A Better NHS

There is a memorable scene in ‘Doctor in the House’ in which the surgeon, Mr Lancelott-Spratt tells a patient who is wondering what’s wrong with him, “Don’t worry my good man, you won’t understand our medical talk” 

It’s rather like the government’s attitude to the risk register …

Dear Mr Donovan,

Thank you for your correspondence of 21 and 22 November about the Information Commissioner’s recent judgment that the Department should publish its transition risk register.  I have been asked to reply.

The Department’s view is that the ruling of the Information Commissioner carries with it very significant implications, not only for the Department of Health, but also for other departments across Government.

The Department has been open about the outcomes that our modernisation proposals will deliver throughout the reform process, for example through the Impact Assessments that were originally published alongside the Health and Social Care Bill in January.  The Impact Assessments have been updated during the Bill’s passage through Parliament, most recently in September, and are available on the Department of Health’s website at www.dh.gov.uk by typing the reference number ‘16620’ into the search bar.

You may be aware that risk registers are a basic tool for the management of policy implementation.  They are working documents that inform advice relating to the entire range of areas for which Government departments are responsible, including financial risks, policy risks and sensitive commercial and contractual risks.  To enable robust risk management, the Department believes that officials must be free to record all potential risks and their mitigating actions together with an estimation of their likelihood and impact, fully, frankly and with absolute candour, in confidence that this information will not be disclosed.  The Department believes that the way in which these risks are expressed in worst-case terms would present a misleading picture and be open to misinterpretation if placed in the public domain.

The Department therefore considers that making this information publicly available at the time the requests were made would have compromised both the register’s quality and value as a basis for advice to ministers and decision making.  The Information Commissioner’s decision has caused concern in other Government departments in terms of the effects of publication on risk management in general, and the construction of risk registers in particular.

In light of this, the Department of Health has decided to appeal against the Information Commissioner’s decision in both cases.  Earl Howe made a statement to the House of Lords on 28 November that outlined the Department’s position and set out the reasons for our decision.  Earl Howe also went as far as he could in offering up the categories of risk contained in the transition risk register.  These include:

– how best to manage the Parliamentary passage of the Bill and the potential impact of Royal Assent being delayed on the transition in the NHS;
– how to manage planning so that changes happen in a co-ordinated way while maintaining financial control;
– how to ensure that the NHS takes appropriate steps during organisational change to maintain and improve quality;
– how to ensure that lines of accountability are clear in the new system and that different bodies work together effectively, including the risk of replicating what we already have;
– how to minimise disruption for staff and maintain morale during the transition;
– how best to ensure financial control during the transition, to minimise the costs of moving to a new system and to ensure that the new system delivers future efficiencies;
– how to ensure that future commissioning plans are robust and how to maximise the capability of the future NHS Commissioning Board;
– how stakeholders should be engaged in developing and implementing the reforms; and
– how to properly resource the teams responsible for implementing the changes.

It is expected that the Appeals Tribunal will consider this case in the new year.  The Bill is currently before the House of Lords to continue its Parliamentary scrutiny.

More information on the Bill can be found on the Department’s website at www.dh.gov.uk/healthandsocialcarebill.

I hope this reply is helpful.
Yours sincerely,

Paul Larkin
Customer Service Centre
Department of Health

Updates

23.02.2012 NHS Risk regiseter and FOI   “…the Information Tribunal will be focussing on that public interest issue around Section 35: Is the public interest best served in maintaining the convention of confidentiality around advice to ministers, or is it, in this case best served by going against this convention given the scale of the reforms, that the register should be released?”

15.12.2011 See this FOI request from Lord Owen about a major study on competition commissioned by Labour in 2006, on NHS Vault

Update 06.02.2012

Andrew Lansley covers up NHS report because it warns costs will ‘surge’ as a result of his bill.  Éoin Clarke blog

Dear friends,

Three things you can do now to help the campaign against the Health and Social Care Bill:

1. Lobby the Lords. Its still worth writing to the Lords who are still scrutinising and trying to amend the bill. They are doing this without access to the governments risk register and some are not at all happy about that. David Owen told one of our supporters recently that Lords are so unused to getting letters that even a dozen or so on a topic makes a big impression. The balance in the House of Lords is held by the cross bench Lords who have no party allegiance and are therefore more open to persuasion. The Conservative and Lib Dem Lords amount to 258 and the Labour Lords to 238, but there are 153 cross bench Lords. So its worth writing to them as well as the bishops I attach a list of cross bench Lib Dem Lords and Bishops  Some of these are just email addresses but if you google the email address you get the name of the Lord. I suggest you choose a Lord whose surname starts with the same initial as yours, and one or two on either side, as a way of distributing them.

For most impact:
post the letter, don’t email it. The address is House of Lords SW1A OPW.
keep it short and to the point make it personal – relate it to your work or your area in some way. Key issues could be: risk; cost; conflicts of interest; constitutional issues (see Allyson Pollock’s website for her parliamentary briefings on this issue)

Legislation can be defeated or fundamentally amended in the Lords – its happened before and could happen again. Or it could fail because it runs out of time.

2. Please sign the petition https://submissions.epetitions.direct.gov.uk/petitions/22670  Dr Kailash Chand, a GP in the north of England has started a government email petition. If it gets 100,000 it forces a debate in parliament but just s importantly it will get big publicity for the cause. The petition took off initially but this has slowed down now and we need a new wave of spreading the petition. I think it needs to be sent to people who you may not previously have thought about , to widen the circle. I am going to send it to 10 such people , including my elderly aunt who lives in another part of the country who has dozens of friends who will be very concerned about the possible risks to the NHS and to my daughter with hundreds of facebook friends, and ask them to send it to at least 10 other people and so on. I attach a short document with 5 key reasons for opposing the bill which you could send to people who may not be aware of the issues.

3. Would all of you who are BMA members please consider emailing Hamish Meldrum welcoming the decision to oppose the bill and have a public campaign and urging him to start the campaign now, as time is running out. His email address is hmeldrum@bma.org.uk 10 days ago BMA Council passed a motion to change its position to one of opposition to the Health and Social care Bill and to rapidly organize a public campaign against the bill.

This is good news as we believe there is still time to defeat the bill if all the forces which are opposed could work in concert in one big push over the next few weeks, especially if we alert the public to it as unfortunately so few members of the public really understand what’s at stake. That’s where the BMA’s public campaign could have a huge impact.

It could do some or all of the following: press conferences, public meetings and rallies, leaflets, posters and postcards for patients to send to MPs, media (including electronic) campaign etc.

But it depends on the BMA leadership, especially the chair Hamish Meldrum, committing effort and resources to making it happen. Unfortunately 10 days have passed and we’ve heard virtually nothing, This is similar to what happened when BMA Council passed a motion in July to have a public campaign. It never happened.

by Dr Louise Irvine

 “The proposals are ideological with little evidential foundation. They represent a decisive step towards privatisation that risks undermining the fundamental equity and efficiency objectives of the NHS. Rather than “liberating the NHS”, these proposals seem to be an exercise in liberating the NHS’s £100 billion budget to commercial enterprises”

Reproduced from the Opendemocracy website

Jacky Davis December 1st 2011

The British Medical Association – representing 147,000 doctors in the UK – finally lost patience with Andrew Lansley’s unloved and unwanted Health and Social Care Bill last week when its national Council voted decisively to move to a position of full opposition to the entire Bill and to campaign against the threatened legislation.

Up until now the doctors’ trades union has believed that it could rescue the parts of the Bill that appealed to some doctors, in particular the proposal that GPs commission care on behalf of their patients.  At the same time they hoped that by reasonably engaging with politicians they could mitigate the frankly obnoxious parts, in particular the burgeoning involvement of the private sector in delivering the service, and the emphasis on competition rather than collaboration in the English NHS, an attitude which is completely counter cultural for health care professionals and which has no benefit for patients beyond a spurious ‘choice’ agenda which most don’t want.

However a leaked document – Developing Commissioning Support: Towards Service Excellence – has proved to be the final straw that broke the BMA’s hope that something – anything – could be rescued from this legislation.  It is written in the usual impenetrable jargon and double-speak but when translated into plain English it indicates that the private sector will rapidly be taking over the support of commissioning, leaving GPs with little power beyond organizing some specialized areas such as learning difficulties and yet still likely to get the blame for the cuts and closures which will inevitably result from the financial squeeze which the NHS is facing.

It makes a mockery of promises to put the profession and patients in the driving seat, a position which will instead be firmly occupied by the transnational health corporations who see huge opportunities for helping themselves to a large slice of the NHS budget.

With GPs furious about this early betrayal it is now difficult to find anyone outside the Coalition and the Department of Health who thinks this Bill is anything other than a dangerous and chaotic mess. More than a few Tories wish it would just go away.  The Lords are trying to water it down with amendments but the Bill is of a piece, woven from whole cloth and no amendment is going to make it palatable or even workable.  With Andrew Lansley arousing more suspicions by refusing to disclose the risk assessment documents to the House of Lords (so much for promises of transparency in government) it is astonishing that it is being allowed to stagger on when it would be in almost everybody’s interest to put it out of its misery.

The NHS is after all (Commonwealth Fund Study 2011) one of the most cost effective and popular health services in the industrialized world, and the last thing it needs (according to a recent report by the OECD) is another major upheaval. The ‘crisis’ of the NHS is a manufactured one, scare stories invented to suit the Coalition’s assault on public services, and we are not fooled by bogus statistics about poor outcomes, of which the government should be ashamed. 

