BMA briefing on the Efford Bill
National Health Service (Amended Duties and Powers) Bill
House of Commons
Second Reading
21 November 2014
The British Medical Association (BMA) is the voice of doctors and medical students in the UK. We are
an apolitical professional association and independent trade union, representing doctors and
medical students from all branches of medicine across the UK and supporting them to deliver the
highest standards of patient care. We have a membership of over 153,000, which continues to grow
every year.
The BMA’s position
The National Health Service (Amended Duties and Powers) Bill primarily seeks to make changes to existing
legislation, most notably the Health and Social Care Act 2012 and the National Health Service Act 2006, with
an impact on the following areas:
• Duties of the Secretary of State
• Financial powers of NHS Foundation Trusts and NHS Trusts
• Competition and procurement in the health service
• The NHS and national or international agreements
We believe that the Bill is a step in the right direction to address concerns about the current lack of ministerial
accountability and responsibility for the NHS in England, as well as ongoing concerns about the over-emphasis
on market forces and use of competition in the NHS in recent years. The BMA strongly believes, for example,
that integration must be given clear prominence over competition, not least because a rise in the number of
health providers increases the risk of fragmentation. We also argue that the NHS should always be the
preferred provider of patient care; but where alternative providers are already delivering services to patients,
commissioners must ensure that these services are integrated with GP practices and hospitals.
However, this Bill gives potentially wide powers to the Secretary of State in a number of areas. We are clear
that care must be taken to ensure that the legislation does not risk introducing even more political interference
in the day-to-day running of the NHS. The operational autonomy granted to the NHS in the Health and Social
Care Act 2012 was, in many respects, a move which the BMA welcomed. Furthermore, it is unclear how the
Bill relates to a number of important bodies and structures created by the Health and Social Care Act, such as
health and wellbeing boards.1
Finally, healthcare professionals would oppose further re-organisation of the health service – we would be
extremely concerned if the legislation were a precursor for further top-down structural change.
2
Key points
• The Health and Social Care Act 2012 came into force fully on 1 April 2013, introducing a
number of new structures and arrangements for the NHS in England. It is a complex and farreaching
piece of legislation, reflecting the wide-ranging nature of the Government’s
programme of reform for the NHS in England. There are ongoing concerns that it has
introduced serious operational challenges.
• The National Health Service (Amended Duties and Powers) Bill is a step in the right direction
to help address concerns about lack of ministerial accountability and responsibility for the
NHS, as well as ongoing concerns about the over-emphasis on market forces and use of
competition in the NHS in recent years.
• The Bill’s focus on reinstating and enhancing the Secretary of State’s duties to promote and
to provide are helpful measures to secure confidence in the Secretary of State’s ultimate
responsibility and accountability for the NHS. However, care must be taken to ensure that
the legislation does not risk bringing in inappropriate political interference in the day-to-day
running of the NHS.
• The Secretary of State’s powers in relation to procurement and contracts are too widely
drafted. These are not sufficient safeguards if a Secretary of State wants to continue to
promote competition. However, if statutory checks and balances were introduced, these
provisions could provide a welcome limitation on the use of competition and promote
integrated services.
• The Bill gives wide discretion to the Secretary of State over determining the level of income
that Foundation Trusts and NHS Trusts can generate from private patients. However,
appropriate safeguards are included.
• The Bill removes Monitor’s responsibilities in terms of competition and, therefore, its
prioritisation as a policy goal. The Bill instead puts decision-making powers back in the hands
of the Secretary of State. While this is better than the present situation, the safeguards rest
purely upon a sympathetic Secretary of State. Although we agree with the Bill’s policy
intention to limit competition, further amendments are required to fully realise this intention.
• It is positive that the Bill contains provisions to limit procurement or competition obligations
being imposed on the NHS should the Transatlantic Trade and Investment Partnership be
ratified.
• Healthcare professionals would oppose further, major re-organisation of the health service –
we would be concerned if the legislation were a precursor for further, top-down structural
change.
