More Selective "Research" from the Government

Thanks to Dave Williams at HSJ for tweeting about Francis Maude's claims about patient choice of GPs. This post is not about that claim, but about another claim in the document that Maude cited.

Today Francis Maude will claim that thousands of patients have moved GP practice as a result of performance data published. When Williams asked the Cabinet Office to clarify, the Department of Health cited a document called Making Open Data Real: A Public Consultation in particular section A1.16:

A1.16 Seminal research in the early 1990s showed the impact of public reporting of mortality rates in New York; those physicians and hospitals publishing better health outcomes subsequently saw their market share grow.[43] In the UK, NHS Barnsley has shown the effect of simple kite marking information on choice. Fourteen GP practices, serving 40% of the local population, were accredited with Barnsley's own "Green Tick" professional standards kite mark. Between the launch of the scheme in 2008 and April 2011, 4,500 patients have so far chosen to switch to one "Green Tick" practices. On finding their GP practice had been validated, one patient said: "I have been a patient [here] for many years but seeing that the practice has received the award assures me that I am in the right place to receive the care I need when I need it."

The reference [43] is to work carried out by the RAND Corporation published by the Health Foundation. This report compares the results of papers published since 2000 on the effects of publishing performance data on improvements of hospitals. The NYC example interested me:

research in the early 1990s showed the impact of public reporting of mortality rates in New York; those physicians and hospitals publishing better health outcomes subsequently saw their market share grow

This seems to contradict the statement that Prof Gwyn Bevan made to the Health Select Committee in November 2010:

There are systematic reviews in the United States for putting information out on a hospital's performance. They consistently find that people do not switch from poor to high-performing hospitals. One of the paradoxes about the New York study where they issued data on risk-adjusted mortality rates for cardiac surgery is that patients continued to go to hospitals with high mortality rates. But by publishing the information, the hospitals got better. The most famous case is Bill Clinton, who had his quadruple bypass in a hospital that the information said at the time was one of the two worst outliers in the whole of New York State he could have gone to.

The Making Open Data Real document says that physicians and hospitals that published the better data saw their market share increased, so if Prof Bevan is right that would imply that there must have been a lot more patients (ie the overall number of patients increased) since those with worst results saw no change in the number of patients.

To find out who is right I read the Health Foundation document. On pp12-13 it shows the effect of publishing mortality data on patient choice of hospitals and surgeons.

On the New York State Cardiac Surgery Reporting System it says published reports "provide conflicting results". Here are summaries of those reports. First for hospitals:

Mukamel and Mushlin (1998)	"providers with better outcomes had higher growth rates in market share"
Hannan et al (1994)	"did not find a change in hospital surgical volume during roughly the same time period"
Chassin (2002)	compared market share of hospitals that were identified as statistical outliers in the year before they were named as outliers compared to the year after (1989 to 1995). Changes were small; fewer than half the hospitals saw an increased market share for high performance or decreased share for poor performance.
Jha and Epstein (2006)	"found no evidence" that the data "had a meaningful impact on hospitals' or surgeons' market share"
Cutler et al (2004)	reported an initial decline after being designated as a 'poor-performer' but "this decline was not statistically significant one year after the initial report". They did not find a corresponding increase in volume among low-mortality hospitals.

As you can see, there is no overwhelming endorsement that publishing mortality data increases the number of patients using a hospital.

Now for surgeons (in the US surgeons are typically independent contractors).

Mukamel et al (2004/05)	Medicare enrolees were less likely to select a surgeon with higher mortality
Mukamel and Mushlin (1998)	suggested that physicians with better outcomes had higher growth rates in their charges
Hannan et al (1994)	did not find a change in individual providers’ volume of surgery
Hannan et al (1995)	did not find patients changed, but found that the worse surgeons stopped practising
Jha and Epstein (2006)	reported that it was more likely that surgeons performing in the bottom quartile ceased practising
Mukamel et al (2000)	said that only 20% of managed care organisations in New York indicated that the reports were a major factor in their contracting decisions. But analysis of actual contracting patterns show that mortality scores did not affect their choice of surgeon
Mukamel et al (2002)	found that only in parts of NY state did higher reported quality made it more likely that an MCO would contract a surgeon

Again, the results are mixed, and there is no clear result saying that publishing data increased the business of the better performers.

Clearly the government's selective reading of the Health Foundation report chose to use the results that agreed with their point of view and ignored the other reports.

The unacceptable is now acceptable

If you think the Health and Social Care Bill will be an NHS that is better for patients, then think again.

Sir David Nicholson, the Chief Executive of the NHS and now of the unaccountable super-quango, the NHS Commissioning Board, said last year:

"If you've got a long-term condition, you might want to think in future about different GPs and whether they're providing a full range of service for that condition." 

Reflect on what he said. What he didn’t say was "the NHS reforms will guarantee that you will get the care that you need". He is saying the exact opposite. He says that it is acceptable for CCGs not to authorise the services we need. That is an admission that Lansley is creating an incompetent and unfair system where it is the responsibility of patients to find the care they need.

It is appalling. If you have a long term condition, every GP should provide the full range of services you need. The statement from Sir David Nicholson says that you have to be a healthcare consumer and "shop around" for your care. This is simply not possible for most patients. Think about it. When you feel ill the last thing you want is to browse the options and ask for quotes as if you are getting your kitchen painted. You want to rely on the NHS to provide the services that you need and anything less is not acceptable. Sir David is saying that to him, and to the government, the unacceptable is acceptable.

NHS Reform A Goldmine for Surgeons?

Last week was a bit of a disappointment for opponents of the Health and Social Care Bill. Opposition was clearly growing as the BMA, RCN and RCM all announced all-out opposition to the Bill and it was hoped that the Royal Colleges (who are professional membership organisations) would also announce their opposition. Initially it seemed that this would be the case when a draft agreement was leaked early in the week, however, after what appears to be a huge amount of lobbying from Lansley, their opposition crumbled. Now the rather weak response from many of the colleges and faculties are to ballot members and fellows, which is simply a delaying tactic.

The most ire was generated by the Royal College of Surgeons being consistently in favour of the Bill: they didn't need a telephone call from Lansley to be prompted in offering their support. The response from many who oppose the Bill is that surgeons are the most likely to benefit personally from the new fragmented and privately provided NHS. I honestly don't know if this is the reason why the RCS refuse to oppose the Bill, but if it is, they are wrong. The Bill will not deliver a goldmine of easy pickings for surgeons.

The consensus is that two parts of the policy: the raising the Private Patient Income cap on Foundation Trusts (FTs) and the so-called Any Qualified Provider (AQP) policy will be beneficial to surgeons. The thinking is that the raising of the PPI cap will allow more private work to be carried out in NHS hospitals - presumably with surgeons acting as independent contractors earning private rates. Further, AQP is expected to bring in more private providers to do NHS work (so-called "choice") and the government expects groups of clinicians - like surgeons - to form mutuals or partnerships and offer themselves in competition to NHS hospitals. The conventional thinking is that these two policies will make surgeons very rich. I suspect that this is wildly optimistic.