So here is a suggestion. Halt the Bill now, just stop it and concentrate on rescuing the situation on the ground brought about by starting to implement it before it is law. Then we can take a deep breath and consider in relative leisure how we can improve the NHS without destroying it.  Otherwise this will be the Coalition’s poll tax, and they will suffer the political consequences because the public will not forgive the political vandals responsible for the destruction of the most popular institution in this country bar none.

Dr Jacky Davis is a consultant radiologist, co-founder of Keep Our NHS Public and a member of the BMA council. She has written this piece in a personal capacity.

 For immediate release: Friday 25th November 2011

Keep Our NHS Public welcomes the British Medical Association’s affirmation that the Health Bill be scrapped.

Keep Our NHS Public congratulates the BMA on its vote yesterday to oppose Lansley’s Health & Social Care bill entirely.  We warmly welcome the BMA – representing 147,000 doctors – to join us, and the broad coalition of other health and patient organsiations, as we continue the public campaign against the Health bill.
The tipping point for the BMA has been the leaked government document, ‘Developing Commissioning Support: Towards Service Excellence’, which makes clear that support services for clinical commissioning groups (CCGs) in England will be provided solely by large private companies after 2016.  This makes mockery of Lansley’s promise to put doctors in the driving seat.
Keep Our NHS Public, the NHS Consultants Association, Health Emergency and the NHS Support Federation, along with other leading health and patient groups, look forward to hearing how we may work with the BMA to carry forward this public campaign to its rightful conclusion: the scrapping of the Health & Social Care bill and the beginning of a real, informed debate on how to make the NHS even better than it is already.  We have one the best health services in the world, and the last thing patients need is a major re-organisation of their service – a point confirmed in detail in the recent OECD report1.
For further information please contact:

Wendy Savage: Co-chair, Keep Our NHS PublicMobile: 07939 084 544Email: co-chair@keepournhspublic.com

Ron Singer/Jacky Davis:Respective Mobiles: 07976 141 199 / 07801 721 828 (urgent enquiries)Email:campaignmanager@keepournhspublic.com

 
1 Coalition health bill will undermine NHS, says OECD thinktank, The Guardian. 23rd November 2011

To see the latest House of Lords briefings on the Health and social care bill, please check Allyson Pollock’s blog here: http://www.allysonpollock.co.uk/index.php?option=com_article&view=search&Itemid=3

Health & Social Care Bill 2011

Briefing note 4

House of Lords Committee stage

 Clauses 3, 4, 6 and 7 for debate on Monday 7^th and Wednesday 9^th November 2011

 Recommendations

With a view to ensuring that clinical commissioning groups (CCGs) would be responsible for planning and commissioning comprehensive services for all people in contiguous geographic areas throughout England, as primary care trusts (PCTs) do at present, and to retaining constitutional control, we recommend

• on Clause 3 that amendments should be tabled to Clauses 7 and 10 to base CCG responsibility on contiguous geographic areas, thereby making monitoring of inequalities, and implementation of strategies to reduce inequalities and research on inequalities reduction feasible;
• on Clause 4 that peers should support the Liberal Democrat / Labour / cross bench notice of intention to oppose the Question that Clause 4 stand part of the Bill;
• on Clause 6 that this Clause is revisited in the light of resolution of Clause 1 and the constitutional issues;
• on Clause 7 that an amendment should be tabled to give CCGs the duty to promote a comprehensive health service in their area.

Introduction

 CCG responsibilities do differ substantially from PCTs: registered populations will not be based on all residents within an area.

Lord Howe has sought to reassure peers that CCG responsibilities will not differ substantially from those of PCTs:

My noble friend asked me a yes or no question: are CCGs just like PCTs? In terms of population responsibility, the responsibilities are very similar. CCGs are responsible for patients on the registered lists of their constituent practices as well as having specific area-based responsibilities, as I pointed out, linked to their unique geographic coverage (Lords Hansard, 02 Nov2011: Column 1270).

However, Lord Howe and David Nicholson, the NHS Commissioning Board shadow chief executive, have made clear that unlike PCTs CCG areas are indeterminate and their responsibilities not comprehensive.

 Lord Howe stated in the Lords that CCGs will differ from PCTs in the following ways:

• CCGs will not be formed on the basis of responsibility for all residents within a contiguous geographic area: “It is possible for individuals within that area to be registered with a GP practice which is a member of a different CCG. It would therefore be the responsibility of that other CCG (Lords Hansard, 02 Nov 2011: Column 1271).”
• CCG responsibilities for services for all people in their area are not defined, apart from emergency care: “We must also ensure, when we exercise the power to set out other persons for whom a CCG has responsibility, to provide through regulations that a CCG has responsibility for ensuring that everyone in its area can access urgent and emergency care (Lords Hansard, 02 Nov 2011: Column 1267).”

David Nicholson confirmed the government’s position that in future residents in an area or in the same household may be able to choose their CCG on the basis of services provided by GPs. He said on the Today Programme (BBC Radio 4, 31 Oct 2011, 06:54):

We will publish information about general practices so you will be able to see what your general practice provides as compared with other GPs in the area and nationally … 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 services for particular people with long term conditions.

Clause 3 (Amendments 21 – 33)

Clause 3 would impose a brand new duty on the Secretary of State to have regard to the “need to reduce inequalities between the people of England with respect to the benefits that they can obtain from the health service.” (A similar, though slightly different duty would be placed on the NHS Commissioning Board under Clause 20: new s. 13G).

This duty could be strengthened by requiring the Secretary of State to have a duty to reduce inequalities.

However, the problem with this Clause (and with new s. 13G) is that the duty would not be capable of effective fulfillment.

Public health analysis and needs assessment require comprehensive area based population data. This is the basis of current health system mechanisms for resource allocation and for the commissioning of public health measures designed to prevent or ameliorate systematic inequalities – both between groups of residents in an area and across and among areas – with respect to access to resources and services and their use and outcomes. Census estimates, adjusted for factors such as age and deprivation are used as the denominator for the population in such analyses. In future, public health analysis will not be able to be carried out in this way, because of the proposed shift from area-based (PCT) to GP list-based (CCG) structures. Denominators which rely on GP registrations to promote reductions in inequalities are inherently problematic because continuous enrollments and disenrollments affect accuracy, as does patient selection; the denominator will not be representative of all people in a geographically bounded area. Without the geographic population focus it will not be possible to monitor inequalities.

The apparent thrust of all the tabled amendments to Clause 3 is to be welcomed from the point of view of strengthening and clarifying the duty. However, none of them would ensure that reductions in systematic inequalities as regards resource allocation, and access to, use of, and provision of services would, in reality, be achieved for as long as CCG responsibility is not geographically bounded and serving all people in that area.

 We recommend that amendments should be tabled to Clauses 7 and 10 to ensure CCG responsibility is on the basis of a contiguous geographically bounded area. This will make monitoring of inequalities and implementation of strategies to reduce inequalities and research on inequalities reduction feasible. (Amendment 59A would go some way to remedying this problem, but is limited in its application.)

Clause 4 (Amendments 34 – 38)

The proposed ‘duty as to autonomy’ in Clause 4 would require the Secretary of State “so far as is consistent with the interests of the health service” in exercising his or her functions to act with a view to securing that any other person exercising functions in relation to the health service or providing services is “free” to do so in the manner they consider most appropriate and that “unnecessary burdens are not imposed on” them. (Clause 20: new s. 13F would impose the same duty on the NHS Commissioning Board.)

 This would substantially fetter the Secretary of State, impose a much higher legal test of the necessity of an action than currently, and increase the freedom of the NHS Commissioning Board, CCGs, and providers. It would restrict the content of the standing rules (Clause 17: s. 6E) and of the mandate (Clause 20: s.13A), which would be the most significant ministerial powers remaining were the Secretary of State’s duty to provide health services to be abolished under Clauses 1 and 10.

Clause 4 could also limit the minister’s power to extend coverage of people and services for whom CCGs are responsible (regulations under Clause 10(3): s. 3(1B)) or require the Secretary of State to exercise the power to exclude people from CCG responsibility, and thus from the health service (regulations under Clause 10(3): s. 3(1D)).

None of the tabled amendments seek to disapply the Clause to key powers such as the making of the standing rules, the mandate, and people for whom CCGs will and will not have responsibility. Nor do they seek to reverse the duty from one of positively acting to one of refraining from certain acts. Rather, they propose some very minor word changes which do not go to the heart of the Clause’s effect.

 We recommend that peers should support the Liberal Democrat / Labour / cross bench notice of intention to oppose the Question that Clause 4 stand part of the Bill.

 Clause 6, and Schedule 1 (Amendments 48 – 59)

Clause 6 establishes the NHS Commissioning Board as an independent body corporate with responsibility for holding CCGs to account. Schedule 1 provides that the Board is not to be regarded as a servant or agent of the Crown, and that its property is not to be regarded as property of the Crown. If the Board is not a servant or agent of the Crown and does not have the key duties of the Secretary of State, then the link between the Secretary of State and the NHS is severed.

The creation of a body independent of the Secretary of State to hold health service commissioners to account is inconsistent with the current duty of the Secretary of State to provide health services throughout England and drives a coach and horses through parliamentary accountability for around £100 billion of annual public expenditure. None of the tabled amendments deals adequately with this inconsistency or the constitutional issues.

 We recommend that this Clause is revisited in the light of resolution of Clause 1 and the constitutional issues.

 Clause 7 (Amendments 59A – 60A)

Clause 7 provides for the establishment of CCGs, with the function of arranging for the provision of services for the purpose of the health service in England.

If, however, Clauses 1 and 10 were to be enacted as they stand, the link between the duty to promote a comprehensive health service and the duty to provide health services throughout England would be severed.

