by FPH President, Professor Lindsey Davies
The Health Act came into effect on 1 April and led to the biggest changes ever known in the NHS since it was created. For many people, this change has happened without any discernable difference to the healthcare they receive. It is not surprising that many people have no interest in how the NHS is funded and run: their priority is getting the right care when they need it.
However, FPH has serious concerns about what the Section 75 regulations will do to the way the NHS is funded and run. These regulations are currently before parliament, and have been described as the engine that will power the Health and Social Care Act.
The Act and the regulations could have an impact on any NHS patient, because of their potential effect on how we:
– Provide joined-up treatment and care
– Protect children and vulnerable adults,
– Provide vaccines for children and adults,
– Screen for illnesses and diseases like cancer, and
– Deal with outbreaks of infections like measles and pandemic flu.
One of the aims of the Act was to put GPs in the driving seat of running the NHS through their membership of the new Clinical Commissioning Groups (CCGs). We believe there is a significant risk that CCGs will instead be left considering if they can drive the car for fear of legal challenges from the various companies who could supply the petrol.
For example, Regulation 5(1) relates to circumstances in which there is only one potential provider for a health service, such as physiotherapy. Yet the chances of there being only one potential provider are so small that Clinical Commissioning Groups (CCGs) will be obliged to set up a competitive tendering service for virtually all services.
We are not convinced that commissioners are free to decide when and how competition is used. CCGs are small organisations with limited legal and procurement expertise. The regulations make it possible for private providers to challenge the status quo if they think that they could provide a better service. The possibility of such a challenge could lead to a more expensive and wasteful procurement process in which private providers will oblige GPs to tender services.
We welcome assurances from the former Secretary of State and other ministers, that commissioners should be free to decide when and how competition is used. We are pleased that ministers are committed to integration. Any regulations should enable and facilitate this.
However, our fear is that these intentions are contradicted by the complexity of the draft guidance and existing EU law. The likely outcome, desired or not, is that services will be broken up and private providers may be able to compete for any NHS funding for patients.
Taxpayers’ money and doctors’ time must not be wasted reviewing cost effective services that work well, which patients value, because private providers can challenge how they are run.
As FPH’s risk assessment report (links to a pdf) warned, this could increase health inequalities and destroy cooperation and integration. For example, if a patient with a complex, long-term condition like diabetes receives care from five different profit-making providers, it is not at all clear how they will work together and share confidential data appropriately to provide the right care.
That’s why FPH is calling on the government and Monitor to publish guidance on the regulations to clarify how competition in the NHS will work. In our experience, and from what our expert members tell us, such clarification is urgently needed to make sure public money and resources are used effectively.