to understand the whole person is of massive personal significance to me. I think that, beyond doubt, future training of anyone in the caring professions, including medicine, will have to start with understanding the whole person, rather than seeing a patient with a series of problems to be cured or symptomatically addressed.
No academic, practitioner, or charity can have a monopoly of ideas, which is why I hope my book will be sincerely treated with an open mind. People have different motivations for why they get involved in dementia; for example, a corporate wishing to be part of a ‘dementia friendly community’ through a charity might have a different guiding principle to an academic at a University wishing to research from scratch some of the fundamental principles of a dementia friendly community. Despite all the “big players”, nobody can match up to THAT individual who happens to be living with dementia; that person is entitled to the utmost dignity and respect, as brilliantly expressed by Sally Marciano in her powerful Foreword.
I am hoping very much to meet up with some personal friends that I’ve met in the #dementiachallengers community on January 18th 2014, and this is as close as I’ll get to the book launch. But I hope you will find the book readable. I don’t feel that there’s any other book currently available which bridges these two totemic topics (dementia and wellbeing); but I hope there are other good reasons for reading it!
Related articles
- Need for Dementia Caregivers Grows as Boomers Age (abcnews.go.com)
- A cure for dementia could be found within twelve years, David Cameron has said (telegraph.co.uk)
- Simple Steps Could Keep People With Dementia at Home Longer: Study (nackpets.wordpress.com)
The G8 dementia Summit: the comparison with the botched NHS reforms is striking
This week, to great fanfare, the G8 hosted its summit on dementia. Indeed, that the G8 were discussing a single condition was indeed remarkable. That they were joining forces to consider working together on this inspired hope.
What was unforgiveable was the sheer volume of myths about dementia which were pedalled though by the media. Prof Alistair Burns to his credit gave an answer in an interview by Emily Maitlis explaining how dementia prevalence rates appeared to be falling, in response to the backdrop set up by media memes such as ‘timebomb’. Many were left extremely angry on account of the lack of balance, completely distorting the picture such that any idea of someone ‘living well with dementia’ became a rarity.
What was not expected was a sanitisation of advanced dementia, but even there there was not a discussion of end of life care. In fact, there generally was no discussion of a minimum safe level of health and social care in any of the countries. The media pushed hard ‘a cure for dementia by 2025′, which major Alzheimer’s societies had signed up to. The claim is complete and utter rubbish, as there are over a hundred different types of dementia; the public were unashamedly being sold a pup.
The English health system, the National Health Service, has an obsession with ‘efficiency’. So much so it will happily fork out to pay one for one junior doctor covering all the general medical hospital every night for a week, and that junior doctor doesn’t stop all night. Sometimes that junior doctor will be expected to cover the wards too. Cover by nurses can be equally ‘lean’ during the weekends too.
The obsession with measuring ‘I want good care’ and regulation is akin to a teacher who has forgotten to teach but can set regular assessments. When the system is set up to run everything with much less doing a lot more, it’s possible something has got to give. And this is of course precisely what happened at Mid Staffs.
And yet out of the blue there appeared a 493 page document ultimately called the Health and Social Care Act (2012) which had nothing to do with this most important point about patient safety. There is not even a single clause to do with patient safety (unless you include the clause abolishing the National Patient Safety Agency). The medical Royal Colleges were not involved. The BMA was not involved. And yet the Act of parliament, outsourcing and privatising the NHS, is just what the Corporate ordered.
This is what is known in the (business) trade as an ‘opportunity cost’ where money and efforts could have been better spent elsewhere. In this particular case, despite a promise of ‘no top reorganisation’, there was a £3bn reorganisation.
When attending a medical ward, you have to go to the sick patient first. You have to prioritise. If there had to be an unannounced reform of the NHS, outsourcing it was not the priority. The latest survey even shows that the public don’t especially like private providers doing NHS work.
Likewise, the priority for dementia care should have been investment in the social capital of caring. Too often carers are embattled with the biological, financial and legal considerations of caring. Many carers are themselves on zero-hours contracts. The G8 dementia summit was a great opportunity to confront that.
It didn’t. Instead, with alarming synchrony, the G8 leaders came together to sing off the corporate script. Vivienne Parry with effortless ease choreographed a seemingly spontaneous discussion about well rehearsed arguments for the need for ‘big data’, global data sharing, genomics, and personalised medicine, for much of the day. Prevention was of course discussed, but this is of course intimately wound up with the collection of information about the person, and the use of that other pet subject, biomarkers.