Amendment 60A appears to address this issue, by declaring that CCGs have the function of safeguarding the comprehensive provision of NHS services. It does not, however, go as far as it could in seeking to restore the link.

The NHS Commissioning Board would have the duty to promote a comprehensive health service concurrently with the Secretary of State (Clause 6), and we recommend that an amendment to Clause 7 should be tabled to give CCGs the duty to promote a comprehensive health service to all persons in their geographic area. (Amendment 59A would go some way to basing CCG responsibility on contiguous geographical areas, based on local authorities, but is limited in its application.)

 Clause 10 is also particularly relevant to understanding the differences between CCGs and PCTs. These issues, and questions of clarification, have been raised in Briefing 1.

 Allyson Pollock, Professor of Public Health Research and Policy at Queen Mary, University of London

David Price, Senior Research Fellow at Queen Mary, University of London

Peter Roderick, public interest lawyer

Tim Treuherz, ex Head of Legal for Vale of White Horse District Council

06 November 2011

The history of the GP referral.

“… by 1900 The London Hospital [outpatients department] was seeing, on average, over 4200 out-patients a week or (excluding Sundays) over 700 a day. These patients were seen in the space of 2–3 hours each morning with the average consultation lasting about 1 minute or less, during which they were seen and prescribed a bottle of medicine by junior hospital staff.”

“Anyone with an eye for figures reading the Clerk’s report for St. Bartholomew’s Hospital for the year, say 1877, must, if previously unused to such facts, feel his mind somewhat unhinged by the statement that 157 947 patients were relieved at that institution in the course of the year. He might cut out the 5000 and odd in-patients, and the 780 women attended at their houses, but he would still be left with a total of 151 836 persons who were actually registered as visiting the hospital presumably for the first time, and having their complaints investigated and treated …”

Bridges, [who later became poet Laureate and worked as a casualty doctor] added that follow-up attendance were not included in the totals and a sizeable number escaped registration, so that the true total was nearer 200 000 than 150 000.

“The surgery [that is, out-patient department] is a large hall, 90 feet by 30 feet with rooms opening off it at the four corners … One half of the hall, with the rooms off it, is devoted to the women, the other half to men … The work is done in the mornings and patients are admitted at 9 o’clock [when] the doors are thrown open … [and] forcibly held ajar by the porters … This goes on until, at 10 o’clock precisely, the doors are forcibly shut. If anyone should go into the hall at about 20 past 9, he would see some 100 persons standing in an orderly manner … the women engaged in conversation, the men waiting in silence. If he goes out and comes in again at 11, he will frequently find the room nearly or quite empty.”

Bridges was deeply shocked by having to deal every day with:

“… some 200 paupers, who are many of them seriously ill, some mortally, many but slightly, but nearly all with considerable bodily inconvenience or pain which, unless disease be a joke, and this the whole constitution of our hospital forbids us to suppose, entitles them to his patient attention and
investigation, and demands”

Senior hospital staff were ambivalent towards the out-patient problem. They could, indeed should have seen that outpatient chaos was incompatible with good medical care, but they firmly believed that the larger the numbers of patients they claimed to have ‘treated’, the more subscriptions they would attract. But those who were loudest in their condemnation of this scandalous state of affairs were the GPs. In areas such as the East End of London, until the 1840s GPs earned (or scraped) a living by charging the working classes sixpence or a shilling for a visit to the surgery and sixpence for the inevitable bottle of medicine. Out-patients however was free, and as the number of patients increased GPs were forced to reduce their fees. Many went bankrupt. By the end of the 19th century it was clear that something had to be done because, as one correspondent put it in 1894: ‘The abuse of the hospitals’ out-patients departments is an evil so gigantic that the tendency is to regard it as being unavoidable … ’ He recommended that only cases which were ‘certified by a medical man as requiring special consideration’ should be admitted to out-patients.

Irvine Loudon, The Principle of referral: The Gatekeeping role of the GP

The origin of the GP referral and the gatekeeping role was born out of a crisis bought on by exponential demand on hospital outpatient departments.

“… at The (Royal) London Hospital the annual number of out-patient attendance was (in round figures) about 1000 in the decade 1800–1809, 17 000 in 1850–1859, and 220 000 in 1900–1909”

The solution was that ‘the physician and surgeon kept the hospitals and the GPs kept the patients’ meaning that the only way to access a hospital outpatients was with a letter of referral from a GP.

Unlike the university educated physician or surgeon, the origin of the GP in England was the apothecary or pharmacist, and the professionals had long looked down on them.

In the mid-nineteenth century, sensing competition, the powerful Royal Colleges, notably the Surgeons, did all they could to suppress the foundation of the Association [of General Practitioners], and contemporary accounts of the acrimonious debates which ensued make today’s jibes about arrogant hospital consultants and golf-playing GPs look distinctly insipid. General Practice, Past, Present and Future

After the National Insurance act of 1911 GPs earned enough to provide basic care for their poorer patients and avoid the need for specialisation, but nothing was done by the British Medical Association to tackle the variation in quality of General Practice and few GPs showed any interest in providing care in hospitals.

The reason for this historical preamble is to show how the divisions between GPs and specialists became entrenched, because how we address GP referrals depends almost entirely on the quality of this relationship.

A century later we face another crisis.

The reasons for the extraordinary rise in medical demand in the decades up to 1911 are still not understood. Neither, for that matter are the reasons for the rising demand in recent decades which has occurred at the same time as the population, by most measures has become healthier. I offer some suggestions in another blog post, ‘The Cost of Chronic Disease and the lack of NHS reform’

This crisis is not one of excessively busy outpatient departments bought on by an exponential increase in GP referrals, nor of an exponential rise in patient demand on GPs, but is a crisis of funding, manufactured by our coalition government who have flat-lined NHS spending. So-called ‘efficiency savings’ amount to £20bn over the next 4 years and according to a Tory peer who wrote to me about the health bill, ‘they will destroy the NHS’.

It is proposed that significant savings can come from reducing GP referrals. The bulk of the NHS budget is being given to GP commissioning consortia (GPCC) to spend ‘commissioning’ services for their patients. This means that whenever one of my patients is referred to hospital, either to an outpatient clinic or an A&E department in an emergency, or even if they go to A&E without a referral, the cost comes out of the GPCC budget. Any follow-up appointments, investigations, procedures, operations, inpatient stays, prescriptions and so on all contribute to the costs. Therefore the GP has little control over most of the costs associated with a referral.

Why do GPs refer patients?*

When a GP refers a patient it is usually for one of three reasons:

1. investigation and/or diagnosis,
2. treatment
3. advice and/or reassurance for the patient and/or GP.

There are enormous variations in the rates at which GPs refer their patients. Up to 40% of the variation can be explained by patient characteristics, for example some GPs see more elderly patients, or work in more deprived areas. Up to 10% is explained by doctor characteristics including ability to tolerate uncertainty or cope with patient pressure.

Not referring patients

The first patient I ever made a decision not to refer had a headache. As an A&E doctor I could have referred him to a specialist, but I thought he was fit to go home. A few hours later his family bought him back to hospital because the headache was worse and he was confused and drowsy. On arrival at the A&E department he had a fit and despite emergency surgery for a bleeding blood vessel in his brain, he died not long after. It was a devastating start to my medical career and has influenced my practice ever since.

When Sally bent down to pick up her 3-year-old daughter, she suddenly felt a pain in the middle of her back. She was a healthy woman in her late 30s with no other symptoms. Three months later we sat down as a practice to discuss how it was that the breast cancer which had spread to her spine had been missed when she came in to see me complaining of back pain. I still feel awful when I think about her. As the responsible clinician I prepared for the critical incident meeting by researching all the recent guidelines for the assessment of patients presenting with back pain to make sure that neither I, nor any of my colleagues would make the same mistake again. I discovered in my research that the chance that a woman in her late 30s with breast cancer would present with back pain due to a spread of cancer to her spine is about one in a million. Back pain is one of the commonest complaints patients bring to GPs and accounts for between 5 and 10% of consultations. A GP is expected to be an expert at managing the vast majority of cases that do not need a referral and at recognising the one in a million that does.

The consequences to the patient, of a doctor failing to spot a serious disease will vary according to the length of delay. In some cases it will be fatal and in others it will make very little difference to the prognosis. In some cases, it will seriously damage the relationship between the doctor and the patient, but frequently it does not. The effect that it has on a doctors’ psychology and behaviour is not often examined.

I have made headaches one of my special interests and last year I spent time teaching other local GPs about how to manage patients with headaches. Some GPs were arranging a lot more brain scans and referring a lot more patients than others. Many of these GPs simply struggled more than others to manage the niggling doubt that their patients’ headaches might represent something really serious. Only one had ever seen a patient with a brain tumour, but all felt really pressured by patients who they thought were more anxious and harder to reassure than ever. They thought this was due to several contemporary trends including:

• the loss of medical authority and dwindling respect for professional opinion
• the conversion of patients into ‘consumers with rights’ to be referred if that is what they choose. A phenomenon called ‘healthism’
• The tabloid obsession with exposing ‘GPs who missed something rare but serious’ which always concludes with the simple message to their readers, ‘if you’re worried about something insist your GP refers you to a specialist’.
• The fear-mongering medical industry which uses patients’ anxiety to sell them unnecessary scans, backed up by alarmist media.
• faith in technology which suggests that for every symptom there must be a physical cause and a technological solution.
• Easier access to investigations which has led to doctors investigating more frequently and then raises patient expectations of investigations.
• Many of our patients are from countries where doctors have a financial interest in scanning or prescribing and consequently expect to have a scan or a prescription for every complaint. Our patients are suspicious that we scan less in order to save money.
• The NHS cuts and growing awareness of GPs as NHS budget holders in a time of austerity.