It is clear that the RCS are in favour of AQP. In response to the NHS White Paper they said (January 2011):

In terms of providers, we believe a level playing field should exist, meaning all providers supporting the entire range of clinical standards of modern surgery, including education and training and making outcomes available to aid the profession and patient choice.

So basically they are licking their lips on the thought of the extra opportunities of their members to work for private providers.

I think they are wrong. To explain why, I first need to remind the reader of a home-truth. I don't particularly like to quote Mr Byrne but it is important here: there's no money left. This applies both to the public sector - the NHS - and to the private sector. Austerity is upon us and that means no one can get rich.

The major problem is that private healthcare is in dire straits and there have been a series of bad indicators over the last few weeks. In general terms, Private Medical Insurance (PMI) is still in recession. A large proportion of PMI is provided as an employer benefit and in times of recession this is an extra - and largely unnecessary - expense that will be the first to be dropped as profits are squeezed. When there is a successful NHS (as there is) I am sure that over the last year many employers have come to the conclusion that PMI is an employee benefit they cannot afford.

At the same time self-pay has slightly increased, but this is a small part of private hospital income. In addition, in general terms, the economy is tanking. This will affect self-pay as people fall back on the free-at-the-point-of-use NHS (which they have already paid for) so that they have the money to pay their mortgages. And at some point in the future the Bank of England will raise base interest rates. This is unlikely to happen before the next election since the last thing the government needs is huge numbers of repossessions just before an election and they will make it known to the "independent" Bank that it will be in non-one's interest. However, interest rates can only go up. More money spent on the mortgage means less money to pay for things that you don't need to pay for (including PMI and self-pay). Private healthcare will suffer, and so will the surgeons who rely on this income.

The Competition Commission is now looking at private healthcare and the likelihood (going on the OFT interim report from last year) is that they'll recommend a shake up which will cut costs to patients and the profits of the providers. Surgeons may find that their private practices will no longer be profitable.

Health Service Journal this week reported on the most recent Laing's Healthcare Market Review that in 2010 income by private healthcare dropped by 1.5% the first time there has been a drop in the thirty years that Laing and Buisson have been providing the report. This shows the effect of falling PMI. The report also says that a quarter of the income of private acute care providers was paid for by the NHS, illustrating how dependent the private sector is on the public purse. As the NHS seeks savings, this figure can only go down, and that will mean less for surgeons.

It is significant that Laing and Buisson say that private hospitals have "higher average costs than NHS hospitals. They typically take on patients at the lower NHS prices when they have unused capacity" and that "many independent hospitals are likely to struggle to maintain profitability at NHS tariff unless they can significantly rationalise their cost base". The cost base is, of course, mostly the money paid to surgeons.

All of this indicates that there is unlikely to be a huge shift to private hospitals through the AQP policy. private hospitals will not put themselves on the list of AQP providers if they think they cannot make a profit on the NHS tariff. The RCS may be keen on the idea of AQP, but it is looking like it is unlikely to make private providers (and hence their independent contractors, the surgeons) much money.

There is another issue. At a time when credit was cheap and plentiful everyone over borrowed, and that includes the private hospital groups. The country's largest private provider, GHG, has created a Southern Cross-like problem for itself (similar, but with some differences) by restructuring as an opco-propco with a £1.65bn debt that needs to be re-financed in the next 8 months. The next 8 months. If there is a Euro-crisis and a paralysis of the finance markets will they be able to do this? Surgeons should think twice about relying on private practice income.

The government's policy on QIPP (the £20bn "efficiency savings") seems to be more about squeezing tariff (the fixed price list providers are paid for about half of treatments) than about anything else. In April 2011the government cut tariff by 1.5%, in April 2012 they will cut it again, by "at least" 1.5%. This means a lot less money for both FTs and AQPs. If a surgeon moonlights for an AQP provider they'll find that the cut in tariff will affect their pay packet. Indeed, in the current climate surgeons will probably find an NHS salary much safer than their likelihood of making a fortune in the private sector. But even that is not guaranteed since FTs may find that they cannot afford to provide some operations.

FTs and private providers will be chasing after an ever decreasing and inadequate pot of NHS money, and they will squeeze their staff costs. Further, as the economy nose dives, there'll be less money in patients' pockets to pay for private treatment. Both of these mean that there simply isn't the money available to fill the surgeons' pockets.

Then there is another issue. The original plan for Foundation Trusts was to allow them to write their own employment contracts. Only one FT - Southend - has done this so far and they have eventually decided to go back to the national deal. The current government is very keen on local agreements and is encouraging FTs in this direction, but this could be bad for the surgeons. In a meeting that I attended recently an FT chief executive said that he wanted to change his consultant contracts to prevent them from "moonlighting". This makes sense, because if we are going to have a competitive market with AQP competing with FTs why would a chief executive want his employees working for the opposition? Surgeons beware: you may well find that soon you will be given the option of giving up your private practice or give up your NHS job. This will be a direct consequence of government policy.

When you add all of this: failing economy, failing private providers, the Competition Commission about to shake up the private healthcare market, the Byrne aphorism of no money left and cuts in tariff, the scope for anyone to making money is seriously reduced and the risks of the reforms are too high. Consultant surgeons have a very comfortable deal with the NHS at the moment, and any reform (under the Byrne aphorism) will be far less comfortable for them. It is better for them to keep the status quo, so perhaps someone could explain this to them and get them to join the opposition to the Bill?

The Real Effect of the Coalition Government on the NHS

Forget Cameron's bluster about the number of doctors and managers.

The issues about the NHS over the last year have all been about nursing. A competent government would recognise that nursing numbers are important and that we need investment in more nurses. However, we don't have a government that can be described as being competent.

The aggregated number (full time equivalent) of nursing staff in hospitals and community services was 310,793 at the time of the 2010 election; in October 2011 (the latest data) there were 307,825. The following graph shows the trend over the last 18 months.

We need more nurses, yet the government's policy is to cut their numbers.

The Pause and the Future Forum

last summer the government made the unprecedented decision to pause the passage of the Health and Social Care Bill and to "listen, reflect and improve" the Bill.

Listening? Really, did they listen at all?

I am a patient with an LTC (of 35 years), so surely my experiences of the NHS would be useful? Apparently not. The Department of Health said that if people wanted to be involved in a listening event they should contact their local SHA for details of events near them. I contacted the West Midlands SHA and they told me that there were no (yes, no) events in the area. Then I wrote to my MP (a Tory MP) and I heard nothing until after the "pause" was over. His researcher apologised for the tardy reply and said that since the pause was over so there were no events. So no one wanted to listen to me.


Then there is the Future Forum. This is usually described as being the Independent Future Forum. There are some highly qualified people on the FF, but excuse me, Sir Steve Bubb? Is he really qualified to talk about the NHS? And how were these people appointed? They were hand-picked by the Department of Health.