Background
The Health and Social Care Act 2012 came into force fully on 1 April 2013, introducing a number of new
structures and arrangements for the NHS in England. It is a complex and far-reaching piece of legislation,
reflecting the wide-ranging nature of the Government’s programme of reform for the NHS in England.
Despite the Government’s assurances to the contrary, the Act was the catalyst for massive, disruptive, topdown
reform of the NHS. These changes have been set against a background of an increasingly tough
financial climate for the NHS at a time when the health service is seeking to achieve unprecedented levels of
3
savings. The legislation has been a major distraction, costly to implement, and has taken vital funding away
from frontline services.
The BMA is committed to the founding principles of a National Health Service delivered in a cooperative and
coordinated environment, where patients are guaranteed the most clinically-appropriate and cost-effective
care. With these key principles in mind, we have actively engaged with the Government and others to
influence the direction of policy travel presented in July 2010.
During passage of the legislation, we repeatedly stated that some potentially positive elements of the reforms –
giving clinicians greater responsibility for commissioning and shaping local health services, increasing public and
patient involvement, and putting a greater focus on improving public health – were threatened by other
aspects, particularly those that sought to increase and enforce competition. We also expressed concern about
the significant gaps in the legislation which needed to be addressed to ensure proper accountability, to prevent
unacceptable variation and to ensure appropriate national oversight.
Since passage of the Act, we have raised concerns about the impact it is having on the ground. Doctors feel
that far from improving the delivery of integrated, patient-focused care, the Act has created serious operational
challenges, undermining the ability of commissioners and providers to exercise clinical judgement fully and
operate in the best interests of their patient populations.2
Doctors continue to be worried that the Act focuses too much on competition and that there is a lack of
coherent, strategic, national leadership and a clear line of ministerial accountability.
Duties of the Secretary of State
Duties to promote and to provide
At present, the Secretary of State’s duty is ‘to promote a comprehensive health service’ and ‘to secure that
services are provided in accordance with this Act’. The pre-2012 duty (NHS Act 2006) was ‘to promote a
comprehensive health service’ and ‘to provide or secure the provision of services in accordance with this Act’.
During the parliamentary debates on the Health and Social Care Act 2012, serious concerns were voiced that
there was insufficient explicit assurance about the Secretary of State’s continuing responsibility for the NHS.3
Since the legislation has been in force, a constant source of concern has been that leadership and
accountability over the NHS is unclear.
The Bill seeks to adjust the Secretary of State’s duties as ‘to promote a comprehensive health service based on
social solidarity’. It also seeks to reinstate the Secretary of State’s duty ‘as to provision of certain services’.
These changes would allow delegation of functions and responsibilities to NHS England and Clinical
Commissioning Groups (CCGs), but would clarify that the Secretary of State retains ultimate responsibility for
the provision of a comprehensive health service, whilst also allowing the NHS England and CCGs day-to-day
operational independence. The addition of ‘based on social solidarity’ to the Secretary of State’s duty to
promote a comprehensive health service is a positive step. This helps clarify Government’s lasting responsibility
towards the NHS were there to be structural changes in the future.
The Bill’s focus on reinstating and enhancing the Secretary of State’s duties to promote and to
provide are helpful measures to secure confidence in the Secretary of State’s ultimate responsibility
and accountability for the NHS. However, this must be balanced with the need for bodies within the
NHS to have sufficient operational independence.
Procurement and contracts
The Bill’s provisions relating to procurement are loosely drafted and give the Secretary of State potentially wide
power to decide the rules. However, the Bill does state that the Secretary of State shall ‘promote the health
service as an efficient service based on mutual cooperation and social solidarity...’ which sets the tone for any
subsequent rules about procurement, presumably preventing competition from becoming the central lever.
The provisions in the Bill also give the Secretary of State free rein to decide what ‘anti-competitive or any other
behaviour...against the interests of people who use health services’ looks like. While the BMA supports the
4
fact that this would override the role of the Competition and Markets Authority (CMA)4 in the NHS, the Bill is
worded too loosely to provide sufficient assurance for the future.