And more research is not better research, in the same way bigger information is not better information. If research monies are diverted into data analysis, genomics and personalised medicine, these monies will be diverted away from research into caring for example. One wonders whither the ‘cure for dementia’ will actually go, unless they have another fifteen years to look at slowing the progression of Alzheimer’s disease. The evidence that cholinesterase inhibitors, a class of drugs used to treat symptomatically memory and attention problems in Alzheimer’s disease, has a beneficial effect on slowing disease progression is as low as it possibly can be after nearly 20 years of expensive research in this area.
The G8 summit, like the Health and Social Care Act, was ‘corporate capture’ at its best, so if you’re angry, well done, that is the appropriate emotional reaction! If you were wondering if you’d accidentally missed the discussion of carers and how they would be involved until 2025, don’t worry, you hadn’t. They weren’t there.
My personal view of the importance of high quality #research in dementia for the #G8summit
I have a foot in both research camps.
I believe in good quality research about the ‘medicine’ of dementia.
In the world of research, I am known to have contributed an original paper in the diagnosis of the frontal-variant of frontotemporal dementia.
This paper explained why people with a dementia could even end up having a diagnosis of this type of dementia, even though presenting in clinic with normal blood tests, psychological tests or brain scans.
Such patients did, however, have profound changes in behaviour and personality noticed by their closest ones, usually friends and family.
The paper itself has been quoted in the current Oxford Textbook of Medicine chapter reviewing the most common types of dementia, their diagnosis and management.
I do however have academic views on the importance of the ‘timely’ correct diagnosis of dementia, rather than early diagnosis.
I never give advice about anything on Twitter, as I am not a physician, but it is nice when what you say has an impact on general education of people about dementia.
I can be found on both @dementia_2014 and my other Twitter account (as I am trained in academic law as well as research in dementia) @legalaware.
Take for example how depression can be in the wrong hands misdiagnosed as dementia.
This is an example, perhaps, of where a diagnosis is a label, and disabling not enabling.
But for very many a correct diagnosis of a type of dementia will be a key to the door for opening up the relevant care.
I feel that, whatever the ‘fiscal constraints’ the NHS finds itself in now and the future, despite the argued need for transformational change in NHS services, people with dementia should be at some stage diagnosed by somebody with specialist medical experience.
This is reflected here in a recent excellent article in the Telegraph.
The other camp is this, and oddly enough there is some overlap in my wish for people with dementia to be given the highest priority in society.
I also firmly believe in good quality research of allowing people to live as best a life they can.
This is intensely personal, as I am physically disabled, and I am all too aware about how people can make crash judgments of you.
I am about to publish a book on ‘Living well with dementia’ on January 13th 2014.
I am honoured to be well respected by academics in the field of dementia, including Prof Alistair Burns the current lead for dementia in England.
I thrive from the research contributions daily all around the world in research into dementia.
I would like to see the UK play a part in leading the research community about all aspects, including the medicine of the condition itself, its possible cure one day, and current practical help in improving quality of life.
Finally, I think with the current academic community in the UK in dementia, the UK can and should achieve this.
Would I want to know if I had a dementia?
Would I want to know if I had a dementia?
The background to this is that I am approaching 40.
For the purposes of my response, I’m pretending that I didn’t study it for finals at Cambridge, nor learn about it during my undergraduate postgraduate training/jobs, nor having written papers on it, nor having written a book on it.
However, knowing what I know now sort of affects how I feel about it.
Dementia populations tend to be in two big bits.
One big bit is the 40-55 entry route. The other is the above 60 entry route. So therefore I’m about to hit the first entry route.
I don’t have any family history of any type of dementia.
My intuitive answer is ‘yes’. I’ve always felt in life that it is better to have knowledge, however seemingly unpleasant, so that you can cope with that knowledge. Knowledge is power.
If I had a rare disease where there might be a definitive treatment for my dementia, such as a huge build-up potentially of copper due to a metabolic inherited condition called Wilson’s disease, I’d be yet further be inclined to know about it.
I would of course wish to know about the diagnosis. The last thing I’d want is some medic writing ‘possible dementia’ on the basis of one brain scan, with no other symptoms, definitively in the medical notes, if I didn’t have a dementia. This could lead me to be discriminated against to my detriment in future.
