Save Our NHS – 38 Degrees legal findings

Campaign group 38 Degrees has paid for legal advice on the Health and Social Care bill, which goes to the house of commons for its third and final reading on September 6th & 7th.

The legal findings underline what campaign groups have said since the bill was first revealed, and which haven’t changed over the consultation period, which is that these reforms open up the NHS to wholesale privatisation, begin the removal of universal health care provision and pave the way towards the creation of a US style healthcare system – a system that has been shown in two recent studies to be worse than the NHS (Commonwealth Fund report: US Ranks last out of 7 countries on health system performance and Bournemouth University report in the Journal of the Royal Society of Medicine that finds the NHS to be amongst the most cost-effective systems in the world).

We do not have long to work to get this bill defeated in its vote next week. Save Our NHS West Midlands and 38 Degrees are calling for people to write to their MPs with these legal findings. You can get an easy email link and model letter from the 38 Degrees website.
We also call for people to write to the Birmingham Mail, Solihull Observer and other local papers to make sure this issue is in the news.

Locally we must focus on the two Liberal Democrat MPs – John Hemming and Lorely Burt in Yardley and Solihull constituencies. John Hemming has already indicated concerns over EU competition law, and any MP can be persauded to vote against a bill if they feel there is strong local opposition to it. The Health bill does not form part of the coalition agreement so there is no reason for them to vote for it because of the coalition agreement.

What follows is simply a repost of the 38 degrees legal findings for you to read:


In July 2011, 38 Degrees members donated to fund independent legal advice on the implications of the government’s proposals to change the NHS in England. 38 Degrees engaged Harrison Grant solicitors and the specialist barristers Stephen Cragg and Rebecca Haynes to give their legal opinions on two aspects of the Health and Social Care Bill: The removal of Secretary of State for Health’s Duty to provide or secure provision of NHS services and the impact of competition and procurement law on the NHS.

This document summarises some key findings. The full legal opinions and executive summaries are available to download in the right-hand column.

1. Removing the Secretary of State’s Duty to Provide

What our lawyers have identified within the Health and Social Care Bill:

The bill will remove the duty of the Secretary of State to provide or secure the provision of health services which has been a common and critical feature of all previous NHS legislation since 1946. This is the means by which Parliament ensures the NHS delivers what the public want and expect. Furthermore, a “hands-off clause” will severely curtail the Secretary of State’s ability to influence the delivery of NHS care to ensure everyone receives the best healthcare possible.

What this could all mean:

No longer a National Health Service
The duty, that Parliament has given the Health Secretary, for ensuring that the NHS provides the service that people need will be lost and the NHS will from here on in simply be little more than a series of quasi-independent commissioning entities and providers, basically free to get on with the job

Loss of Accountability – The Government washes its hands of the NHS
Removing the Secretary of State’s legal duty to provide or secure provision of health services, and introducing a “hands-off clause”, significantly reduces democratic accountability for the NHS. The responsibility for securing the provision of healthcare services will lie with unelected commissioners who will only be accountable to an unelected national quango. The bill will make it impossible for the Secretary of State to direct that certain services are available and difficult for the Secretary of State to step in if these groups deliver poor healthcare to the local community. These changes would shift the main responsibility to unelected officials, representatives of private companies and GPs.

Loss of Accountability – Local representatives and health watchdogs lose their right to appeal

Because the Government is removing the Secretary of State’s duty to ensure the NHS delivers an appropriate service, appeals from locally elected council bodies and health watchdogs will no longer be decided by the Secretary of State but – if any rights of appeal survive – by a national quango.

Postcode lottery
Because of changes in the bill there is a real risk of an increase in the “postcode lottery” nature of the delivery of some NHS services. The power to choose what health services are closed or improved in a local area will be passed on to local unelected bodies with little scope for the government to intervene. This will mean patients can no longer expect the government to ensure a consistent level of healthcare regardless of where they live.

2. Opening the NHS up to competition law

What our lawyers have identified within the Health and Social Care Bill:

The Bill contains a number of measures which will increase competition within the NHS at the expense of collaboration and integration and/or make it almost inevitable that UK and EU competition law will apply as if it were a utility like gas or telecoms. This includes:

■ giving Monitor the duty to eliminate so-called “anti-competitive” behaviour
■ removing the limit on the amount of income NHS hospitals can earn from private health services
■ handing significant new procurement responsibilities to the new Clinical Commissioning Groups
■ permitting these new groups to outsource commissioning work to private companies
■ writing additional rules on competition into the law and making Monitor enforce them

What this could all mean:

Exposing the NHS to UK and EU Competition Law

Taken together, these changes increase the likelihood of NHS services being found by the courts to fall within the scope of UK and EU competition law. The likelihood of this is further increased by other government NHS policies, for example the extension, announced in July 2011, of the right of Any Qualified Provider to be given a contract to deliver health services.

Costly and complex procurement procedures
The new commissioning groups will be subject to EU procurement rules whenthey commission local health services. This is likely to be costly, given the likely larger numbers of commissioning groups as compared to PCTs now and our Counsel warns that it appears the government have not planned for this significant increase in cost. Furthermore, it is not clear that the commissioning groups have the necessary procurement expertise to deal with the complex procurement process and to avoid legal action from disgruntled private healthcare providers. This could mean that the NHS ends up spending a lot of time and money fighting legal action instead of investing in patient care. Or worse, it could mean they are reluctant to commission any services for fear of being sued.

Fertile ground for private health companies (and their lawyers)
Companies that bid unsuccessfully for NHS contracts will be able to challenge commissioning decisions in the courts. Private health providers have far more expertise and legal capacity than either public bodies or charities, and so are likely to be best placed to exploit these laws. Litigation could be time-consuming and costly for commissioning bodies.

Opening our NHS to private companies – privatisation by stealth

These plans will lead to a system geared heavily in favour of private companies. The legislation does not currently contain measures to stop:

■ private companies being contracted to provide commissioning services to consortia and therefore profiting from spending multi-million-pound health budgets
■ private companies poaching services in a way which undermines the ability of the NHS to deliver essential services like Intensive Care Units, A&E, emergency cover, teaching, training and research.


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