The Bill makes provisions about the status of contracts in the NHS. It states that ‘any person who is aggrieved
at the award of designation [NHS contract] to a provider…may refer the matter to the Secretary of State for
determination…’ This reads as a provision that removes the role of the CMA and Monitor to investigate such
complaints, but this is loosely drafted, and again, gives discretion to the Secretary of State. This and the other
clauses relating to procurement do, however, set out to create a more favourable environment for
commissioners and providers to work together in the design and delivery of more integrated care and services,
around the needs of patients.
The Secretary of State’s powers in relation to procurement and contracts are too widely drafted.
These are not sufficient safeguards if a Secretary of State wants to continue to promote
competition. However, if statutory checks and balances were introduced, these provisions could
provide a welcome limitation on the use of competition and promote integrated services.
Private patient income
At present under the Health and Social Care Act 2012, Foundation Trusts can generate up to 49 per cent of
their income from treating private patients. During passage of the legislation, we argued that significantly
raising the amount of income Foundation Trusts can earn from other sources has the potential to act as an
incentive for them to undertake more non-NHS activity at the expense of NHS patients’ ability to access
services. We were concerned that this could lead to a two-tier health service, as Foundation Trusts invest more
resources in non-NHS facilities.
The Bill seeks to allow the Secretary of State to determine the level of income that can be generated from
private patients, and to allow an individual Foundation Trust to exceed it on a case-by-case basis, if agreed by
the Secretary of State. Once again, these are broadly defined powers in the legislation. The Bill, however, does
insert two safeguards that the BMA called for during the debates on the Act. Firstly, we argued that a
Foundation Trust treating private patients should not have an adverse impact on providing services to NHS
patients. Secondly, we stated that NHS patients should benefit from the Foundation Trust treating private
patients (i.e. private patient income should be re-invested into improving NHS services).
The Bill also allows parallel freedoms for NHS Trusts with respect to raising income from treating private
patients. At present, NHS Trusts can agree with the NHS Trust Development Authority the amount of non-NHS
income that they are able to receive, but there is no corresponding legislation.
Even though the Bill inserts safeguards to govern how NHS Foundation Trusts and NHS Trusts use these
freedoms, it is reasonable to ask why they have been extended to NHS Trusts. Were the Secretary of State to
set the cap at a high percentage, this would send the message that trusts are being encouraged to behave
more like commercial entities than NHS bodies.
The Bill gives wide discretion to the Secretary of State over determining the level of income that
Foundation Trusts and NHS Trusts can generate from private patients. However, there are useful
safeguards inserted to ensure that there is no adverse impact on NHS patients and that NHS patients
should benefit from the Foundation Trust/NHS Trust treating private patients.
Competition and procurement in the health service
During the passage of the legislation, the BMA was opposed to the expansion of Monitor’s role, especially if it
forced commissioners to promote competition between providers. The BMA believes that the Health and
Social Care Act 2012 places too much emphasis on commercialisation and competition, which threatens to
undermine the ethos of the NHS and make both integrated care and collaboration between primary and
secondary care harder to achieve. Currently, the Act treats the need to integrate services and ensure there is
competition between services and providers as equally important. The BMA strongly believes that integration
must be given prominence over competition. The equal status between integration and competition in the Act
5
has led to confusion among commissioners who may feel that their default should be to put all services out to
competitive tendering.
The Bill takes out Monitor’s reference to competition in the Health and Social Care Act 2012 e.g. sections
62(2), 62(3) and 62(10) in the Act. The Bill also takes out applicability of the Competition Act 1998 and
attempts to exempt the NHS from having to follow EU competition law.
However, the removal of 62(10) may have worrying implications as this could have an impact on the current
protection on the proportion of services provided by the private and public sectors. At the moment, Monitor
must not intentionally carry out its functions in order to change this, a move the BMA welcomed. The Bill
removes this protection.