A detailed review of patient pressure for referral for headaches in 2006 showed wide variation in GPs ability to tolerate uncertainty:

This was particularly, but not exclusively, emphasised by GPs who described less clinical confidence:

‘ … I might refer people just for my own anxiety and fears of missing something, even if they’re not anxious. So, really, I suppose it depends on lots of factors.’ (GP 1803)

‘If we could refer everybody for an MRI scan tomorrow, we’d all have a lot more peace of mind. But we cannot, because there aren’t the facilities available. And so we have to live with uncertainty and we can, all of us, can only live with a certain amount — there comes a point where you just get uneasy and think “I need to be more sure about this”.’ (GP 2511)

However, problems of tolerating uncertainty were not fully explained by actual clinical competence or experience, as this GP observed:

‘We used to have a partner who is retired now who had pretty well double everyone else’s [referral rate], in spite of being very experienced, good at diagnosis and so on, but he couldn’t stand uncertainty.’ (GP3911)

Pressure to refer

Peggy has had terrible headaches for the last 2 years, a consequence of severe osteoarthritis in her neck. It keeps her awake for 2 or 3 nights a week and has not improved with physiotherapy, osteopathy or a range of medications.

Peggy is very anxious, she comes to see me almost every month and telephones for advice and reassurance almost every week. Together we have been through worries about breast and ovarian cancer, cancer of the spine and more recently concerns about her husband’s health. I was surprised that it took so long for her to admit that she was worried about a brain tumour. I had asked her before if she was worried about cancer, a stroke or some other serious underlying cause for her headaches. Even though we had agreed that the arthritis in her neck was to blame and she reassured me that my reassurance had reassured her. When eventually she phoned to say that she had arranged a brain scan privately I couldn’t help feeling disappointed, not with her, but with myself for failing to allay her fears. She apologized and said it wasn’t my fault, she said she trusted me and was sure that I was right, she hoped, sincerely that I would forgive her. She promised to come back and see me after the scan.

Peggy understands that one of the main roles of a general practitioner is to manage their patients’ anxiety. She, like millions of others like her, knows the pain and distress of coping with her own anxiety and she is embarrassed and upset by the effect it has on others at the same as she respects those who are able to cope with it, and haven’t pushed her away or abandoned her. She has bought in cards and small gifts of appreciation over the years, always expressing how sorry she is to keep bothering me with her worries and constantly afraid that one day I’ll say ‘enough’ because she has ‘cried wolf’ one time too many. Among my consistent reassurances is the assurance that she is not wasting my time. There is a therapeutic limit, a point at which seeking reassurance becomes an obsession, an end in itself, and we have bought this up and remind ourselves of it from time to time to ensure the relationship is therapeutic.

Like many of my most anxious patients, Peggy is socially isolated. She has very few close friends left. Not wanting to bother them who have enough worries of their own she keeps herself to herself. She self-medicates with alcohol and cigarettes, ‘anxiolytics’ in the pharmacological lexicon, drugs that relieve anxiety. The combined effects of poverty, financial insecurity, low levels of literacy and numeracy, poor housing and street violence add up to a high proportion of my patients suffering chronic, severe anxiety. My strongest impression of working as a GP for a couple of weeks in better off Salisbury was that the patients there were so much easier to reassure than in Hackney.

Peggy and her husband are better off than most of my patients and they have private health insurance which will pay for Peggy’s MRI brain scan. I could order an MRI scan myself, paid for by the NHS. I chose not to order one in part because I had no reason to suspect it to show any abnormalities, but also because investigations rarely provide more than a very short-term relief from anxiety and then raise the expectation that new symptoms need a similar level of investigation. Cost is not an issue at present. For the last few years I have been able to arrange MRI scans at no additional cost to the practice or PCT because the provider, InHealth was paid a block contract and we are still are a way off ordering all the scans that were paid for. It has changed the way local GPs order scans; many are ordered for knees, spines, and brains that previously would have first required a consultant referral and an expert opinion. Only rarely do they change clinical management, but they are raising our patient’s expectations. It will not be long before contracts like this finish, and every scan will incur a cost to the CCG.

Our local neurologist/ headache specialist explained that when a GP referred a patient with a headache they used to arrange a brain scan as a matter of course because a. they could, b. it was what the patient expected and c. it was what (they assumed) the GP wanted. Now he says he rarely arranges a scan because a. the GP has already done one or b. the GP has spent time and effort explaining to the patient why a scan is unnecessary. Just as verbal reassurance seeking can become obsessive, so can radiological reassurance seeking. Scans can cause physical and psychological harm. This ranges from exposure to radiation to ‘false-positive’ results that lead to more unnecessary investigations and increasingly risky procedures. Anxious patients are too numerous and too easily exploited to prevent the market growing in commercial organizations offering MRI and other scans.

Over-investigation in the NHS has never before been a commercial enterprise, but in recent years, because of the internal market, hospitals are paid for each procedure and ‘scoping for money’ has become a real risk. There are other more benign reasons for over investigation. Humans are social creatures and emotions are contagious, we infect others with a little of our joy, frustration, serenity and angst. Anxious patients make doctors anxious. When we are faced with one patient after another, day after day, infected with the anxiety associated with deprivation and social exclusion it can weigh heavily and influence our clinical management and so anxious doctors working in deprived areas tend to have above average referral rates.

All doctors, especially those who deal with the uncertain business of making a diagnosis out of their patient’s undifferentiated symptoms worry about missing a serious illness. It is a rarely challenged rule of medicine that faced with an anxious patient with physical symptoms, we first have to rule out a physical cause’ before dealing with the psychological distress. How far we go in ruling out a physical cause depends on our knowledge and confidence and on what it takes to reassure our patient.

Dr Mike Chester is a cardiologist with a special interest in ‘refractory angina’. Angina is a condition due to poor circulation to the heart that causes chest pain. The symptoms are almost indistinguishable from a heart attack. Refractory angina refers to the most severe cases with chest pain coming on unpredictably including at rest. Dr Chester discovered that by using psychological interventions he could significantly reduce his patients symptoms with a reduction in medical and surgical interventions and a rapid and sustained reduction in unscheduled admissions and heart attack rates. The key to this was ‘patient centred care’, letting patients take a lead in deciding what treatment they wanted. It is estimated that up to there are up to 50 000 unnecessary medical interventions for angina in the UK annually and one aim of his work is to try to reduce these excessive, high-risk interventions.

Why not refer?

The risks of over-investigation are particularly grave for some patients. Up to 50% of patients’ symptoms defy medical explanation and a significant number of patients repeatedly present with these so-called, ‘medically unexplained symptoms’. Research conducted by the Tavistock in conjunction with GP practices including our own has found that there are patients who repeatedly present to heir GP and to hospital with physical complaints for which no medical cause can be found. Although many do have chronic anxiety and/or depression, many do not. Identifying the most severe patients is often retrospective. In the days before electronic records they would have had the thickest sets of medical records, testament to the efforts of the medical establishment to find a cause of their symptoms. Accounting for approximately 1% of our practice population they outnumber patients with rare cancers many times over. What both groups have in common is that the diagnosis is too often delayed.

Carol eventually found a private consultant who offered a drastic solution to her severe abdominal pain and constipation. Over a period of about 20 years she had seen gastroenterologists and surgeons, dieticians, nutritionists, homeopaths and other alternative therapists. She had been scanned dozens of times and had endoscopies to inspect the inside of her bowels and operations to examine the rest of her abdominal and pelvic organs. Her gall-bladder and appendix had been removed, gut hormones and secretions measured and fragments of her bowel repeatedly studied. Eventually the surgeon suggested that he removed half of her large bowel. Even after this extreme intervention her symptoms remained. Finally she was referred to a psychologist who traced her symptoms back to an incident in her adolescence when she woke up after a very drunken party in which she believed she had been raped, but could not prove it and had never told anyone about it. After a year of therapy her symptoms had significantly improved and she was able to enjoy sex with her husband for the first time.

This demonstrates the risk of doing everything possible to rule out a physical cause without considering the psychological causes of ill-health. Medicine still suffers from a Cartesian divide between the mind and the body. Patients problems are divided into either physical or physical at a very early stage and those with physical ailments are psychologically neglected and vice-versa. Not only are the psychological needs of patients with biological illnesses neglected, but patients with serious mental illnesses like schizophrenia die prematurely from treatable medical conditions. Doctors are increasingly specializing in single organs or a smaller, more technical range of procedures with the result that they are becoming poorer at looking after the whole person. This is what the psychoanalyst Michael Balint referred to as ‘the collusion of anonymity’ in which, “the patient is passed from one specialist to another with nobody taking responsibility for the whole person”

As I have detailed in a recent post “A world without health professionals”, the most significant part of a GPs job is to manage the interface between suffering -what the patient presents with- and illness or disease. Only rarely is it necessary to refer patients to a hospital specialist for medical management. Our job, far more than diagnosing disease, is diagnosing ‘non-disease’, in other words, helping patients to cope with illness and suffering without imposing a medical diagnosis. Because a GP sees patient-defined suffering, the incidence of serious illness is much lower than in patients who present to hospital specialists, ‘gatekeeping is an effective way to increase the prevalence of serious disease in the population of patients whom hospital doctors see. Since a high prevalence of disease in a population ensures that the positive predictive value of signs and symptoms is increased, having effective gatekeepers turns out to make the diagnostic task of hospital doctors easier.’ The problem arises when patients with medically unexplained symptoms present to hosptial doctors, unlike GPs their emphasis is on exploring the biological possibilities, and it is here, rather than at the point of GP to specialist referral that the costs of excessive medicine arise.

