Read NHS for Sale: Myths, Lies & Deception Online
Authors: Jacky Davis,John Lister,David Wrigley
Despite reassurances to the contrary from politicians, the coalition has effectively frozen NHS funding since 2010, leading to severe financial pressures on the whole service. Primary care has had to bear more than its share of the burden. Yet the share of NHS budget allocated to primary care has been reduced year by year,
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while GPs are laden with greater responsibilities and are now increasingly faced with inspection of the work they do.
Funding of GP services is controlled nationally by NHS England and its ‘local area teams’. However it is up to CCGs to find ways of saving money by cutting back on services. So far they have largely failed to come up with any proposals that might be acceptable to their local population, while campaigners in many areas are quite rightly watching CCGs like hawks for any sign of cuts that will damage patients. Many of these schemes also have the effect of dumping additional responsibility and work onto primary care and GPs. Often these plans include closing local A&E departments and/or whole hospitals (e.g. in north-west London). But, even then, when they are planning important changes, CCGs often do not bother to consult with local GPs.
One common way in which CCGs are seeking to reduce spending is to cut back on the number of patients that GPs refer to hospitals. Each visit to an outpatient department can cost up to £150 per patient and with investigations charged on
top of this, the bill to the CCG soon adds up. Research by the
BMJ
in 2013
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showed CCGs began implementing restrictions on referrals to secondary care soon after they came into existence in April 2013, at a time when budgets were being squeezed centrally and the so-called ‘Nicholson challenge’
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to generate £20bn savings in the five years to 2015 had to be pursued at all costs.
Sometimes the restrictions on referrals could be defended (such as some for tattoo removal or cosmetic surgery) but it was apparent that in some areas many procedures that might benefit patients were also being rationed or simply made unavailable on the NHS. Ever inventive, CCGs – following the recommendations of the 2009 McKinsey report
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– attempted to justify rationing by labelling them ‘procedures of limited clinical value’. These included procedures such as surgery for Dupuytren’s contracture (a disabling hand condition) and for various types of hernia as well as joint replacements. The Royal College of Surgeons
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argued that dealing with these problems at an early stage would prevent complications later on but the demands of the balance sheet by and large overrode clinical considerations.
Individual GPs are able to appeal to a local panel if they feel their patient should receive treatment that is excluded from their CCG’s list of approved procedures. However this can lead to some difficult dilemmas. It is not unknown for a GP, acting on behalf of a patient, to support an appeal against a policy that he or she has signed up to, as a member of a CCG.
If some GPs may ultimately benefit from CCGs ‘drawing a line in the sand’ when facing difficult decisions about restricting treatments, many others in the profession may be concerned that GPs are being set up to take the blame for
rationing care. Either way, the burden was to be borne by the patient denied treatment who was faced then with the choice between going private or going without.
CCGs purchase everything except some specialist care and primary care itself and thus decide where NHS funds are spent in the local health economy. This role seems set to expand, since NHS England is now pressing for CCGs to take over responsibility for ‘co-commissioning’ primary care,
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as well as awarding contracts for certain initiatives and services needed in primary care – such as minor surgery services or evening and weekend GP services (‘out of hours’ services). There has also recently been a move to make them responsible for more of the ‘specialist services’ such as renal dialysis, although whether the funding will follow is unclear.
They are already responsible for commissioning most acute services – allocating the funds needed to commission a mix of services from the local hospital, for example. These contracts can be sizeable and as we will see many GPs have a financial stake in the companies bidding for them. Conflicts of interest arise when the GPs on commissioning groups might benefit financially from the awarding of such contracts.
This problem was predicted and predictable. Right from the outset, when CCGs were suggested by Lansley, concerns arose over possible conflicts of interest for GPs on CCG governing bodies. It was thought that these could be avoided if any GPs with a direct conflict of interest excused themselves from the discussion when contracts were awarded. This has led to situations where the majority of GPs on a CCG have been unable to vote on awarding a contract, highlighting the ethical dilemmas of ‘GP commissioning’. It also raises the
question of how reasonable it is to expect decisions to be made without bias when the majority of those responsible for awarding a contract stand to benefit from it financially, even if they have to leave the room for the decision. In Bedfordshire, for example, the CCG awarded a controversial contract for Musculoskeletal (MSK) services to a privately-led consortium including a company owned by almost half the GP practices in Bedfordshire. It got around the problem of brazen conflict of interest by claiming that the decision had been taken by consensus, without a vote.
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(see
Chapter 8
)
A conflict of interest occurs, for example, in Blackpool CCG, where five out of the nine GP members of its governing body have an interest in Fylde Coast Medical Services – the private company that runs the GP out of hours (OOH) service,
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and five have an interest in Virgin Care. Out of hours services are organised and put out to tender by CCGs, so in Blackpool a majority of GPs will have to leave the meeting during any debate or vote on contracts for OOH care. Of the eighteen members on the governing body of this CCG nine are GPs. This doesn’t give a majority for the ‘GP led organisation’ that Lansley championed. In many other CCGs the GPs are in a tiny minority on the governing body, with some running with as few as two or three GPs.
Up against the ramshackle CCG Boards, with part-time GP board members often having varying conflicts of interest, the private sector has organised itself to take best advantage of the situation. Virgin Care Ltd was formed in 2010, marking a re-entry of Richard Branson’s company into an NHS market they had previously abandoned. Virgin acquired a majority stake in Assura Medical, which had begun under New Labour as a property company investing in GP premises, but which subsequently moved into primary care.
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In October
2012, with the HSC Bill six months from implementation, the savvy Virgin Care took over 100 per cent ownership of Assura. But fearing adverse publicity over their joint ventures with GP surgeries, Virgin decided to sever its partnership arrangements and run NHS services themselves.