The Bill also transfers Monitor’s functions regarding approving hospital mergers and acquisitions to the
Secretary of State. This is another mechanism that limits Monitor’s powers, but in reality would lead to greater
scope for the politicisation of health service decisions.
The Bill removes Monitor’s responsibilities in terms of competition and, therefore, its prioritisation
as a policy goal. The Bill instead puts decision-making powers back in the hands of the Secretary of
State. While this is better than the present situation, the safeguards rest purely upon a sympathetic
Secretary of State. Although we agree with the Bill’s policy intention to limit competition, further
amendments are required to fully realise that intention.
The NHS and national and international agreements
The provisions in the Bill seek to address concerns about the impact of the Transatlantic Trade and Investment
Partnership (TTIP) on the NHS.5
The BMA shares concerns that TTIP could tip the balance of power further towards private corporations and
away from the public sector. Whilst receiving commitments that ‘the further liberalisation of the procurement
of health services is not a focus of these negotiations’, the BMA has concerns that TTIP threatens the NHS’s
ability to provide high quality healthcare to all, regardless of wealth, by:
• Facilitating the further commercialisation of the NHS via the inclusion of health services within the
agreement’s scope
• Permitting proposed investor protection (IP) and investor to state dispute settlement (ISDS) mechanisms
to be used to attack public services. For example, providing companies with the legal means – backed
by the threat of compensatory payments - to prevent the reversal of the outsourcing of NHS resources
to the private sector
We do not believe that the proposed text of the treaty6 provides sufficient safeguards for the protection of
healthcare services and remain concerned at the failure to include legal provisions to prevent corporations from
challenging public policy decisions, for example preventing US corporate interests from contesting any future
UK Government legislation which sought to repeal the Health and Social Care Act 2012.
The European Commission launched a public consultation7 on the proposed IP/ISDS mechanisms in March 2014
and has suspended negotiations on this part of the TTIP until the responses have been analysed - due in
November 2014. We are hopeful that our concerns will be taken on board during this process but, as the
Treaty stands, we have serious concerns about how TTIP will facilitate the further commercialisation of the
NHS.
It is positive that the Bill contains provisions to limit procurement or competition obligations being
imposed on the NHS should the Transatlantic Trade and Investment Partnership be ratified.
November 2014
6
For further information, please contact:
Stephanie Creighton, Senior Public Affairs Advisor
T: 0207 383 6681 M: 07824 550 771 | E: | [email protected]
BMA House | Tavistock Square | London | WC1H 9JP |
Notes and references
1 The Health and Social Care Act 2012 establishes health and wellbeing boards as a forum where key leaders from the health and care system work
together to improve the health and wellbeing of their local population.
2 A BMA survey published in May this year found that only one in twenty doctors (5 per cent) believe the Health and Social Care Act 2012 has improved
the quality of services for patients. While half of doctors (51 per cent) surveyed reported a change in how they plan and deliver care following the
introduction of the Act, almost a third of this group (28 per cent) believe it was having a negative impact on patient care, and almost three quarters
(73.6 per cent) believed the Act - which increases the role of private providers in the NHS through the roll-out of competitive tendering for services - had
led to a fragmentation of care. More information available at: http://bma.org.uk/working-for-change/hsca
3 House of Lords Select Committee on the Constitution, 18th Report of Session 2010-12, Health and Social Care Bill, 30 September 2011
4 The CMA now has jurisdiction to review mergers between FTs and NHS trusts, leaving Monitor responsible for providing advice to the NHS Trust
Development Authority on mergers between NHS trusts.
5 The Transatlantic Trade and Investment Partnership (TTIP) is a trade agreement that is presently being negotiated between the European Union and the
United States. More information available at: http://ec.europa.eu/trade/policy/in-focus/ttip/about-ttip/
6 As at July 2014.
7 European Commission (2014) Online public consultation on investment protection and investor-to-state dispute settlement (ISDS) in the Transatlantic
Trade and Investment Partnership Agreement (TTIP). Accessed 22 October 2014. http://trade.ec.europa.eu/consultations/index.cfm?consul_id=179
National Health Service (Amended Duties and Powers) Bill
House of Commons
Second Reading
21 November 2014
The British Medical Association (BMA) is the voice of doctors and medical students in the UK. We are
an apolitical professional association and independent trade union, representing doctors and
medical students from all branches of medicine across the UK and supporting them to deliver the
highest standards of patient care. We have a membership of over 153,000, which continues to grow
every year.