A successful referral?

What then of a more straight-forward referral, where the GP has made the diagnosis and has referred the patient for treatment?

I visited Gordon at home last week. He has been housebound since his knee replacement a year ago. When I initially referred him to the orthopedic surgeons 2 years ago he was just about able to hobble into my surgery on crutches, in severe pain from osteoarthritis. The operation was delayed for a year because the anaesthetist wanted a cardiologist to review his heart failure before the operation. The cardiologist wanted to repeat a barrage of investigations which involved trips to different hospitals all over london to get the scans they wanted. Gordon was advised that the operation itself was safe, but the anaesthetic carried high risks because of his heart failure. He was torn between pain and disability and the possible fatal consequences of an anaesthetic and we spent several consultations over the year discussing his fears. We never considered the possibility that his knee might not improve; that he would be more mobile and in less pain was taken for granted. According to Hospital Episode Statistics released this year, only about 50% of patients report an improvement after a knee replacement. I know Gordon wishes he had never had the operation. As a GP I need to know the likelihood of my patients’ improving after surgery so that I can help them make an informed decision. But telling Gordon that there was a 50:50 chance of improvement may have been much less significant that the risk of dying under the anaesthetic. This raises questions about the limitation of the government’s obsession with patient choice of hospital provider. The orthopedic surgeon is only one part of a complicated network of different specialists working together in a different way for every unique, individual case.

Can GP referrals be reduced?

GPs are naturally cautious and every review of GP referrals has shown that they refer far more patients than could be justified by evidence-based guidelines alone. My review of headache referrals suggested that up to 40% of referrals were unnecessary and this is in line with other research. What I could not tell from reading the referral letters was how many of these apparently unwarranted referrals were to reassure the GP and/or the patient and how many were for management that the GP could or should have been able to do themselves. A decision to refer a patient is only one of a range of choices that GPs and patients make together (described in a previous blog, What’s the point of patient choice? ) After all these other decisions, the decision to refer may not have been made lightly, but after considerable negotiation and overladen with great anxiety.

Guidelines are rightly described as ‘guidance for the wise and rigid adherence for the intellectually moibund’. Clinical judgment cannot be simply over-ridden by guidelines as a reason for referral. One reason GPs defend using clinical judgement to sidestep evidence based guidelines is that patients such as young people with cancer present with atypical symptoms that do not fit the guidelines.

At the moment GPs throughout the NHS are reporting ‘enormous pressures’ to reduce referrals. Methods range from the draconian; being limited to four referrals a week, to the bureaucratic; referral management centres run by international businesses like United Health or Humana, whose profits depend on reducing the numbers of referrals. Earlier this year, the UK division of US health insurance giant UnitedHealth sold its GP practices to The Practice, focusing instead on providing commissioning support (referral management) to GP consortia. UnitedHealth also own a program called Script Switch, which automatically suggests cheaper alternatives when a GP types in a prescription. It can also be used to restrict the range of prescribable drugs. UnitedHealth have identified that commissioning, rather than general practice, is where the profits are. They have a history of restricting care in the US where were found guilty of fraud after they underpaid millions of people in New Jersey, Florida and California after determining insurance reimbursements for out-of-network care.

Update 11.11.2011: GP commissioneers impose locum referrals ban Pulse

Update 17.11.2011: Serious incidents at referral gateways Pulse.

A review of the literature on GP referrals concluded:

Targeting high or low referrers through clinical guidelines may not be the issue. Rather, activity should concentrate on increasing the number of appropriate referrals, regardless of the referral rate. Pressure on GPs to review their referral behaviour through the use of guidelines may reduce their willingness to tolerate uncertainty and manage problems in primary care, resulting in an increase in referrals to secondary care. The use of referral rates to stimulate dialogue and joint working between primary and secondary care may be more appropriate.

Many practices are telling patients that they cannot refer them until they have had a meeting with the other GPs in the practice to decide whether or not it is necessary. But there are too few examples of GPs and local hospital specialists working together.

My experience of headache referrals suggests that if the quality of referrals is improved, then the quantity will reduce. This needs peer support and appraisal from GPs who understand the pressures they are under. It also needs close collaboration with the local hospital specialists, so that both may benefit from the eachothers very different expertise, the GP with their knowledge of the patient and the specialist with their knowledge of the disease.

In summary

The pressure to refer patients is likely to increase due to factors beyond the control of GPs. These include the effects of social deprivation, health care marketing, ‘healthism‘ and the changing relationship between public and professionals.

Although there is evidence that many GP referrals could be avoided, there are patients who might benefit from referral who are not presently referred. The emphasis should therefore be on improving the quality rather than reducing the quantity of GP referrals.

There is a lot that can be done to improve the quality of GP referrals but the longstanding rift between GPs and specialists discussed at the beginning of this post remains a significant part of the problem. Payment by results and the purchaser-provider split adds to the problem by incentivising hospitals to over investigate and over treat, whilst pressuring GPs to under-refer, leading to mutual suspicion.

The ideological political ambition to open up the NHS to any willing provider of care, force patients to choose between these providers and have them compete with each other is anathema to collaborative, integrated care between GPs and their local hospital.

The enormous pressure that GPs are under, to save money rather than improve care, risks undermining the relationship of trust between doctors and patients. It risks referral decisions being overturned without consideration of the complex reasons behind the referral, in particular the psychological motivations of both GPs and patients.

And the perogative to reduce referrals in order to cut costs will put patients’ lives at risk.

References:

The principle of referral: The gatekeeping role of general practice http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2233970/

General Practice: Past, present and future http://www.blackwellpublishing.com/content/BPL_Images/Content_store/Sample_chapter/9781405170703/Hastie%209781405170703_4_001.pdf

*Variation in GP referral rates: what can we learn from the literature? http://fampra.oxfordjournals.org/content/17/6/462.full

Patient pressure for referral for headache: a qualitative study of GPs’referral behaviour http://www.ncbi.nlm.nih.gov/pubmed/17244421

For an explanation of the issues, risks and benefits of screening see: http://www.healthknowledge.org.uk/interactive-learning/screening/chapter2

Mike Chester http://angina.org http://medicalharm.org

Why patients get unnecessary referrals. KevinMD blog

“Unsurprisingly, haemoptysis
often leads to specialist referral and the use of
investigations, but little information is available on
the outcome of hospital referrals for haemoptysis and
even fewer data are available to guide cost effective
decision making in primary care”. Alarm symptoms in early diagnosis of cancer in primary care:
cohort study using General Practice Research Database

Breast and prostate screening NY Times http://nytimes.com/2011/10/11/opinion/cancer-screenings-are-a-gamble.html

Why hasn’t integrated care developed more widely in the USA and not at all in the UK? http://jhppl.dukejournals.org/content/36/1/141.abstract

Limits to demand for healthcare http://www.bmj.com/content/322/7288/734.full

My response (that was moderated for hours and left me assuming it had been refused) to an excellent provocative blog by Richard Smith, Time to get rid of health professionals?

What patients want from their doctor are explanations for their suffering. As described by the medical historian Henry Sigerist, the demands on the ‘medicine man or woman’ have changed little in the last 2000 years even though we health professionals have. We have un-bunged the pill-bottle and released the genie of modern medicine and done our damndest to separate the modern empirical doctor from our ancient ancestors who were magicians and priests, but the failure of science to dent the ‘alternative health industry’ is just one example of the failure of modern medicine to provide an adequate explanation for much of human suffering.

In many instances, people choose the interpretation and hence the ‘healer’ that fits with their belief system. Richard’s question, posed on Twitter was, “What would a world without health professionals look like?” It would be a world full of health non-professionals who would step in to provide alternative explanations for human suffering. Clearly the role of science and evidence based medicine is invaluable and has saved countless lives, but it only deals with a tiny part of our patients’ needs. History tells us what a world without health professionals would look like: the ancient ‘medicine man or woman’ was far more than the modern equivalent, being an intermediary between the spirit world and the patient, or God’s representative, exorcist, adjudicator, protector of the tribe and more. Unlike the modern doctor, they would never attempt to reassure their patients’ that their symptoms could not be explained and hence were nothing serious.

The fifty year old woman I look after who has spent most of the last 30 years under the care of gastroenterologists, surgeons, gynaecologists and pain specialists confessed last week that she blames all of her symptoms on her forced marriage at the age of thirteen. Another woman who has puzzled head and neck specialists for decades says she knows she won’t get better because is being punished by God for an ‘indescretion’ over 50 years ago, unresolved because her husband died suddenly just when she had resolved to tell him.

Working in general practice today, whilst not on the whole cognisant of our ancient heritage, it is clear that we are the descendents of our mystical forebears, not that we have trained this way, nor that we choose to be, but it’s what our patients demand of us. It is what I meant in the previous post, what is a GPs role today? ‘we are what our patients’ make us’.

As brilliantly articulated in Iona Health’s recent Haveian Oration, the most significant part of a GPs job is to manage the interface between suffering -what the patient presents with- and illness or disease. Only rarely is it necessary to refer patients to a hospital specialist for medical management. Our job, far more than diagnosing disease, is diagnosing ‘non-disease’, in other words, helping patients to cope with illness and suffering without imposing a medical diagnosis.

Even for patients with established disease such as diabetes or heart failure, most presenting symptoms are ‘non-disease’, real, somatic symptoms (not imaginary) but symptoms that cannot be explained in biological/ medical terms. The proportions of people who present to doctors with symptoms that defy medical definition is surprisingly consistent be it the centre of a modern metropolis or in a village in North West Afghanistan or Nepal (both are places I have worked).