If I were asked to create a truly independent forum I would ask all the medical Royal Colleges and other professional organisations, the BMA, the health unions, patient groups and medical charities to nominate people they thought would be able to make a good contribution. This is not what happened. The FF was hand-picked by the government. Is it no wonder that the FF came up with recommendations that were completely accepted by the government? The government clearly chose the right people.

Big Society Volunteering

I'm not much of a volunteering type, you won't find me at the local jamboree sitting in a bath of baked beans or falling out of a plane clutching a sponsorship form. I really do think that if a service is worthwhile then it is worth state funding.

However, I am an elected FT governor. This is unpaid, and other than the statutory attendance at public meetings, I also attend other Trust meetings and take part in other Trust events. I didn't have to put myself forward for election, and I can resign at any time, so I guess all of that means that it is voluntary. So I have volunteered for something.

A couple of weeks ago I was at one of the FT meetings and after the business was over I chatted with other governors. It immediately became very apparent that the local "worthies" are a very small group. This is not a criticism of them, in fact I am rather in awe of how much they do. Some governors are involved with groups like the Rotarians, WRVS, local care charities; as well as organisations like the Local Involvement Network (LINk) and patient involvement groups at the local PCT and local councils. Without these people the local town would not have a summer carnival. Recently the local council withdrew all funds to the town's youth centre, and the manager of the centre was distraught since this sleepy rural town has no other distraction for young people. Then one of the local charity groups - run by the same "worthies" - stepped in to provide the funds.

The more I get involved with local groups the more I see the same people: these local "worthies" are the bedrock of our community. However, they are mostly elderly, white and middle class. There tends to be more women than men, but I guess that is because of the "elderly" aspect. Quite a select demographic.

The Big Society is supposed to be local people running (or influencing the provision of) local services. How can we say that there is any "localism" if most of us are not involved? I am sure that the local "worthies" genuinely and selflessly want to improve services, but the improvements will be from their perspective and there is never just one way to provide a service, other ways are just as valid.

The local LINk is being replaced by Healthwatch. I asked an FT governor who is heavily involved with LINk about the change to Healthwatch: he told me that it will be the same people doing the same things as before. I asked another governor about the Health and Wellbeing Board. His response was less optimistic, complaining of it simply being "structure" with little purpose. He also pointed out that the newly appointed Chair of the Health and Wellbeing Board was the Chair of the PCT before clustering. Yet again, the same people.

Last week, when ordering my repeat prescription through my GP's website I noticed an announcement about their new Patient Involvement Group. I signed up. The week before I had an email from my local PCT saying that they want "patient champions" to be involved with the local Clinical Commissioning Group. I put my name forward. See that? This volunteering is addictive. I wonder how long it will be before I am known as one of the local "worthies"?

Foundation Trust Constitutions

The following is the section of the National Health Service Act 2006 that outlines the constitutions of NHS Foundation Trusts. I have made amendments according to the latest version of the Health and Social Care Bill. Making these amendments is a painful task because essentially the H&SC Bill is a series of instructions telling you to go to a particular clause and either delete it, amend it, or add another clause. Since these instructions can be anywhere in the 460 pages it is difficult at any one time to know what the final amended clause will be. A sensible Bill would have simply said: "replace the existing Schedule 7 with the following version". The fact that the H&SC Bill does not do this shows that the real intent is obfuscation.

In the following I have shown deleted sections using strikethrough and I have highlighted new text. If the Bill alters something that it has already altered I have highlighted that in red. It is interesting to see what the constitution of Foundation Trusts will be after the Bill is passed. Equally interesting is the myriad changes that the Bill makes, and bear in mind that there isn't a single section marked "changes to Schedule 7", instead, these amendments are across 20 or more clauses in the Bill.

SCHEDULE 7
Constitution of public benefit corporations

Requirement for a constitution

1. (1) A public benefit corporation must have a constitution.
   
   (2) As well as any provision authorised or required to be made by this Schedule, the constitution may make further provision (other than provision as to the powers of the corporation) consistent with this Schedule.
   
2. (1) The constitution must name the corporation and, if the corporation is an NHS foundation trust, its name must include the words “NHS foundation trust”.
   
   (2) If the corporation is an NHS foundation trust, the constitution must specify its principal purpose (as to which, see section 43(1)).
   


Eligibility for membership


3. (1) The persons who may become or continue as members of a public benefit corporation are-
   
   (a) individuals who live in any area specified in the constitution as the area for a public constituency,
   (b) individuals employed by the corporation under a contract of employment and, if the constitution so provides, individuals who exercise functions for the purposes of the corporation otherwise than under a contract of employment with the corporation,
   (c) if the constitution so provides, individuals who have attended any of the corporation's hospitals as either a patient or the carer of a patient within a period specified in the constitution.
   
   (2) The constitution may specify one or more areas as areas for public constituencies, each of which must be an electoral area for the purposes of local government elections in England and Wales or an area consisting of two or more such electoral areas.
   
   (3) A person may become or continue as a member of the corporation by virtue of sub-paragraph (1)(b) only if-
   
   (a) he is employed by the corporation under a contract of employment which has no fixed term or has a fixed term of at least 12 months, or
   (b) he has been continuously employed by the corporation for at least 12 months or, where he exercises functions for the purposes of the corporation as mentioned in that sub-paragraph, he has done so continuously for such a period.
   
   (4) Chapter 1 of Part 14 of the Employment Rights Act 1996 (c. 18) applies for the purpose of determining whether an individual has been continuously employed by the corporation, or has continuously exercised functions for the purposes of the corporation, as it applies for the purposes of that Act.
   
   (5) The constitution may divide those who come within sub-paragraph (1)(b) into two or more descriptions of individuals.
   
   (6) An individual providing care in pursuance of a contract (including a contract of employment), or as a volunteer for a voluntary organisation, does not come within sub-paragraph (1)(c).
   
   (7) The constitution may divide those who come within sub-paragraph (1)(c) into three or more descriptions of individuals, one of which must comprise the carers of patients.
   
   (8) The constitution may make further provision as to the circumstances in which a person may not become or continue as a member.
   


Constituencies


4. (1) Members of a public benefit corporation are referred to as follows.
   
   (2) Those who live in an area specified in the constitution as an area for any public constituency are referred to collectively as a public constituency.
   
   (3) Those who come within paragraph 3(1)(b) are referred to collectively as the staff constituency and, if the power in paragraph 3(5) is exercised, each description of members is referred to as a class within that constituency.
   
   (4) Those who come within paragraph 3(1)(c) are referred to collectively as the patient's constituency and, if the power in paragraph 3(7) is exercised, each description of members is referred to as a class within that constituency.
   
   (5) A person who is a member of a constituency, or of a class within a constituency, may not while that membership continues be a member of any other constituency or class.
   
   (6) A person who comes within paragraph 3(1)(b) may not become or continue as a member of any constituency other than the staff constituency.
   
   
5. The constitution must require a minimum number of members of each constituency or, where there are classes within the constituency, of each class.


Becoming a member


6. (1) An individual who is eligible to become a member of a public benefit corporation may do so on an application made to the corporation.
   