The BMA’s position
The National Health Service (Amended Duties and Powers) Bill primarily seeks to make changes to existing
legislation, most notably the Health and Social Care Act 2012 and the National Health Service Act 2006, with
an impact on the following areas:
• Duties of the Secretary of State
• Financial powers of NHS Foundation Trusts and NHS Trusts
• Competition and procurement in the health service
• The NHS and national or international agreements
We believe that the Bill is a step in the right direction to address concerns about the current lack of ministerial
accountability and responsibility for the NHS in England, as well as ongoing concerns about the over-emphasis
on market forces and use of competition in the NHS in recent years. The BMA strongly believes, for example,
that integration must be given clear prominence over competition, not least because a rise in the number of
health providers increases the risk of fragmentation. We also argue that the NHS should always be the
preferred provider of patient care; but where alternative providers are already delivering services to patients,
commissioners must ensure that these services are integrated with GP practices and hospitals.
However, this Bill gives potentially wide powers to the Secretary of State in a number of areas. We are clear
that care must be taken to ensure that the legislation does not risk introducing even more political interference
in the day-to-day running of the NHS. The operational autonomy granted to the NHS in the Health and Social
Care Act 2012 was, in many respects, a move which the BMA welcomed. Furthermore, it is unclear how the
Bill relates to a number of important bodies and structures created by the Health and Social Care Act, such as
health and wellbeing boards.1
Finally, healthcare professionals would oppose further re-organisation of the health service – we would be
extremely concerned if the legislation were a precursor for further top-down structural change.
2
Key points
• The Health and Social Care Act 2012 came into force fully on 1 April 2013, introducing a
number of new structures and arrangements for the NHS in England. It is a complex and farreaching
piece of legislation, reflecting the wide-ranging nature of the Government’s
programme of reform for the NHS in England. There are ongoing concerns that it has
introduced serious operational challenges.
• The National Health Service (Amended Duties and Powers) Bill is a step in the right direction
to help address concerns about lack of ministerial accountability and responsibility for the
NHS, as well as ongoing concerns about the over-emphasis on market forces and use of
competition in the NHS in recent years.
• The Bill’s focus on reinstating and enhancing the Secretary of State’s duties to promote and
to provide are helpful measures to secure confidence in the Secretary of State’s ultimate
responsibility and accountability for the NHS. However, care must be taken to ensure that
the legislation does not risk bringing in inappropriate political interference in the day-to-day
running of the NHS.
• The Secretary of State’s powers in relation to procurement and contracts are too widely
drafted. These are not sufficient safeguards if a Secretary of State wants to continue to
promote competition. However, if statutory checks and balances were introduced, these
provisions could provide a welcome limitation on the use of competition and promote
integrated services.
• The Bill gives wide discretion to the Secretary of State over determining the level of income
that Foundation Trusts and NHS Trusts can generate from private patients. However,
appropriate safeguards are included.
• The Bill removes Monitor’s responsibilities in terms of competition and, therefore, its
prioritisation as a policy goal. The Bill instead puts decision-making powers back in the hands
of the Secretary of State. While this is better than the present situation, the safeguards rest
purely upon a sympathetic Secretary of State. Although we agree with the Bill’s policy
intention to limit competition, further amendments are required to fully realise this intention.
• It is positive that the Bill contains provisions to limit procurement or competition obligations
being imposed on the NHS should the Transatlantic Trade and Investment Partnership be
ratified.
• Healthcare professionals would oppose further, major re-organisation of the health service –
we would be concerned if the legislation were a precursor for further, top-down structural
change.