There is a huge number of dementias. My boss at Cambridge reviewed the hundreds of different types of dementia for his chapter on dementia in the current Oxford Textbook of Medicine. Properly investigating a possible dementia, in the right specialist hands, is complicated. Here‘s his superb chapter.
But just because it’s complicated, this doesn’t mean that a diagnosis should be avoided. Analysis can lead to paralysis, especially in medicine.
I very strongly believe that there’s absolutely nobody more important that that person who happens to living with a diagnosis of dementia. That diagnosis can produce a constellation of different thinking symptoms, according to which part of the brain is mainly affected.
I also think we are now appreciating that many people who care for that person also may have substantial needs of their own, whether it’s from an angle of clinical knowledge about the condition, legal or financial advice.
I think though honesty is imperative.
I think we need people including charities to be honest about the limitations and potential benefits in defined contexts about drug treatments for dementia. It’s clearly in the interest of big pharmaceutical companies to offer hope through treatments which may objectively work.
I think we also need to be very open that a diagnosis of dementia isn’t a one path to disaster. There is a huge amount which could and should be done for allowing a person with dementia to live well, and this will impact on the lives of those closest to them.
This might include improving the design of the home, design of the landscape around the home, communities, friends, networks including Twitter, advocacy, better decision-making and control, assistive technology and other innovations.
The National Health Service will need to be re-engineered for persons with a diagnosis of dementia to access the services they need or desire.
Very obviously nobody needs an incorrect ‘label’ of diagnosis. The diagnosis must be made in the right hands, but resources are needed to train medical professionals properly in this throughout the course of their training.
All health professionals – including physicians – need to be aware of non-medical interventions which can benefit the person with dementia. For whatever reason, the awareness of physicians in this regard can be quite poor.
There is no doubt that dementia can be a difficult diagnosis. Not all dementia is Alzheimer’s disease, characterised by symbolic problems in new learning. There are certain things which can mimic dementia for the unaware.
But back to the question – would I rather know? If the diagnosis were correct, yes. But beware of the snake oil salesman, sad to say.
Background to the world of assistive technology
It is widely propagated in the media that the two major drivers for ‘increased costs of caring’ for the National Health Service (NHS) comprise the ageing population, as well as the increasing rôle that technological advances will play. Both factors are of course subject to ferocious debate regarding the economic sustainability for the NHS, but certainly one potent myth is that assistive technologies are always expensive. This is not true, and the field of assistive technologies is ever expanding.
David Gems (2011) argues that gerotechnology is at the heart of living well in the context of aeing:
[Another] goal of research on ageing is to improve the health of older people. Here, biogerontology is akin to other biomedical research topics, sharing with them the goal of understanding the biological mechanisms that underlie pathology. The particular value of such understanding is that it enables the development of therapeutic treatments, leading to improved health and wellbeing.
A formidable challenge still remains in the relative lack of evidence for pursuing good design principles as well as assistive technologies in improving living well with dementia. For example, the National Dementia Strategy (2009) provides the following.
The evidence base on design principles is sparse, but there is consensus on key principles and a number of good practice checklists are available. There is a more substantial evidence base to show the opportunities offered by assistive technology and telecare to enable people with dementia to remain independent for longer, and in particular to help the management of risk. But the data on newer approaches are still sparse and inconclusive. An evaluation of one scheme demonstrated cost effectiveness and reports of improved quality of life. Large-scale [Department of Health] field trials of such technology are currently under way.
Dementia conditions have the potential to make day-to-day life more difficult. It is clearly very difficult to ‘know’ what an individual feels in terms of his or her wellbeing, even if he or she is unaffected by dementia, even though a conceptual framework of general consciousness is now under way (see, for example, Crick and Koch, 2003). Indeed, as Greenfield (2002) explains, the relationship between the words ‘consciousness’ and ‘mind’ merit attention.
Emotions play a critical role in the evolution of consciousness and the operations of all mental processes (Izard, 2009). Little things like mislaying keys, forgetting to turn off the taps or leaving the gas unlit can prove frustrating or even create hazards.