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Virgin Care were involved in 343 GP practices running them as 50:50 partnerships; but when the new CCGs were formed 289 GPs divested themselves of their interests, to give them a free hand as commissioners. The last thing Virgin wanted was for local GPs to be criticised in the press, thus making them nervous about the joint work they do with Virgin. Severing the partnerships and establishing sole control of the services gave Virgin a free run to bid for services without needing to worry about conflicts of interest. Virgin continues to run GP surgeries directly as well as many NHS contracts across England. In the usual management speak they justified their decision to ensure ‘more consistency of governance and leadership, and efficient use of management resources’.
The way in which Virgin maximises profits in primary care by cutting costs, often by employing fewer GPs, was highlighted in 2013 in a feature article in
Red Pepper
magazine, which pointed to the example of the King’s Heath practice in Northampton, taken over by Virgin in October 2010. There, three GPs had been reduced to one, and patients found they were waiting three weeks for an appointment rather than the previous three days. At one point the service was delivered by locums for a five month spell while the sole GP was on leave, and the promised ‘extended surgery opening hours’ meant the premises were open but with no clinical staff present.
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During the passage of the HSC Bill Lansley and his colleagues repeatedly reassured GPs that they would be able to choose how to spend the allocated budget. Lansley promised specifically that GPs would not have to put all services out to tender.
You will … be able to determine where integrated services are required and commission them accordingly. You will be able to work with existing providers of health and care services to deliver better results for patients. Or you will be able to commission new services to address weaknesses in current levels of provision.
I know many of you may have read that you will be forced to fragment services, or to put services out to tender. This is absolutely not the case. It is a fundamental principle of the Bill that you as commissioners, not the Secretary of State and not regulators, should decide when and how competition should be used to serve your patients’ interests. The healthcare regulator, Monitor, would not have the power to force you to put services out to competition.
Andrew Lansley,
Secretary of State for Health, letter to all GPs,
16 February 2012
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Of course, we now know that Lansley’s promise that GPs would decide whether to tender services has proved to be yet another lie. The promise was brushed aside by the introduction of the regulations governing the implementation of Section 75 of the Act, passed after heated debate in both houses of parliament in the spring of 2013, just before the Act
took effect. As a result CCGs have to put any services due for contractual renewal out to formal tender in the market place, unless the CCG can prove there is only one provider capable of delivering the service. Since it is virtually impossible to prove this to everyone’s satisfaction, most CCGs believe that almost all services now have to go through the lengthy, tedious, expensive and bureaucratic formal NHS tender process.
What’s more, CCGs are fearful of challenges from the private sector if contracts are not put out to tender, challenges which could involve considerable legal costs which CCGs can scarcely afford. An example of such a challenge to the NHS by a private company came in Blackpool in 2013. The local private hospital is owned by Spire,
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who accused the local CCG of ‘anti-competitive’ behaviour when it failed to offer patients the choice of Spire’s private hospital as well as the local foundation trust. Spire was aggrieved that a ‘block contract’ seemed to direct patients towards the NHS hospital.
It took Monitor a full year to investigate the accusation (though surprisingly they never spoke to any patients, GPs or practice managers in that time).
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The lengthy and costly investigation eventually found that the CCG had not acted in contravention of the section 75 rules but insisted that in future the CCG should ‘promote choice’ more openly when patients were offered their first outpatient appointment.
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Time, energy and public funds had been wasted to satisfy the demands of the English healthcare market. If Spire had not been allowed to make the accusation, more NHS resources could have been spent on patient care rather than seeking to increase Spire’s £100m annual income.
Up to now the only CCG to have tested out Lansley’s promise that they would not have to open up a tender for services has been the country’s largest: North, East and West Devon. Its decisions have not been without controversy (primarily because of their award of part of a contract to a social enterprise) but there has been no wasteful and costly tendering process.
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With some CCGs already admitting their reluctance to act against failing contractors for fear of legal action,
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it remains to be seen if any others will have the courage to stand up in defence of services rather than cower before the calls for competition and the threat of legal challenges from the private sector.
Lansley promised that GPs would make decisions about local services, along with local people, but the example of Lewisham – discussed in
Chapter 6
– proved him to be a liar yet again. Local GPs and the CCG completely opposed the proposed downgrading of the hospital, but despite all Lansley’s fine words of reassurance, professional views were ignored (along with the views of tens of thousands of locals who took to the streets in protest). Lansley’s successor, Jeremy Hunt, attempted to force the changes through, and only High Court legal action stopped the proposed closures and downgrade going ahead. The whole episode showed how little real influence CCGs have when their decisions are unwelcome to the government, and exposed the myth that GPs would be in control as a result of the HSC Act.
Having lost the battle in the High Court Jeremy Hunt then pushed through a law that would prevent future ‘Lewisham defeats’. This was to be done by inserting a new Clause 118 (since renumbered 119) into the otherwise unrelated Care
Bill. This is now better known as the ‘hospital closure’ clause. It gave a Trust Special Administrator powers to impose arbitrary closures anywhere in the general vicinity of what was branded a ‘failing’ hospital trust. It meant no area of the country could feel safe from the threat of a possible closure of local services.
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As the journalist Benedict Cooper wrote in the
New Statesman,
Hunt ‘presses ahead Thatcher-like, wilfully ignorant, skipping around every tiresome obstacle, using new tools like Clause 118 to take more power and control away from the people who have paid for the NHS and who need it the most’.
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Hunt’s new piece of legislation means that GPs (and CCGs) are most certainly not in control when it comes to imposing controversial closures; all power would be in the hands of a Special Administrator, appointed by the Secretary of State.