Background
The Health and Social Care Act 2012 came into force fully on 1 April 2013, introducing a number of new
structures and arrangements for the NHS in England. It is a complex and far-reaching piece of legislation,
reflecting the wide-ranging nature of the Government’s programme of reform for the NHS in England.
Despite the Government’s assurances to the contrary, the Act was the catalyst for massive, disruptive, topdown
reform of the NHS. These changes have been set against a background of an increasingly tough
financial climate for the NHS at a time when the health service is seeking to achieve unprecedented levels of
3
savings. The legislation has been a major distraction, costly to implement, and has taken vital funding away
from frontline services.
The BMA is committed to the founding principles of a National Health Service delivered in a cooperative and
coordinated environment, where patients are guaranteed the most clinically-appropriate and cost-effective
care. With these key principles in mind, we have actively engaged with the Government and others to
influence the direction of policy travel presented in July 2010.
During passage of the legislation, we repeatedly stated that some potentially positive elements of the reforms –
giving clinicians greater responsibility for commissioning and shaping local health services, increasing public and
patient involvement, and putting a greater focus on improving public health – were threatened by other
aspects, particularly those that sought to increase and enforce competition. We also expressed concern about
the significant gaps in the legislation which needed to be addressed to ensure proper accountability, to prevent
unacceptable variation and to ensure appropriate national oversight.
Since passage of the Act, we have raised concerns about the impact it is having on the ground. Doctors feel
that far from improving the delivery of integrated, patient-focused care, the Act has created serious operational
challenges, undermining the ability of commissioners and providers to exercise clinical judgement fully and
operate in the best interests of their patient populations.2
Doctors continue to be worried that the Act focuses too much on competition and that there is a lack of
coherent, strategic, national leadership and a clear line of ministerial accountability.
Duties of the Secretary of State
Duties to promote and to provide
At present, the Secretary of State’s duty is ‘to promote a comprehensive health service’ and ‘to secure that
services are provided in accordance with this Act’. The pre-2012 duty (NHS Act 2006) was ‘to promote a
comprehensive health service’ and ‘to provide or secure the provision of services in accordance with this Act’.
During the parliamentary debates on the Health and Social Care Act 2012, serious concerns were voiced that
there was insufficient explicit assurance about the Secretary of State’s continuing responsibility for the NHS.3
Since the legislation has been in force, a constant source of concern has been that leadership and
accountability over the NHS is unclear.
The Bill seeks to adjust the Secretary of State’s duties as ‘to promote a comprehensive health service based on
social solidarity’. It also seeks to reinstate the Secretary of State’s duty ‘as to provision of certain services’.
These changes would allow delegation of functions and responsibilities to NHS England and Clinical
Commissioning Groups (CCGs), but would clarify that the Secretary of State retains ultimate responsibility for
the provision of a comprehensive health service, whilst also allowing the NHS England and CCGs day-to-day
operational independence. The addition of ‘based on social solidarity’ to the Secretary of State’s duty to
promote a comprehensive health service is a positive step. This helps clarify Government’s lasting responsibility
towards the NHS were there to be structural changes in the future.
The Bill’s focus on reinstating and enhancing the Secretary of State’s duties to promote and to
provide are helpful measures to secure confidence in the Secretary of State’s ultimate responsibility
and accountability for the NHS. However, this must be balanced with the need for bodies within the
NHS to have sufficient operational independence.
Procurement and contracts
The Bill’s provisions relating to procurement are loosely drafted and give the Secretary of State potentially wide
power to decide the rules. However, the Bill does state that the Secretary of State shall ‘promote the health
service as an efficient service based on mutual cooperation and social solidarity...’ which sets the tone for any
subsequent rules about procurement, presumably preventing competition from becoming the central lever.
The provisions in the Bill also give the Secretary of State free rein to decide what ‘anti-competitive or any other
behaviour...against the interests of people who use health services’ looks like. While the BMA supports the
4
fact that this would override the role of the Competition and Markets Authority (CMA)4 in the NHS, the Bill is
worded too loosely to provide sufficient assurance for the future.