Orpwood (2007) has argued that mechanisms underlying consciousness and qualia are likely to arise from the information processing that takes place within the detailed micro-structure of the cerebral cortex. It looks at two key issues: how any information processing system can recognise its own activity; and secondly, how this behavior could lead to the subjective experience of qualia. In particular, it explores the pattern processing capabilities of attractor networks, and the way that they can attribute meaning to their input patterns and goes on to show how these capabilities can lead to self-recognition. That paper suggests that although feedforward processing of information can be effective without attractor behaviour, when such behaviour is initiated, it would lead to self-recognition in those networks involved. It also argues that attentional mechanisms are likely to play a key role in enabling attractor behaviour to take place.
There has become a growing feeling that ‘assistive technologies’ (AT) may provide more support for the carer than for the individual with dementia (Kinney et al., 2004), or to ease service provision. However, there have been some noteable exceptions to this focus on security and safety, such as the work of Topo and colleagues (Topo et al., 2004) on the enjoyment of music, and Alm and colleagues (Alm et al., 2005) on general reminiscence.
However, the influence of engineering on the quality of life research has come to a fore in most recent years (for example Orpwood et al., 2007). The INDEPENDENT study has been specifically aimed at designing technology to support quality of life. This collaborative project involved academic engineers, social scientists and architects, together with representatives of user groups and a manufacturer. The design work was based on a comprehensive user survey in which people with dementia themselves highlighted the factors which affected their quality of life. These data were analysed through a series of multidisciplinary workshops through the whole consortium.
There have been, nonetheless, a number of concerns raised about the assistive technology. Roger Orpwood submitted the following comment to the consultation held by the Nuffield Council on Bioethics summarised in ‘Dementia: ethical issues’ between May 2008 and July 2008.
Care professionals often express concern about the use of assistive technology because they see it as something to replace human care. There is no doubt that there is a real danger that some purchasers may see it in this way, either to save money on the part of local authorities, or to reduce the need for direct support on the part of relatives. Those of us involved in developing such equipment see it more as augmenting human care rather than replacing it. However there are some things technology can do that is better than human support. It doesn’t get tired or frustrated, it can operate 24 hours a day, and it clearly doesn’t get upset by the behaviour of the person with dementia. There is evidence from our own work that technology can provide a much clearer picture of how the user is getting on than can care staff. Our last client in London had a major sleep problem that no-one had picked up, but as soon as our sensor network was turned on the problem shouted at us. So technology has an important role to play, and can do some things better than human carers, but it cannot be a replacement for human care, and all the expression of feeling, empathy and understanding that humans can provide. There are major ethical concerns if it is viewed as a replacement.
Suggested readings
Crick F, Koch C. (2003) A framework for consciousness, Nat Neurosci, 6(2), pp. 119-26. [Review.]
Department of Health (2009). Living well with dementia: A NationalDementia Strategy: Putting people first, London: Her Majesty’s Stationery Office, available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/168221/dh_094052.pdf
Gems, D. (2011) Tragedy and delight: the ethics of decelerated ageing, Philos Trans R Soc Lond B Biol Sci, 366(1561), pp. 108-12.
Greenfield, S. (2002) Mind, brain and consciousness, British Journal of Psychiatry, 181, pp. 91-93.
Izard, C. (2009) Emotion theory and research: highlights, unanswered questions and emerging issues, Annu Rev Psychol, 60, pp. 1-25.
McKinney, K.M., Kart, C.S., Murdoch, L.D., and Conley, C.J. (2004) Striving to provide safety assistance to families of elders: the SAFE house project, Dementia, 3, pp. 351-370.
Nuffield Council of Bioethics. (2009) Dementia: ethical issues, available at: http://www.nuffieldbioethics.org/sites/default/files/Nuffield%20Dementia%20report%20Oct%2009.pdf.
Orpwood, R. (2007) Short communication: neurobiological mechanisms underlying qualia, Journal of Integrative Neuroscience, 6(4), pp. 523–540.
Topo, R., Maki, K., Saarikalle, K., Clarke, N., Begley, E., Carhill, S., Arsenlind, J., Holthe, T., Morbey, H., Hayes, K., and Gillard, J. (2004) Assessment of music-based multimedia program for people with dementia, Dementia, 3, pp. 331-350.
National Health Service (Procurement, patient choice and competition) Regulations 2013: what is "best value"?
The National Health Service (Procurement, patient choice and competition) Regulations 2013 is the statutory instrument which makes much more sense of the procurement regimen introduced previously. There is hardly any time to discuss the subtleties of this relatively short document which firmly thrusts the rules of the market in “competition” at the heart of NHS procurement. Many will say that these regulations existed in some form previously, but the legal intricacies of them definitely deserve full scrutiny. It sends CCGs into the coalface of making complicated procurement decisions, where the quality of tender might become significantly more important than actual “patient choice”. The procurement legislation as drafted could equally apply to procurement of virtually anything.