Looking after people who present this way is the most time-consuming, challenging and valuable part of our work. Protecting patients from unnecessary medical intervention and reducing medical costs may be the best we can do, but it’s clearly not enough for patients who are rarely reassured by our lack of explanation and are rightly suspicious of our position as healthcare rationers.

What is also clear is that it is inadequate to dichotemise symptoms into those that science can explain and those that it cannot. A more rounded medical education can help, but the best education comes from listening to our patients stories.

This work cannot be measured in terms of productivity; there is no measurable difference to the patient, no data gathered, no drugs prescribed, blood results generated, biometric data tweaked. It is invisible work and the reforms threaten this by turning patients and their care into commodities which require value adding at every interaction.

The future is one in which the business of managing disease may, as Richard suggests be increasingly removed from health professionals, but disease management is only a part of what we do.

The future will, I hope, be one in which human relationships are central, and one in which the desire for meaning is taken seriously. And the GP will be much closer to his or her ancient ancestors than the scientific doctor Sigerist envisaged or Richard Smith believes us to be.

Further reading.

Does The US Health System Really Need Doctors?

The Therapeutic Relationship. Kings Fund report by Iona Heath and Trisha Greenhalgh

Health & Social Care Bill
House of Lords Committee stage
Briefing Note 3

Peers should vote for Amendment 3 on Wednesday 2nd November in order to stop the government abolishing the Secretary of State’s duty to provide the health service in England and to protect a comprehensive health service for England

We are at a critical moment in the debate over the government’s wish to abolish the duty of the Secretary of State to provide the health service in England.

We are concerned that the House of Lords should not accept abolition of this duty when it continues its debate on Clause 1 of the Health and Social Care Bill on Wednesday 2nd November 2011. To do so would undermine a comprehensive service because it would facilitate selection of patients and services by commissioners and providers.

There are four positions: (see the 38 degrees website for more details)

(1) The government wants to abolish the duty. If Clause 1 is allowed to stand this will happen (see Appendix).

(2) Amendment 5, tabled by Labour and some cross benchers, is a minor amendment to Clause 1. It will not prevent abolition of the duty.

(3) A Liberal Democrat/Labour/cross-bench amendment would preserve the duty (Amendment 3), as requested by the Constitution Committee. It would basically keep the same words that have been in place since the 1946 National Health Service Act. Crucially the amendment acts as a bridge between the duty to promote in section 1(1) and the duty to provide in section 3(1) of the National Health Service Act 2006 Act. It would also lay the necessary foundation for further essential changes to the Bill.

(4) Lord Mackay of Clashfern has tabled two amendments that are reported to have the support of government and some Liberal Democrat and cross-bench peers.

These amendments would have the effect of abolishing the Secretary of State’s duty to provide the health service in England, and would do two other things.

First, the amendments basically restate the government’s Clause, and add particular reference to the Secretary of State’s power to intervene when:
• there are failures by the NHS Commissioning Board, NICE, Monitor, the Care Quality Commission and the Information Centre;
• in an emergency, services are not being provided; or
• there are breaches of the duty to cooperate, especially by Monitor and the Care Quality Commission.

This is not the same as having a legal duty to provide the health service in England.

Second, the MacKay amendment declares that the Secretary of State retains ultimate responsibility to Parliament for the provision of the health service in England. This statement was described by Lord Harris of Haringey in the debate last week as “very strange” language, not found in Acts of Parliament. It is a political, rather than a legal statement, and may not be acceptable to Parliamentary drafters.

Peers committed to a comprehensive, universal NHS throughout England should support Amendment 3 in the first instance. This amendment has been tabled by Liberal Democrat Baroness Williams of Crosby, cross bencher Lord Patel, Labour’s frontbench spokesperson Baroness Thornton and Constitution Committee Chair Baroness Jay of Paddington.

Allyson Pollock, professor of public health research and policy, Queen Mary, University of London; David Price, senior research fellow, Queen Mary, University of London; Peter Roderick, public interest lawyer; and Tim Treuherz, retired head of legal services, Vale of White Horse District Council
28th October 2011

Appendix
Clause 1
1 Secretary of State’s duty to promote comprehensive health service

For section 1 of the National Health Service Act 2006 (Secretary of State’s duty to promote health service) substitute –
“1 Secretary of State’s duty to promote comprehensive health service

(1) The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement-
(a) in the physical and mental health of the people of England, and
(b) in the prevention, diagnosis and treatment of illness.

(2) For that purpose, the Secretary of State must exercise the functions conferred by this Act so as to secure that services are provided in accordance with this Act.

(3) The services provided as part of the health service in England must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed.”

Amendment 3

BARONESS WILLIAMS OF CROSBY, LORD PATEL, BARONESS THORNTON, BARONESS JAY OF PADDINGTON

Page 2, leave out lines 2 to 4 and insert—
“(2) The Secretary of State must for that purpose provide or secure the provision of services according to this Act.”

Amendments 4 and 8

[4] LORD MACKAY OF CLASHFERN

Page 2, leave out lines 2 to 4 and insert—
“(2) For that purpose, the Secretary of State—

(a) retains ultimate responsibility to Parliament for the provision of the health service in England, and
(b) must exercise the intervention and other functions of the Secretary of State in relation to that health service so as to secure that services are provided in accordance with this Act.”

[8] LORD MACKAY OF CLASHFERN

Page 2, line 7, at end insert—
“(4) For the purposes of this section, the intervention functions of the Secretary of State in relation to the health service in England are the functions of the Secretary of State under—
(a) section 13Z1 (failure by the Board to discharge any of its functions),
(b) section 253 (emergency powers),
(c) section 82 of the Health and Social Care Act 2008 (failure by Care Quality Commission to discharge functions),
(d) section 67 of the Health and Social Care Act 2011 (Monitor: failure to perform functions),
(e) section 242 of that Act (failure by NICE to discharge any of its functions),
(f) section 266 of that Act (failure by the Information Centre to discharge any of its functions), and
(g) section 285 of that Act (breaches of duties to co-operate).”

Amendment 5
BARONESS THORNTON, LORD HUNT OF KINGS HEATH, BARONESS FINLAY OF LLANDAFF, LORD WALTON OF DETCHANT

Page 2, line 3, after “to” insert “provide or”

Brief notes before the Battle of Ideas 2011 debate,

Radical surgery for the NHS: what is a GP’s role today?

The answer depends on who is defining the role.

The answer (as always) should not come from GPs, (or those pesky meddlers the Kings Fund, or the Dept of Health) but patients.

And not the pushy, entitled, ‘fix my sore throat before I interview Sir David’ journalists, that cannot understand why GPs don’t keep the same opening hours as Tescos (do they think Tescos could afford 24hour opening if it took 10 years of training to operate a checkout?)

Nor the people who run think-tanks who write long papers about what they would want from a GP if they were a patient, only they’re not actually chronically sick or worried half to death that they might be; these are healthy people, not patients.

No, the answer is that GPs are defined by our patients: moulded, stretched, pummelled, weighed down and held up, worked over, leant on, wept on, bled and spewed over and even pissed on by the youngest ones. Our patients spend years beating us into shape.

Studies have shown that at the start of medical school, GPs are in fact normal people, capable of blending in at any social occasion. After 5 or 6 years we are turned out of the sausage machine that passes for a medical education, unable to speak the same language as our parents; after a few years in hospital we are a different species entirely, harder to understand than the average teenager. Entering General Practice we soften a little, but being unused to conversing with conscious patients who ask difficult questions, we’re like pubescent Dr Spocks trying to cope with the emotional turmoil that our patients, (yes, our-own patients) lay on us. After painful years, we unlearn most of what we have learned and replace it with what our patients have taught us. How to interpret stories and relate them back, how to recognise unspoken signals, appreciate hidden strengths, uncover silent symptoms, and be a part of the narrative of our patients’ lives.

The commonest question my patients ask me is, “Will you be my doctor?”

How can we say no? In spite of decades of incentives to make us all attachment-free, autonomous consumers, to be somebody’s GP is to make a committment, a committment in many respects like that of a marriage. To stand firm in sickness and in health, to be consistent and honest at all times, to take abuse and shoulder blame without judging, to bear witness to suffering and personal tragedy and always maintain confidentiality. To be fair and compassionate, professsional and competent no matter how we ourselves are feeling.

The commonest reason for visiting a GP is ‘fear’.

Fear that the lump is cancer, that the chest pain is another heart attack, the headache a stroke, like the one that tragically disabled Maureen. Fear that I may die before my children grow up, fear that I may lose my sight, my balance or my mind. Fear that I cannot cope, that I am a failure or that I will be judged unfairly and blamed for my suffering. To be a patient is to be unfamiliar with oneself, to inhabit an unfamiliar shell, barely in control and in need of help. The world and our relationships are radically altered when we are patients.

What an extraordinary job we do. Grounded in a therapeutic relationship, everything we do depends on trust. What an extraordinary responsiblity to be charged with caring for people when they are at their most vulnerable and most easily exploited.

Because of this it is absolutely vital that we are not led into temptation. Just as monks and nuns need to be protected from the distractions of the world so that they can dedicate themselves to God, so we need to be protected from mammon and the perverse incentives of the market-place, so that we can dedicate ourselves to our vocation and our patients, and be the doctor that they need, not the doctor the market makes us.

