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.
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.