The Bill makes provisions about the status of contracts in the NHS. It states that ‘any person who is aggrieved
at the award of designation [NHS contract] to a provider…may refer the matter to the Secretary of State for
determination…’ This reads as a provision that removes the role of the CMA and Monitor to investigate such
complaints, but this is loosely drafted, and again, gives discretion to the Secretary of State. This and the other
clauses relating to procurement do, however, set out to create a more favourable environment for
commissioners and providers to work together in the design and delivery of more integrated care and services,
around the needs of patients.
The Secretary of State’s powers in relation to procurement and contracts are too widely drafted.
These are not sufficient safeguards if a Secretary of State wants to continue to promote
competition. However, if statutory checks and balances were introduced, these provisions could
provide a welcome limitation on the use of competition and promote integrated services.
Private patient income
At present under the Health and Social Care Act 2012, Foundation Trusts can generate up to 49 per cent of
their income from treating private patients. During passage of the legislation, we argued that significantly
raising the amount of income Foundation Trusts can earn from other sources has the potential to act as an
incentive for them to undertake more non-NHS activity at the expense of NHS patients’ ability to access
services. We were concerned that this could lead to a two-tier health service, as Foundation Trusts invest more
resources in non-NHS facilities.
The Bill seeks to allow the Secretary of State to determine the level of income that can be generated from
private patients, and to allow an individual Foundation Trust to exceed it on a case-by-case basis, if agreed by
the Secretary of State. Once again, these are broadly defined powers in the legislation. The Bill, however, does
insert two safeguards that the BMA called for during the debates on the Act. Firstly, we argued that a
Foundation Trust treating private patients should not have an adverse impact on providing services to NHS
patients. Secondly, we stated that NHS patients should benefit from the Foundation Trust treating private
patients (i.e. private patient income should be re-invested into improving NHS services).
The Bill also allows parallel freedoms for NHS Trusts with respect to raising income from treating private
patients. At present, NHS Trusts can agree with the NHS Trust Development Authority the amount of non-NHS
income that they are able to receive, but there is no corresponding legislation.
Even though the Bill inserts safeguards to govern how NHS Foundation Trusts and NHS Trusts use these
freedoms, it is reasonable to ask why they have been extended to NHS Trusts. Were the Secretary of State to
set the cap at a high percentage, this would send the message that trusts are being encouraged to behave
more like commercial entities than NHS bodies.
The Bill gives wide discretion to the Secretary of State over determining the level of income that
Foundation Trusts and NHS Trusts can generate from private patients. However, there are useful
safeguards inserted to ensure that there is no adverse impact on NHS patients and that NHS patients
should benefit from the Foundation Trust/NHS Trust treating private patients.
Competition and procurement in the health service
During the passage of the legislation, the BMA was opposed to the expansion of Monitor’s role, especially if it
forced commissioners to promote competition between providers. The BMA believes that the Health and
Social Care Act 2012 places too much emphasis on commercialisation and competition, which threatens to
undermine the ethos of the NHS and make both integrated care and collaboration between primary and
secondary care harder to achieve. Currently, the Act treats the need to integrate services and ensure there is
competition between services and providers as equally important. The BMA strongly believes that integration
must be given prominence over competition. The equal status between integration and competition in the Act
5
has led to confusion among commissioners who may feel that their default should be to put all services out to
competitive tendering.
The Bill takes out Monitor’s reference to competition in the Health and Social Care Act 2012 e.g. sections
62(2), 62(3) and 62(10) in the Act. The Bill also takes out applicability of the Competition Act 1998 and
attempts to exempt the NHS from having to follow EU competition law.
However, the removal of 62(10) may have worrying implications as this could have an impact on the current
protection on the proportion of services provided by the private and public sectors. At the moment, Monitor
must not intentionally carry out its functions in order to change this, a move the BMA welcomed. The Bill
removes this protection.