   (2) The constitution may provide for any individual who is-
   
   (a) eligible to become a member of the staff constituency, and
   (b) invited by the corporation to become a member of that constituency (and, where there are classes within the constituency, a member of the appropriate class),to become a member of the corporation as a member of that constituency (and class) without an application being made, unless he informs the corporation that he does not wish to do so.
   
   (3) The constitution may provide for any individual who is—
   
   (a) eligible to become a member of the patients' constituency (otherwise than as the carer of a patient), and
   (b) invited by the corporation to become a member of a specified constituency (and where there are classes within the constituency, a member of the specified class),to become a member of the corporation as a member of that constituency (and class) without an application being made, unless he informs the corporation that he does not wish to do so.
   
   (4) The constituency and, where applicable, class to be specified—
   
   (a) if he is eligible to be a member of any public constituency, is that constituency,
   (b) otherwise, is the patients' constituency and, where applicable, the class of which he is eligible to become a member.


Board Council of Governors


7. (1) A public benefit corporation has a board council of governors.
   
   (2) Only members of the corporation and persons appointed under the following provisions may become or continue as members of the board council.
   
   (3) The members of the board council other than the appointed members must be chosen by election.
   
   (4) Members of a constituency or, where there are classes within it, members of each class may elect any of their number to be a member of the board council.
   
   
8. (1) The following may not become or continue as members of the board council of governors—
   
   (a) a person who has been adjudged bankrupt or whose estate has been sequestrated and (in either case) has not been discharged,
   (b) a person who has made a composition or arrangement with, or granted a trust deed for, his creditors and has not been discharged in respect of it,
   (c) a person who within the preceding five years has been convicted in the British Islands of any offence if a sentence of imprisonment (whether suspended or not) for a period of not less than three months (without the option of a fine) was imposed on him.
   
   (2) The constitution may make further provision as to the circumstances in which a person may not become or continue as a member of the board council.
   
   
9. (1) More than half of the members of the board council of governors must be elected by members of the corporation other than those who come within paragraph 3(1)(b).
   
   (2) At least three members of the board council must be elected by the staff constituency or, where there are classes within it, at least one member of the board council must be elected by each class and at least three members must be elected altogether.
   
   (3) At least one member of the board must be appointed by a Primary Care Trust for which the corporation provides goods or services.
   
   (4) At least one member of the board council must be appointed by one or more qualifying local authorities.
   
   (5) A qualifying local authority is a local authority for an area which includes the whole or part of an area specified in the constitution as the area for a public constituency.
   
   (6) If any of the corporation's hospitals includes a medical or dental school provided by a university, at least one member of the board council must be appointed by that university.
   
   (7) An organisation specified in the constitution as a partnership organisation may appoint a member of the board.
   (7) Any organisation specified in the constitution for the purposes of this sub-paragraph may appoint one or more members of the council (but no more than the number specified for those purposes in the constitution).
   
   
10. (1) An elected member of the board council of governors may hold office for a period of three years.
    
    (2) Such a member is eligible for re-election at the end of that period.
    
    (3) But such a member ceases to hold office if he ceases to be a member of the corporation.
    
    10A The general duties of the council of governors are—
    
    (a) to hold the non-executive directors individually and collectively to account for the performance of the board of directors, and
    (b) to represent the interests of the members
    
    10B A public benefit corporation must take steps to secure that the governors are equipped with the skills and knowledge they require in their capacity as such.
    
    10C For the purpose of obtaining information about the corporation’s performance of its functions or the directors’ performance of their duties (and deciding whether to propose a vote on the corporation’s or directors’ performance), the council of governors may require one or more of the directors to attend a meeting.
    
11. The corporation may pay travelling and other expenses to members of the board council of governors at rates decided by the corporation.
    
    
12. The constitution must provide for the chairman of the corporation or (in his absence) another person to preside at meetings of the board council of governors.
    
    
13. (1) The constitution must provide for meetings of the board council of governors to be open to members of the public.
    
    (2) But the constitution may provide for members of the public to be excluded from a meeting for special reasons.
    
    
14. (1) The constitution must make provision as to—
    
    (a) the conduct of elections for membership of the board council,
    (b) the appointment of persons to membership,
    (c) the practice and procedure of the board council,
    (d) the removal of a member from office.
    
    (2) The constitution may make further provision about the board council.


Directors


15. (1) A public benefit corporation has a board of directors.
    
    (2) The constitution must provide for all the powers of the corporation to be exercisable by the board of directors on its behalf.
    
    (3) But the constitution may provide for any of those powers to be delegated to a committee of directors or to an executive director.
    
    
16. (1) The board consists of—
    
    (a) executive directors, one of whom is the chief executive (and accounting officer) and another the finance director,
    (b) non-executive directors, one of whom is the chairman.
    
    (2) One of the executive directors must be a registered medical practitioner or a registered dentist (within the meaning of the Dentists Act 1984 (c 24)); and another must be a registered nurse or a registered midwife.
    
    (3) A person may not be appointed as an executive director if he is within paragraph 8(1).
    
    (4) A person may be appointed as a non-executive director only if—
    
    (a) he is a member of a public constituency or the patients' constituency, or
    (b) where any of the corporation's hospitals includes a medical or dental school provided by a university, he exercises functions for the purposes of that university, and he is not within paragraph 8(1).
    
    
17. (1) It is for the board council of governors at a general meeting to appoint or remove the chairman and the other non-executive directors.
    
    (2) Removal of a non-executive director under sub-paragraph (1) requires the approval of three-quarters of the members of the board council.
    
    (3) It is for the non-executive directors to appoint or remove the chief executive.
    
    (4) It is for a committee consisting of the chairman, the chief executive and the other non-executive directors to appoint or remove the executive directors.
    
    (5) The appointment of a chief executive requires the approval of the board council of governors.
    
    
18. (1) It is for the board council of governors at a general meeting to decide the remuneration and allowances, and the other terms and conditions of office, of the non-executive directors.
    
    (2) The corporation must establish a committee of non-executive directors to decide the remuneration and allowances, and the other terms and conditions of office, of the executive directors; but the constitution may make provision for those matters to be decided pending the establishment of such a committee.
    
    18A The general duty of the board of directors, and of each director individually, is to act with a view to promoting the success of the corporation so as to maximise the benefits for the members of the corporation as a whole and for the public.
    
    18B(1) The duties that a director of a public benefit corporation has by virtue of being a director include in particular—
    
    (a) a duty to avoid a situation in which the director has (or can have) a direct or indirect interest that conflicts (or possibly may conflict) with the interests of the corporation;
    (b) a duty not to accept a benefit from a third party by reason of being a director or doing (or not doing) anything in that capacity.
    
    (2) The duty referred to in sub-paragraph (1)(a) is not infringed if—
    
    (a) the situation cannot reasonably be regarded as likely to give rise to a conflict of interest, or
    (b) the matter has been authorised in accordance with the constitution.
    
    (3) The duty referred to in sub-paragraph (1)(b) is not infringed if acceptance of the benefit cannot reasonably be regarded as likely to give rise to a conflict of interest.
    