From Peter Roderick
“The Mackay amendment is both dangerous and enlightening. It introduces a political,rather than a legal, statement as subsecton (a), which is unlikely to get past the Parliamentary draughtspersons. More importantly in (b) it makes clear that the focus of the new secton 1(2) is interventon by the giving of directons in the event of seven listed circumstances of failures, emergencies and breaches of duty to cooperate. This is a far cry from the current secton 1(2), and demonstrates the government’s intenton of removing the Secretary of State’s duty to provide or secure provision of health services in England. Although the Mackay amendment also refers to other functons, in this regard it is just like the government’s proposed section 1(2) in Clause 1, and offers nothing.”

Health and Social Care Bill 2011

House of Lords Committee Stage

Second Briefing on clause 1 for day 1, 25 October 2011

in the light of evidence from Professor Malcolm Grant

This briefing explains the impact of the Health and Social Care Bill 2011 on the legal framework underpinning a comprehensive and universal national health service.

It adds new information to the earlier briefing sent out on 22 October in the light of evidence to the House of Commons Health Committee (Appointment of the Chair of the NHS Commissioning Board: eleventh report, 20 October 2011).

In his evidence, Professor Grant, the government’s candidate to chair the NHS Commissioning Board, said the Health and Social Care Bill

involves “an extraordinary transfer of responsibility”, but that the Bill was “completely unintelligible”.

In this briefing we show how clause 1 will fundamentally change the NHS for the worse.

A number of amendments and proposals have been put forward for Day 1 that would restore the existing duties of the Secretary of State. However, clause 1 and the amendments to it cannot be debated in isolation. If any of these are carried, other amendments will be needed later on. The most important of these clauses is clause 10, and it is the relationship between clauses 1 and 10 that is the focus of this briefing.

The briefing is divided into three main sections. These are

A The effect of clause 1 on the existing duties of the Secretary of State;

B The effect of clauses 1 and 10 of the Bill on patients and services;

C Health policy issues raised by these clauses.

A The effect of clause 1 on the existing duties of the Secretary of State: the duties to ‘promote’ and to ‘provide or secure and provide’

The current legal framework is set out in section 1(1) of the National Health Service Act 2006 (Secretary of State’s duty to promote health service). This places on the Secretary of State the duty to

continue the promotion in England of a comprehensive health service designed to secure improvement (a) in the health of the people of England and (b) in the prevention, diagnosis and treatment of illness.

For that purpose, the Secretary of State has the duty under section 1(2) to ‘provide or to secure the provision of’ health services in accordance with that Act.

Under section 3(1) of that Act, (Secretary of State’s duty as to provision of certain services), the Secretary of State also has the duty ‘throughout England’  to provide certain listed health services ‘to such extent as he considers necessary to meet all reasonable requirements’

These three provisions – in sections 1(1), 1(2) and 3(1) have been essentially unchanged, since 1948.

Clause 1 (Secretary of State’s duty to promote comprehensive health service):

The effect of clause 1, taken together with clause 10, is threefold

1 Section 1 of the 2006 Act will continue to require the Secretary of State to ‘promote’ the NHS but he or she will no longer be under a duty to ‘provide or secure the provision of’ services as there is a new but diluted duty on clinical commissioning groups (CCGs).

Our case is that there will be much less of an NHS to, as it were, be promoted and that if this clause is agreed, the NHS will not be comprehensive in the way that it is today.

2 By clause 10, the duty of the Secretary of State to provide certain listed services throughout England to meet all reasonable requirements is removed from the 2006 Act and replaced by a duty on an unknown and essentially unrestricted number of CCGs each to arrange provision ‘

to such extent as it considers necessary meet the reasonable requirements of the persons for whom each has responsibility’.

Our case is that if this clause is agreed, the NHS will not be universal.

3 There will be a severance of the duty to promote in section 1(1) from the duty to provide specified services in section 3(1), so that the person with the latter duty would not have the former duty.

Our case is that the severance of these duties will mean the Secretary of State will no longer be accountable to Parliament for the provision of services to patients in the new NHS.

Effectively, the duty to provide a national health service would be lost if the Bill becomes law. It would be replaced by a duty on an unknown number of commissioning consortia with only a duty to make or arrange provision for that section of the population for which it is responsible. Although some people will see this as a good thing, it is effectively fragmenting a service that currently has the advantage of national oversight and control, and which is politically accountable via the ballot box to the electorate.

(Counsel’s opinion for pressure group 38 Degrees)

The House of Lords Constitution Committee made a similar point:

We are concerned that the Bill, if enacted in its current form, may risk diluting the Government’s constitutional responsibilities with regard to the NHS.

(House of Lords Select Committee on the Constitution. Eighteenth Report of Session 2010 – 12: Health and Social Care Bill. HL Paper 197).

Note also that by clause 6, section 1 of the 2006 is Act is to be amended to subject the new NHS Commissioning Board to a concurrent ‘duty to promote’, except for public health functions. It remains to be seen how this will work.

B The effect of clauses 1 and 10 of the Bill on patients and services

i Clinical commissioning groups

Clinical commissioning groups (CCGs) are established by clause 7, which inserts a new section 1F into the 2006 Act. CCGs will be given what is left of the Secretary of State’s duty to provide services. By section 1F(2), each clinical commissioning group has the function of arranging for the provision of services for the purposes of the health service inEngland in accordance with the (amended) 2006 Act. The use of the word ‘arrange’ here may not make much difference.

ii Clause 10 (Duties of clinical commissioning groups as to commissioning certain health services)

Clause 10 amends section 3 of the 2006 Act (Secretary of State’s duty as to provision of certain services).

The existing arrangements are set out in section 3(1) of the 2006 Act. This places a duty on the Secretary of State to

provide throughoutEngland, to such extent as he considers necessary to meet all reasonable requirements—

(a) hospital accommodation,

(b) other accommodation for the purpose of any service provided under this Act,

(c) medical, dental, ophthalmic, nursing and ambulance services,

(d) such other services or facilities for the care of pregnant women, women who are breastfeeding and young children as he considers are appropriate as part of the health service,

(e) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service,

(f) such other services or facilities as are required for the diagnosis and treatment of illness.

A new concept in NHS legislation is the departure from contiguous area based responsibilities where all residents are covered to membership based organisations based on GP registrations. Under Clause 10(3), four new subsections would be inserted into section 3 of the 2006 Act to deal with it.

The new s.3(1A) added by clause 10 provides that a CCG has responsibility for

(a) persons who are provided with primary medical services by a member of the group, and

(b) persons who usually reside in the group’s area and are not provided with primary medical services by a member of any clinical commissioning group.

So a CCG would not necessarily be responsible for anybody else, such as temporary residents, visitors, or workers who had not registered with a member of the group. This is clear from the other powers in the new sections 3(1B) to 3(1D) added by clause 10. These provisions contain important powers to allow the Secretary of State to make regulations.

The proposed move away from area-based healthcare delivery will be severely detrimental to public health. The effect of the proposed new regulations on public health is uncertain. We say that these powers are too important to be left to regulations.

New subsection (1C) provides that the regulation-making power in new subsection (1B) must be exercised to make it clear that CCGs are responsible for providing emergency care to everyone present in their area. This suggests that CCGs are not automatically to be responsible for emergency care or indeed for the range of services currently provided by PCTs – and implies that the regulations setting out these services will need to be repealed.

Note also new subsection (1D) of this clause, by which regulations may provide that CCGs do not have responsibility for certain people or cases that would otherwise meet the criteria in subsection (1A). This would allow regulations to disapply section 3(1A) in relation to persons of a prescribed description (which may include a description framed by reference to the primary medical services with which the persons are provided) in prescribed circumstances.

These powers would allow the Secretary of State to exclude CCGs from providing certain services and from providing certain primary medical services to certain citizens and visitors in certain circumstances. For example, Regulation 3(1D) would allow the Secretary of State to make regulations which took out of the health service persons receiving medical services under Alternative Personal Medical Services contracts – the one of the three basic GP contract types which is open to multinational health companies, such as United Health.

This discretion to CCGs in the new section 3 inserted by clause 10 as to what services to provide could have an impact on charges for services.

At present, section 1(3) of the 2006 Act reads

(3) The services so provided must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed.

Under Clause 1, this would read

(3) The services provided as part of the health service in England must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed.

If the bill is enacted, services for the care of pregnant women and women who are breastfeeding, for example, under section 3(1)(d) of the 2006 Act, will no longer be provided as part of the Secretary of State’s duty.

They could be provided free as part of the health service but it would be open to a CCG to provide them for a charge outside the health service.

We are concerned that CCGs will provide fewer services and to fewer persons than PCTs and GPs do now.

C  Health policy issues raised by these clauses

Clauses 1 and 10 of the Bill, considered together, demonstrate that the fundamental principle informing the Health and Social Care Bill is the substitution of the current mandatory system with a discretionary one.

The net effect of the Bill’s provisions is that, unlike primary care trusts, which act on behalf of the Secretary of State, CCGs exercise functions in place of  the Secretary of State and in the absence of a clear primary legislative framework. Thus, the Secretary of State is unable to discharge his or her duty to promote a comprehensive health service throughout England because the commissioning bodies which will control the majority (around 80%) of the NHS budget bodies do not collectively have a duty to cover all patients and in addition they have discretion over the services they provide and to redefine eligibility and entitlements to NHS care. As a result there will be growing inequalities in access to care and NHS entitlements and erosion of progressive tax based funding for health care.

Furthermore, the loss of area-based population responsibilities has serious implications for the stability and accuracy of measurement of needs and the equity of resource allocation and funding. This in turn will affect equity of service provision as well as the availability of information for monitoring and to plan for health care needs, services, and health outcomes, all of which are essential to securing a comprehensive service.

Allyson Pollock

David Price

Tim Treuherz

24 October 2011

Professor Allyson Pollock is Professor of Public Health Research and Policy at Queen Mary,UniversityofLondon.