The Bill also transfers Monitor’s functions regarding approving hospital mergers and acquisitions to the
Secretary of State. This is another mechanism that limits Monitor’s powers, but in reality would lead to greater
scope for the politicisation of health service decisions.
The Bill removes Monitor’s responsibilities in terms of competition and, therefore, its prioritisation
as a policy goal. The Bill instead puts decision-making powers back in the hands of the Secretary of
State. While this is better than the present situation, the safeguards rest purely upon a sympathetic
Secretary of State. Although we agree with the Bill’s policy intention to limit competition, further
amendments are required to fully realise that intention.
The NHS and national and international agreements
The provisions in the Bill seek to address concerns about the impact of the Transatlantic Trade and Investment
Partnership (TTIP) on the NHS.5
The BMA shares concerns that TTIP could tip the balance of power further towards private corporations and
away from the public sector. Whilst receiving commitments that ‘the further liberalisation of the procurement
of health services is not a focus of these negotiations’, the BMA has concerns that TTIP threatens the NHS’s
ability to provide high quality healthcare to all, regardless of wealth, by:
• Facilitating the further commercialisation of the NHS via the inclusion of health services within the
agreement’s scope
• Permitting proposed investor protection (IP) and investor to state dispute settlement (ISDS) mechanisms
to be used to attack public services. For example, providing companies with the legal means – backed
by the threat of compensatory payments - to prevent the reversal of the outsourcing of NHS resources
to the private sector
We do not believe that the proposed text of the treaty6 provides sufficient safeguards for the protection of
healthcare services and remain concerned at the failure to include legal provisions to prevent corporations from
challenging public policy decisions, for example preventing US corporate interests from contesting any future
UK Government legislation which sought to repeal the Health and Social Care Act 2012.
The European Commission launched a public consultation7 on the proposed IP/ISDS mechanisms in March 2014
and has suspended negotiations on this part of the TTIP until the responses have been analysed - due in
November 2014. We are hopeful that our concerns will be taken on board during this process but, as the
Treaty stands, we have serious concerns about how TTIP will facilitate the further commercialisation of the
NHS.
It is positive that the Bill contains provisions to limit procurement or competition obligations being
imposed on the NHS should the Transatlantic Trade and Investment Partnership be ratified.
November 2014
6
For further information, please contact:
Stephanie Creighton, Senior Public Affairs Advisor
T: 0207 383 6681 M: 07824 550 771 | E: | [email protected]
BMA House | Tavistock Square | London | WC1H 9JP |
Notes and references
1 The Health and Social Care Act 2012 establishes health and wellbeing boards as a forum where key leaders from the health and care system work
together to improve the health and wellbeing of their local population.
2 A BMA survey published in May this year found that only one in twenty doctors (5 per cent) believe the Health and Social Care Act 2012 has improved
the quality of services for patients. While half of doctors (51 per cent) surveyed reported a change in how they plan and deliver care following the
introduction of the Act, almost a third of this group (28 per cent) believe it was having a negative impact on patient care, and almost three quarters
(73.6 per cent) believed the Act - which increases the role of private providers in the NHS through the roll-out of competitive tendering for services - had
led to a fragmentation of care. More information available at: http://bma.org.uk/working-for-change/hsca
3 House of Lords Select Committee on the Constitution, 18th Report of Session 2010-12, Health and Social Care Bill, 30 September 2011
4 The CMA now has jurisdiction to review mergers between FTs and NHS trusts, leaving Monitor responsible for providing advice to the NHS Trust
Development Authority on mergers between NHS trusts.
5 The Transatlantic Trade and Investment Partnership (TTIP) is a trade agreement that is presently being negotiated between the European Union and the
United States. More information available at: http://ec.europa.eu/trade/policy/in-focus/ttip/about-ttip/
6 As at July 2014.
7 European Commission (2014) Online public consultation on investment protection and investor-to-state dispute settlement (ISDS) in the Transatlantic
Trade and Investment Partnership Agreement (TTIP). Accessed 22 October 2014. http://trade.ec.europa.eu/consultations/index.cfm?consul_id=179