    (4) In sub-paragraph (1)(b), “third party” means a person other than—
    
    (a) the corporation, or
    (b) a person acting on its behalf.
    
    18C (1) If a director of a public benefit corporation has in any way a direct or indirect interest in a proposed transaction or arrangement with the corporation, the director must declare the nature and extent of that interest to the other directors.
    
    (2) If a declaration under this paragraph proves to be, or becomes, inaccurate or incomplete, a further declaration must be made.
    
    (3) Any declaration required by this paragraph must be made before the corporation enters into the transaction or arrangement.
    
    (4) This paragraph does not require a declaration of an interest of which the director is not aware or where the director is not aware of the transaction or arrangement in question.
    
    (5) A director need not declare an interest—
    
    (a) if it cannot reasonably be regarded as likely to give rise to a conflict of interest;
    (b) if, or to the extent that, the directors are already aware of it;
    (c) if, or to the extent that, it concerns terms of the director’s appointment that have been or are to be considered—
    (i) by a meeting of the board of directors, or
    (ii) by a committee of the directors appointed for the purpose under the constitution.
    
    18D (1) Before holding a meeting, the board of directors must send a copy of the agenda of the meeting to the council of governors.
    
    (2) As soon as practicable after holding a meeting, the board of directors must send a copy of the minutes of the meeting to the council of governors.
    
    18E(1) The constitution must provide for meetings of the board of directors to be open to members of the public.
    
    (2) But the constitution may provide for members of the public to be excluded from a meeting for special reasons.
    


Initial directors of former NHS trusts


19. (1) This paragraph applies, where the application for authorisation is made under section 33, to the exercise of the powers mentioned in paragraph 17 to appoint the initial non-executive directors and the initial chief executive.
    
    (2) The power to appoint the initial chairman of the corporation must be exercised by appointing the chairman of the NHS trust, if he wishes to be appointed.
    
    (3) The power to appoint the other initial non-executive directors of the corporation must be exercised, so far as possible, by appointing any of the non-executive directors of the NHS trust (other than the chairman) who wish to be appointed.
    
    (4) A person appointed in accordance with sub-paragraph (2) or (3) must be appointed for the unexpired period of his term of office as chairman or non-executive director of the NHS trust; but if, on any such appointment, that period is less than 12 months, he must be appointed for 12 months.
    
    (5) The power to appoint the initial chief executive of the corporation must be exercised by appointing the chief officer of the NHS trust, if he wishes to be appointed.
    
    (6)Sub-paragraphs (a) and (b) of paragraph 16(4) do not apply to the appointment of any initial non-executive director in pursuance of this paragraph; and paragraph 17(5) does not apply to the appointment of the initial chief executive of the corporation in pursuance of sub-paragraph (5).
    


Register of members etc


20. (1) A public benefit corporation must have—
    
    (a) a register of members showing, in respect of each member, the constituency to which he belongs and, where there are classes within it, the class to which he belongs,
    (b) a register of members of the board council of governors,
    (c) a register of interests of the members of the board council of governors,
    (d) a register of directors,
    (e) a register of interests of the directors.
    
    (2) The constitution may make further provision about the registers including, in particular, admission to, and removal from, the registers.
    
    
21. The constitution must make provision for dealing with conflicts of interest of members of the board council of governors and of the directors.
    
    
22. (1) A public benefit corporation must make the following documents available for inspection by members of the public free of charge at all reasonable times—
    
    (a) a copy of the current constitution,
    (b) a copy of the current authorisation,
    (c) a copy of the latest annual accounts and of any report of the auditor on them,
    (d) a copy of the latest annual report,
    (e) a copy of the latest information as to its forward planning,
    (f) a copy of any notice given under section 52.
    (g) a copy of any order made under section 65D, 65J, 65KC, 65L or 65LA,
    (h) a copy of any report laid under section 65D,
    (i) a copy of any information published under section 65D,
    (j) a copy of any draft report published under section 65F,
    (k) a copy of any statement provided under section 65F,
    (l) a copy of any notice published under section 65F, 65G, 65H, 65J, 65KA, 65KB, 65KC or 65KD,
    (m) a copy of any statement published or provided under section 65G,
    (n) a copy of any final report published under section 65I,
    (o) a copy of any statement published under section 65J or 65KC,
    (p) a copy of any information published under section 65M.
    
    (2) Any person who requests it must be provided with a copy of or extract from any of the above documents.
    
    (3) The corporation is also to make the registers mentioned in paragraph 20 available for inspection by members of the public, except in circumstances prescribed; and, so far as the registers are required to be available—
    
    (a) they must be available free of charge at all reasonable times,
    (b) a person who requests it must be provided with a copy of or extract from them.
    
    (4) If the person requesting a copy or extract under this paragraph is not a member of the corporation, the corporation may impose a reasonable charge for doing so.
    


Auditor


23. (1) A public benefit corporation must have an auditor.
    
    (2) It is for the board council of governors to appoint or remove the auditor at a general meeting of the board council.
    
    (3) An officer of the Audit Commission may be the auditor if he is appointed by the board council with the agreement of the Commission.
    
    (4) But a person may not be appointed as auditor unless he (or, in the case of a firm, each of its members) is a member of one or more of the following bodies—
    
    (a) the bodies mentioned in section 3(7)(a) to (e) of the Audit Commission Act 1998 (c. 18),
    (b) any other body of accountants established in the United Kingdom and approved by the regulator Secretary of State for the purposes of this paragraph. [the Bill says (c), which I cannot find, so I assume it means (b)]
    
    (5) Where an officer of the Audit Commission is appointed as auditor, the Commission must charge the public benefit corporation such fees for his services as will cover the full cost of providing them.
    
    (6) The corporation must establish a committee of non-executive directors as an audit committee to perform such monitoring, reviewing and other functions as are appropriate.
    
    (7) In this paragraph “the Audit Commission” means the Audit Commission for Local Authorities and the National Health Service in England and Wales.
    


Accounts


24. (1) A public benefit corporation must keep accounts in such form as the regulator may with the approval of the Treasury direct.
    
    (1) A public benefit corporation must keep proper accounts and proper records in relation to the accounts.
    
    (1A) The regulator may with the approval of the Secretary of State The Secretary of State may with the approval of the Treasury give directions to the corporation as to the content and form of its accounts.
    
    (2) The accounts must be audited by the corporation's auditor.
    
    (3) But the Comptroller and Auditor General may examine—
    
    (a) the accounts,
    (b) any the records relating to them, and
    (c) any report of the auditor on them.
    
    (4) If trustees are appointed under section 51, the Comptroller and Auditor General may also examine—
    
    (a) the accounts kept by the trustees,
    (b) any records relating to them, and
    (c) any report of an auditor on them.
    
    (5) In auditing the accounts the auditor must comply with any directions given by the regulator Secretary of State as to the standards, procedures and techniques to be adopted.
    