The entity, “the relevant body”, defined in s.1(2) as “CCG or board”, making the procurement decision according to s.3(2), and s.3(3) must make the procurement decision which does not favour any particular provider “in particular on the basis of ownership”, and which provides “best value”:
The inclusion of the reference to “ownership” is vague – it could possibly be a reference to not giving preference to NHS providers. The drafting of this Act voluntarily diminishes the rôle of the State in providing the NHS.
At first it seems that “best value” is simply to provide procurement at maximum “efficiency”, however it is widely acknowledged that there may be other benefits and outcomes of “best value” which might be hard to measure, e.g. effect locally on disadvantaged groups, possible local benefit in creating jobs. The notion of “best value” is indeed generally a thorny issue. The BIS document published in November 2011, entitled “Delivering best value through innovation: forward commitment procurement”, does however provide useful guidance. As an explanation of where it has come from, this guidance explains, “[this] comprises the European Union (EU) procurement directives, the EU Treaty principles of non-discrimination, equal-treatment and transparency, and the Governments procurement policy based on value for money”. However, the “best value” solution may not necessarily be the cheapest, and this is particularly relevant to innovative solutions (explained elsewhere in the document):
“Value for money should not be seen as a barrier to innovative solutions. Sometimes innovative offers can look more expensive in the short term, but will be a better offer in the long term. Although not listed explicitly in the Regulations, criteria involving innovative solutions may be used to determine the most economically advantageous tender, where they provide an economic advantage for the contracting authority which is linked to the product or service which is the subject matter of the contract.”
According to Hansard, Earl Howe did not intend to prescribe when ‘competitive tendering’ should exist under section 75 Health and Social Care Act (2012):
However, the problem is that Monitor can step in if the CCGs get the decision “wrong”.
Regulation 10 governs the “anti-competitive principles”. The drafting of this is ‘clunky’, with 10(2) possibly the worst example of a double negative in drafting which offends the basic legal drafting principle of clarity. The Coalition has decided to enmesh the Act full-frontally in domestic and EU competition law (as shown in regulation 10(3)), whereas before there was a lifeline for escape from competition law because of the ambiguity in whether the terms “undertaking” or “economic activity” would apply to the NHS (a downloadable document is here). This is remarkable politically in that often governments describe the EU as imposing unnecessary legislation on UK citizens; here it is almost as if the Coalition is using EU arguments about general procurement law, applicable to widgets not clinical decision-making, to justify their NHS legislation. Again, a nuance in the drafting is clearly that a NHS provider cannot be given any preference in procurement. This reflects a notion in general procurement policy, of “equal treatment of providers”, designed to encourage confidence in the process and preventing abuse of the process for undue preference to any particular suppliers. Whilst this is an objective of the “UNICTRAL model law on the procurement of goods, construction and services” in the preamble, it is thought to be a subsidiary function, and is intended to protect against overt corruption and bribery.
It is an altogether different phenomenon if Parliament had intended to offer a “comprehensive”, nationally-planned health service, and therefore wished to have a corpus of NHS providers to fulfil this aim. There are no legal limitations on Parliament. It can pass any law whatsoever. The classic example (Sir Leslie Stephens, 1882) is that Parliament could pass a law ordering the death of all blue eyed babies.
It is left up to Monitor to “regulate” breaches of this statutory instrument (regulations 13-17). What is striking is that the legislation appears to suggest that all “complaints” are funneled through Monitor, rather than a general health ombudsman or judicial review (presumably CCGs are still public bodies serving a public function in the public interest). The system is therefore highly dependent on Monitor running a fully explicable process, and the statutory guidance on this will be critical. We have already seen this week the judiciary ‘clearing up’ bad law from parliament. The chances are that CCGs, without adequate legal advice, will end up being powerless in querying any decisions that Monitor has judged “incorrect”, which they are fully entitled to do of their own accord according to Regulation 13(2).
The legislation, whatever the intentions of the Conservatives, Liberal Democrats, or Labour, makes it much harder for the NHS to justify procurement from NHS providers without challenges, and whose side Monitor takes on these challenges is incredibly hard to predict because of the complexities in determining what is “best value”.