    
25. (1) A public benefit corporation must prepare in respect of each financial year annual accounts in such form as the regulator may with the approval of the Treasury Secretary of State the Secretary of State may with the approval of the Treasury direct.
    
    (1A) The regulator may with the approval of the Secretary of State The Secretary of State may with the approval of the Treasury direct a public benefit corporation—
    (a) to prepare accounts in respect of such period or periods as may be specified in the direction;
    (b) that any accounts prepared by it by virtue of paragraph (a) are to be audited in accordance with such requirements as may be specified in the direction.
    
    (2) In preparing its annual accounts or in preparing any accounts by virtue of sub-paragraph (1A)(a), the corporation must comply with any directions given by the regulator with the approval of the Treasury Secretary of State the Secretary of State with the approval of the Treasury as to—
    
    (a) the methods and principles according to which the accounts must be prepared,
    (b) the information to be given in content and form of the accounts.
    
    (3) In determining the form and content of the annual accounts, or of any accounts to be prepared by it by virtue of sub-paragraph (1A)(a), the regulator Secretary of State must aim to ensure that the accounts present a true and fair view.
    
    (4) The corporation must—
    
    (a) lay a copy of the annual accounts, and any report of the auditor on them, before Parliament, and
    (b) once it has done so, send copies of those documents to the regulator within such period as the regulator Secretary of State may direct.
    
    (4A) The corporation must send to the regulator within such period as the regulator Secretary of State may direct—
    
    (a) a copy of any accounts prepared by the corporation by virtue of sub-paragraph (1A)(a), and
    (b) a copy of any report of an auditor on them prepared by virtue of sub-paragraph (1A)(b).
    
    (5) The constitution must provide for the functions of the corporation under this paragraph to be delegated to the accounting officer.
    
    (6) In this paragraph and paragraph 27 “financial year” means—
    
    (a) the period beginning with the date on which the corporation is authorised under section 35 and ending with the next 31st March, and
    (b) each successive period of twelve months beginning with 1st April.
    


Annual reports and forward plans


26. (1) A public benefit corporation must prepare annual reports and send them to the regulator.
    
    (2) The reports must give—
    
    (aa) information on any occasions in the period to which the report relates on which the council of governors exercised its power under paragraph 10C,
    (ab) information on the corporation’s policy on pay and on the work of the committee established under paragraph 18(2) and such other procedures as the corporation has on pay,
    (ac) information on the remuneration of the directors and on the expenses of the governors and the directors,
    (a) information on any steps taken by the corporation to secure that (taken as a whole) the actual membership of any public constituency and (if there is one) of the patients' constituency is representative of those eligible for such membership,
    (b) any other information the regulator requires.
    
    (2A) Before imposing a requirement under sub-paragraph (2)(b) that the regulator considers is sufficiently significant to justify consultation, the regulator must consult such persons as it considers appropriate.
    
    [155(3) says that the SoS may by order decide to change (2)(b) and repeal (2A)]
    
    (3) It is for the regulator to decide—
    
    (a) the form of the reports,
    (b) when the reports must be sent to it,
    (c) the periods to which the reports are to relate.
    
    
27. (1) A public benefit corporation must give information to the regulator Secretary of State as to its forward planning in respect of each financial year.
    
    (2) The document containing the information must be prepared by the directors.
    
    (3) In preparing the document the directors must have regard to the views of the board council of governors.
    
    27A (1) A public benefit corporation must hold an annual meeting of its members.
    
    (2) The meeting must be open to members of the public.
    
    (3) At least one member of the board of directors of the corporation must attend the meeting and present the following documents to the members at the meeting—
    
    (a) the annual accounts,
    (b) any report of the auditor on them,
    (c) the annual report.
    
    (4) Where an amendment is made to the constitution in relation to the powers or duties of the council of governors of a public benefit corporation (or otherwise with respect to the role that the council has as part of the corporation)—
    
    (a) at least one member of the council of governors must attend the next meeting to be held under this paragraph and present the amendment, and
    (b) the corporation must give the members an opportunity to vote on whether they approve the amendment.
    
    (5) If more than half of the members voting approve the amendment, the amendment continues to have effect; otherwise, it ceases to have effect and the corporation must take such steps as are necessary as a result.
    


Meeting of board council of governors to consider annual accounts and reports


28. (1) The following documents must be presented to the board council of governors of a public benefit corporation at a general meeting-
    
    (a) the annual accounts,
    (b) any report of the auditor on them,
    (c) the annual report.
    
    (2) Nothing in sub-paragraph (1) prevents the council of governors from holding a general meeting more than once a year
    
    
    Combined meetings of members and governors
    
    28A A public benefit corporation may hold a meeting which combines a meeting under paragraph 27A with a meeting under paragraph 28.
    


Instruments etc


29. (1) The constitution must make provision for the authentication of the fixing of the corporation's seal.
    
    (2) A document purporting to be duly executed under the corporation's seal or to be signed on its behalf must be received in evidence and, unless the contrary is proved, taken to be so executed or signed.
    
    
    Power to make provision about voting
     
30. (1) Regulations may amend this Chapter so as to add, vary or omit provision relating to voting by members of the council of governors of a public benefit corporation that is an NHS foundation trust, by its directors or by its members.
    
    (2) The power under sub-paragraph (1) is exercisable only in relation to provision in this Chapter that was inserted, or otherwise provided for, by Part 4 of the Health and Social Care Act 2012.

The Privatisation of NHS Commissioning

(I originally wrote this article for the Drop the Bill campaign website.)

What is Commissioning?

Healthcare commissioning is often described as "purchasing healthcare" but it is far more than that. In this article I want to explain what commissioning is, and how it will change under the government's Health and Social Care Bill.

NHS commissioning is designed to ensure that we have a comprehensive and universal healthcare system. To do this commissioners must understand the needs of the population and ensure that these needs are met by the NHS. Commissioners need to determine demographics like the age of the population and prevalence of smoking, alcohol misuse and obesity; they need to be aware of local issues like the local industry and the implications of this on employees' health and they also need to be aware of levels of deprivation. All of this data enable commissioners to predict the healthcare needs for the population, and determine if the local healthcare providers can meet these needs.

Commissioning healthcare means that the NHS guarantee of care according to need is met: commissioners know that when a patient has a healthcare need, there is a provider with the capacity to treat them. Commissioning also helps the providers, because when commissioned – and contracted to do the work – they can plan to ensure that they have the appropriate resources (facilities and staff) to fulfil the contract. A pledge to provide a comprehensive and universal system means that everyone, regardless of medical need, gender, age, ethnicity or disability gets appropriate treatment. This means that commissioners also have a responsibility to monitor providers to ensure that there is equality of access to healthcare. Commissioners also have a responsibility to ensure that the care is high quality and value for money. All of this means that commissioning is complex and requires skilled commissioners.

Commissioning and the Coalition

In 2010 around 80% by value of NHS healthcare is commissioned by Primary Care Trusts (PCT). There are 152 PCTs in England covering, on average, about 300 thousand people each. A population of 300 thousand can be considered "local" enough to be aware of the needs of the area, but large enough to be able to commission for the majority of healthcare needs. The other 20% of NHS healthcare is more specialist commissioning – for example, organ transplants and rare cancers – where there will be too few patients within a PCT area to justify commissioning at the PCT level. In 2010, this 20% was carried out by the ten Strategic Health Authorities (SHAs) and the Department of Health.

Since the 2010 election, and without any Parliamentary approval, the government has restructured these NHS organisations. The PCTs have merged into 51 "clusters" (each covering around a million people) and the SHAs have merged from ten into four. These new organisations are only temporary because the Health and Social Care Bill has clauses that will abolish them. The Bill says that an independent super-Quango called the NHS Commissioning Board (NHSCB) will be created and will take over much of the work of the Department of Health and the SHAs. PCTs will be abolished in April 2013 and local commissioning will be carried out by statutory organisations called Clinical Commissioning Groups (CCG).

When, earlier this year, Andrew Lansley was pressed about the budgets of CCGs he admitted that they would have access to 60% of the NHS budget and not the 80% that is handled by PCTs. That is, CCGs will do three quarters of the commissioning that PCTs do now, the other quarter will be centralised and carried out by the NHSCB. Some of this is understandable: since CCGs will be made up of local GP practices they cannot commission the primary care carried out by GPs because this would present a conflict of interest. However, the NHSCB will also commission other areas of primary care: optometry, dentistry, pharmacy. This is care that is currently commissioned locally by PCTs but in the future will be commissioned by the NHSCB super-Quango (possibly on a regional basis, by one of the four merged SHAs that will be subsumed by the NHSCB). This is not localism, it is centralising. A quarter of commissioning will be centralised into a remote, national organisation, taking primary care decision-making further away from the patient.

GPs "In Charge"?

Every GP practice has to be a member of a CCG, but this does not mean that GPs will be "in charge". In England there are 8,200 GP practices and 40,000 GPs (roughly five GPs per practice); there are 266 "pathfinder" CCGs, so on average there will be 31 practices or 150 GPs per CCG. Is it likely that all 31 will have a representative on the CCG board? Will the 150 GPs who work for those practices sit on the CCG governing board? The answer is a very clear: No.

For a board to be effective it will be small, and since the primary aim of a CCG will be to keep within budget there will have to be places for non-clinical directors like the finance director, a chief operations officer and a chief executive (the latter is the statutory accountable officer). The few places on the board for clinical members will hardly be representative of all the GPs in the practices part of the CCG. Some CCGs may try to solve this issue by having an additional governance council made up of practice representatives, but effectively such a council will delegate most of its powers to the governing board and rubber stamp their decisions. Such a solution will result in superfluous management at a time when the NHS has to cut management by a third. It is interesting that the number of "pathfinder" CCGs is similar to the number of PCTs in 2006 (303). The NHS was re-organised in 2006 – merging the 303 PCTs into 152 – because it was then thought that smaller primary care commissioning groups would have higher management overheads and it was hoped that the merger would cut management costs by 15%. We are moving back to the situation in 2006.

The government argues that since there are more "pathfinder" CCGs than PCTs this will mean that the decision making that CCGs do will be "closer to the patient", but a quarter of PCT commissioning will be moved to the remote NHSCB. Further, the figure of 266 CCGs is not significantly larger than the number of PCTs in 2010 and is unlikely to make services any more "local". Since the smaller CCGs will find it difficult to meet the government's new financial constraints we will see them merge with neighbouring groups over the next few years: more instability in the NHS. The "localism" argument is merely an excuse; in four or five years time what little commissioning carried out by CCGs will be no more "local" than it is now.

Will CCGs Actually Commission Care?

This raises the question of whether CCGs be able to commission services? Under the last government Practice Based Commissioning (PBC) groups were set up and some of these produced good results (Lansley frequently uses these PBC groups as examples when justifying his policy). However, the significant difference is that PBC groups could always get expertise and support from the local PCT. In the areas where PBC was successful it is significant that the PCT remained intact, and was not closed down. Since CCGs will completely replace PCTs the new commissioning groups will have to take on all the commissioning responsibilities and it is questionable as to whether they are able or in a position to commission effectively.

The re-organisation of primary care is occurring at the same time as big changes in secondary care. The government has essentially told our NHS acute hospitals that they are responsible for their own debts. Trusts are also told that they are "autonomous" so if a hospital trust's debt means it will go bankrupt, the government will accept no responsibility and will not bail it out. Some of England's NHS hospitals have large debts and are not viable as free-standing businesses, so this has resulted in a slew of mergers with the more powerful hospitals taking over the weaker, debt ridden trusts. Consequently, the competitive, market-driven healthcare system designed by Lansley will be dominated by large providers and healthcare will be purchased from these trusts by the CCGs.

Some CCGs are the same size as the PCTs that they replace, but many are much smaller. A quarter of "pathfinder" CCGs cover populations less than 100 thousand; 60% of the "pathfinders" are under 200 thousand. In a competitive system, the smaller CCGs will be at a disadvantage when negotiating contracts with the much larger and more powerful acute trusts. As a result, to be able to effectively negotiate with acute trusts, the smaller CCGs will have to share some commissioning with neighbouring groups, or buy in the expertise from the private sector. The Bill says that a CCG will not be authorised unless it can show is has made "appropriate arrangements" to fulfil its commissioning responsibilities, however, it does not say that the CCG must perform commissioning. Purchasing commissioning support from the private sector is a sensitive issue, and was highlighted by the Future Forum report in the summer of 2011. In response to this report, the government said that CCGs "will not be able to delegate their statutory responsibility for commissioning decisions to private companies or contractor". In practice, something very different is happening.

The Privatisation of Commissioning

PCTs will be abolished in April 2013, and since this was announced in August 2010 PCTs have haemorrhaged skilled commissioners, with some moving to "pathfinder" CCGs and others taking up jobs with private sector companies. This loss of commissioners prompted the government to order the clustering of PCTs, since there was a danger that individual PCTs would no longer have enough staff to carry out their duties until their abolition.

A recent draft document from the Department of Health on commissioning identifies the services that need to be performed and it introduces the term Commissioning Support Organisations (CSO) to describe the companies that will carry out this work. The document is clear that CSOs are private companies and not NHS organisations. The draft document says that commissioners in PCTs will be re-organised into CSOs and as an interim they will be "hosted" by the NHSCB (that is, the commissioners will be employed by the NHSCB). Significantly, the document says that these hosted CSOs will have to "operate on commercial lines" and that hosting will only last until 2016 when they will be expected to be "freestanding".

There is no NHS solution to commissioning; the government's decision to make PCT CSOs "freestanding" and "commecial" means that they will be privatised by 2016. The Department of Health’s draft document admits that only the larger CCGs will attempt to perform commissioning themselves and that the smaller CCGs will have to "secure support from external suppliers" – the existing private CSOs and the privatised PCT CSOs.

The Government’s plans for NHS commissioning are inconsistent and ill-thought out. The new, untried clinical commissioning groups will deliver neither more localised commissioning nor are they likely to be any more financially viable than the PCTs they replace. The smaller "pathfinder" CCGs will have to merge with other groups, resulting in instability at a time when the NHS needs more stability. Commissioning will be carried out by private companies like KPMG, UnitedHealth and McKinsey, and a collection of CSOs made up of former PCT commissioners. Since there will be no NHS solution to commissioning, it is reasonable to assume that the new private commissioners will not look to the NHS for the provision of healthcare. The result will be the eventual privatisation of all that we regard as being the NHS, leaving the NHS as solely the source of funding, and even that will eventually morph into a healthcare insurance system.

The priority of the worried sick over the worried well

Breast reconstruction after mastectomy is one issue, breast augmentation is a totally different issue. The former is repairing the effects of a clinical procedure, and the later is best described as cosmetic surgery: it is healthcare consumerism. This blog is about women who have demanded to have breast augmentation.

The NHS is care according to clinical need and is not healthcare consumerism.

Should the NHS remove the substandard PIP implants? Go back to the basic principle I mentioned above: care according to clinical need. Is there a clinical need to remove the implant? If it has ruptured then yes, there is a clinical need. However, the French study implies that there is a 3% chance of rupture, so that means there is a very good chance that the implants will not rupture and there is no immediate need for intervention. Since the implant was inserted through healthcare consumerism, the woman should use her consumer rights and demand redress from her surgeon. That is, return to the cosmetic surgery company assert her consumer rights and demand that the surgeon addresses the issue. The implant was not fit for purpose, she had a contract with the surgeon who provided the implants, and her consumer rights are that he addresses the issue and replaces the implant with an implant that was fit for purpose.

There is an issue of the psychological effects on a woman who has these implants. Should the NHS treat that? Of course it should: mental health is a vital part of the work that the NHS does. This is care according to clinical need, the mental health needs of the woman with PIP implants. The NHS has a range of treatments for anxiety and the most easily available is to seek the advice and re-assurance of her GP.

To anyone saying that we should pander to the demands of the worried well who have PIP implants, I would ask them why those women should be a priority over the worried sick, the women who are right now being denied hip replacements because under the Croydon List they are deemed to be in not enough pain to justify the NHS paying for the operation.

If Lansley caves into the demand that the NHS removes all PIP implants then this will be the death of the NHS ethos of care according to clinical need. He will have accepted that the NHS is a demand-based system, like the healthcare system in the United States.

Duck smoking ban

One suggestion is that setting the private patient income cap (PPI) at 49% will mean that NHS hospitals will have the majority of their income from the NHS and hence this will magically protect them from EU Competition Law. I am not a lawyer, but if it was that easy to protect the NHS from the ravages of EU competition lawsuits why wasn't a high PPI set before, for this very reason? If Baroness Williams thinks this is a solution then I think she is very naive or deluded.

As to setting a cap at 49% to protect against a two tier system, I think the figure is daft. Putting the cap at 49% is a bit like legislating to ban ducks smoking: sure, it protects their health, but seriously, is it ever likely to happen?

Take a look at the current PPI caps. Most trusts have caps of 1% or less, which means that the percentage of their income from private sources in 2003 was at this level. For many trusts the private income is from services, not actual in-the-flesh private patients. There are a few notable exceptions, like Moorfields who have a private hospital in Dubai, and these few will be affected by the 49% cap, but the majority of trusts will not be affected. As I have mentioned before: where are all of these private patients going to come from? But hey, why do something effective when you can stop ducks smoking?

My opinion about EU competition law is that no healthcare company will want the expense of court action while there is a much cheaper option available. Monitor has such an option: the Competition and Cooperation Panel. This has the power to force competition (ie privatisation) in the NHS and since the panel was first created (as part of the Department of Health), their adjudications have been on the side of the private sector. I also hate the phrase "the majority of patients will be NHS" (which is the real source of Williams' nonsense figure). A single private patient jumping the NHS queue is just as bad as ten, 100 or every other (ie 49%) of patients. To see what I mean, put yourself in the position of a patient having waited patiently for an hour to see a doctor and then watching someone walking into the clinic and going straight in to see the doctor before you: it does not matter to you if that is the only private patient to get that privilege that day, it is still wrong.

My local hospital was the infirmary of the workhouse. The workhouse no longer exists of course (although the management offices are in some of their original buildings). The infirmary treated the poor from the entire community using charity donations. The creation of the NHS modernised how treatment was funded by making it sourced from general taxation. If the hospital takes on private patients we will be going backwards. Back to the days of the workhouse!

The focus so far has been on private patients, but the PPI cap is on income. One source is intellectual property. My opinion is that IP - a new technique, say - developed in one NHS trust should be shared with all of the NHS. Raising the PPI cap means that trusts will start to look at their innovations as revenue generating rather than for the benefits for patients. They will charge other trusts to use their new technique. This is abhorrent and against the ethos of the NHS. I think it will retrict the spread of innovation rather than promote it.

However, the reform of the private patient income cap is far more nuanced. Take a look at Great Ormond Street. Their income from private patients was £25m out of a total income of £270m in 2007 (the best figures I can find). This is 9% and is an increase on the 6% that it was in 2003 (the source of the PPI cap). GOSH realised that this would stop them from becoming an FT so they created a charity to swallow up this private work. But look at where this private income came from - it was mostly poor, sick kids from foreign countries and the private income was charity donations. Can we, as progresssives, argue against treating sick, poor, needy kids from abroad? What happens in the future when a child pushes the income over the 49% (or indeed, the current PPI cap?), do we stand at the airport and tell the staff to put the child back on the plane? Has Baroness Williams come up with a solution to this difficult issue? No. And I bet she is not even aware of it.

The 49% is a nonsense figure (as was the actual PPI cap anyway, but that is another argument). It is avoiding the real issue which is that NHS hospitals are NHS hospitals because they treat NHS patients.

We need to have a cast iron rule of NHS hospitals for NHS patients so that no NHS patient can ever feel second in the queue to a private patient. We need a detailed set of rules about how NHS intellectual property is handled, to make sure that the whole NHS benefits. We need rules about how charity cases (like GOSH patients) fit in. We need rules about how NHS trusts can provide services (like pathology) to the private sector in a way that benefits the NHS (perhaps a quid pro quo approach - requiring the private hospitals to do community healthcare preventative work, or a requirement to provide capacity when local waiting lists get high). Does anyone think that any of this is covered by a simple pronouncement of a PPI cap of 49%?

The PPI cap needs reforming, but removing it altogether, or raising it to 49% will cause more problems than it will solve.

UPDATE:
HSJ report that expert Sharon Lamb (a commercial partner at health law firm Capstick), said it was "unlikely that most FTs will come up against that limit in the short to medium term, based on the current volumes of private patient income that they earn" and that David Worskett (director of the NHS Partners Network) said: "I think it’s almost entirely symbolic. It will make virtually no difference… to the decisions trusts take." Confirming that yet again, the Lib Dems are producing completely pointless policies.