David Price is Senior Research Fellow at Queen Mary,UniversityofLondon.

Tim Treuherz was Head of Legal for Vale of White Horse District Council until he retired.

Health and Social Care Bill 2011

House of Lords – Committee stage, 25 October 2011

BRIEFING ON CLAUSE 1
Prepared by
Allyson Pollock, professor of public health research and policy, Queen Mary, University of London
David Price, senior research fellow, Queen Mary, University of London
Peter Roderick, public interest lawyer
Tim Treuherz, retired head of legal services, Vale of White Horse District Council

22 October 2011
1. Introduction

The Committee stage of the Health and Social Care Bill begins on Tuesday 25 October 2011, with consideration of Clause 1.

Clause 1 impacts on the legal framework underpinning a comprehensive and universal national health service.

The briefing is intended to assist peers supporting any of the amendments designed to restore the current statutory framework, although our preferred option is to omit Clause 1 and revert to the wording of the National Health Service Act 2006.

In three sections below, we outline the legal effect of Clauses 1 and 10 on the Secretary of State’s duties, set out our concerns and questions relating to their impact on patients and services, and conclude with the key health policy issues raised by these clauses.

[The briefing does not discuss the various amendments that have been tabled to Clause 1. Readers are referred to a legal analysis of these undertaken on behalf of 38 degrees. Our preference is to omit Clause 1 and to revert to section 1 of the 2006 Act.]

2. The legal effect of Clauses 1 and 10 on the Secretary of State’s duties

Clause 1 of this Bill proposes to change the fundamental legal basis of the NHS in England which has been in place since 1946. This is unacceptable to many.
It was:
• not mentioned in any manifesto
• not voted for
• not part of the coalition agreement.

Under section 1(2) of the 2006 Act, the Secretary of State must provide or secure the provision of services in accordance with the Act for the purpose of promoting a comprehensive health service which s/he has the duty to promote under section 1(1). Under section 3(1) of the 2006 Act, s/he must provide throughout England, to meet all reasonable requirements, the key NHS services that are listed in that subsection, such as medical, nursing and ambulance services, and hospital accommodation.
Clause 1 proposes to change section 1(2), so the Secretary of State would no longer have the duty to provide or to secure provision of services in accordance with the Act, but would have to exercise his or her functions so as to secure that services are provided in accordance with the Act. In addition, Clause 10 proposes to change section 3(1) so that the Secretary of State’s duty to provide the key NHS services throughout England will be replaced with a duty on the scores – indeed perhaps hundreds – of individual clinical commissioning groups (CCGs) to make arrangements for provision for persons for whom they are responsible.

One of the key problems with these changes – and this was picked up by the Constitution Committee – is the severance problem. If the government has its way, the body with the duty to promote a comprehensive health service will not be the same as the body which has to make arrangements for provision. At the moment, as Lord Woolf said in the Court of Appeal in the Coughlan case, the Secretary of State “has the duty to continue to promote a comprehensive free health service and he must never, in making a decision under section 3, disregard that duty”. The scores of CCGs will not have that duty.

The government has tried to argue in Earl Howe’s letter to Baroness Jay on 10 October 2011 in response to the Constitution Committee that the CCGs will have to have regard to that duty. But the Bill does not say that, and it does not give CCGs that duty.

The government keeps saying that currently the Secretary of State does not actually provide and everything is delegated to the primary care trusts. But this is not the point. Section 3(1) is a unifying duty applying throughout England, and everything flows from that. If that starting point is discarded, then the core part of the current statutory basis for the NHS will also go.

3. What will this mean for patients and services?
The implications for patients and services can be considered in four respects.
Firstly, the Secretary of State’s duty to provide is throughout England, and the PCTs and strategic health authorities are area-based, and these areas are contiguous. The CCGs will be ‘person-based’ or ‘group-based’, largely drawn from GP registrations, but neither the area nor the population are clearly defined. CCGs are supposed to cover all of England (Clause 22: new section 14A(2)), but there is no requirement that within the CCG all their patients live in one particular area, so a CCG area can comprise (say) a part of London, a part of Hampshire and a part of Cumbria. It is impossible to see how planning, monitoring of needs, and equity of access and service use can be safeguarded when the populations are segmented, fragmented and dispersed in this way.
In effect, now, the entire population of a given area is covered by the NHS and PCT areas are contiguous. In future, this will not be the case: it will depend on what each CCG decides.
Under current plans resource allocation formula will change from an area-based formula, to one based on GP registrations (GP lists) with all the problems that will bring. These problems which are well documented include, unstable denominators and numerators due to enrollment, disenrollment of persons and turnover of patients, complex risk adjustment methods, and incentives to risk select or cherry pick (McKee M et al. In defence of the NHS). This will adversely affect public health functions including the measurement of access to services, health service needs and equity of resource allocation and funding (Pollock AM, Price D. Submission to the Delegated Powers and Regulatory Reform Committee, House of Lords 10 October 2011)

Clause 1, in conjunction with Clause 10, will therefore mean that patients in one particular area will not be provided for in the same way that they are at present.
Secondly, each CCG will decide for itself what the reasonable requirements for services of those persons registered are. They will also decide (Clause 10(2)(b)) what services or facilities are appropriate as part of the health service for the care of pregnant women, women who are breastfeeding and young children (section 3(1)(d)); and for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness (section 3(1)(e)). These two discretions given to each CCG mean there will be different provision for different patients with similar needs, depending on each particular CCG.
The government says that this is the case under the PCTs now. But the crucial difference is that currently the core legal and unifying duty of the Secretary of State under section 3(1), linked to section 1(1) by section 1(2), is still in place. Currently everything stems from the Secretary of State’s duty to provide. In future, it won’t.

Thirdly, because of the Secretary of State’s duty to provide, the PCTs are in effect responsible for everybody in their area, underpinned by the resource allocation formula. This will change, and what will happen in future is unclear to us.

Under the NHS Functions Regulations, (The National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002.) PCTs must make sure services are provided for people on GPs lists, and for persons usually resident in its area, or resident outside the United Kingdom who are present in its area, and who are not on GPs’ lists. And under, for example, The National Health Service (General Medical Services Contracts) Regulations 2004, the PCTs prepare and maintain GP lists, and can assign patients to them, subject to a dispute resolution procedure. In other words, although there is never 100% coverage, the intention is that the PCTs ensure that all residents within their geographic area obtain access to GP services and are registered with a GP.
PCTs must also ensure that certain specified services must be provided for the benefit of everybody in a PCT area, namely (i) accident and emergency services and ambulance services, (ii) services provided at walk-in centres, (iii) facilities and services for testing for, and preventing the spread of, genito-urinary infections and diseases and for treating and caring for persons with such infections or diseases, (iv) medical inspection and treatment of pupils, (v) services relating to contraception, (vi) health promotion services, (vii) services in connection with drug and alcohol misuse, and (viii) any other services which the Secretary of State may direct.
In future, a CCG will only be responsible for persons provided with primary medical services by a member of that CCG and those who usually reside in the CCG area (Clause 10(3): new section 3(1A)). Temporary residents, visitors, and workers not on those lists will not be covered. Regulations can be made to extend this (new section 3(1B)), and those regulations must cover everybody in the CCG area as far as facilities and services for emergency care are concerned (new section 3(1C)). Regulations may provide that some persons can be excluded from CCG responsibility, including those provided by a particular type of primary medical services (new section 3(1D)).
We have a number of concerns with new section 3(1A) – (1D), which we have set out below in the form of questions that peers may wish to ask the government:
• Why is CCG responsibility for persons not made definitive on the face of the Bill?
• Who, in future, will have the task of ensuring all residents and temporary residents can be registered with a local GP? And what will happen if GPs refuse to accept, or strike off, patients? Who will allocate problem patients, and patients with learning difficulties, severe disabilities, or complex mental health or physical health problems? What about asylum seekers, and the homeless and those of no fixed abode?
• Why is emergency care to be covered by regulations, not on the face of the Bill? Why are accident and ambulance services not mentioned?
• Will any of the other services currently to be provided for the benefit of all people present in a PCT have to be arranged by the CCGs? It is intended that some services will move with public health services to local authorities, but the government should explain, category by category, what is to happen, and why is each of these services not also on the face of the Bill.
• Why is it necessary to give the government the power to exclude some persons from the health service (new section 3(1D))?
• More specifically, what categories of primary service provider does the government wish to be able to exclude from the health service? For example, new section 3(1D) would allow the Secretary of State to make regulations which took out of the health service persons receiving medical services under Alternative Personal Medical Services contracts – the one of the three basic GP contract types which is open to multinational health companies, such as United Health.

Fourthly, we are concerned that services currently considered part of the health service by PCTs (under direction from the Secretary of State) will in future not be considered as part of the health service by CCGs – namely the six services and facilities referred to above for pregnant women, women who are breastfeeding, and young children, and for the prevention of illness, the care of persons suffering from illness, and after-care. If a CCG so decides, these might fall out of the health service. This would mean that the qualified guarantee of free access in section 1(3) would not apply, and so charges could be made for services that are currently free.
This possibility arises because Clause 1 would amend section 1(3). At present, section 1(3) of the 2006 Act reads: “(3) The services so provided must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed.”
Under Clause 1, this would read: “(3) The services provided as part of the health service in England must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed.”
The proposed new section 1(3) should not be supported, and the government asked:
• How will the government prevent services that are currently free for pregnant women, young children, and others (as above) from being charged for?
4. Health policy issues raised by these clauses
Clauses 1 and 10 of the Bill, considered together, demonstrate that the fundamental principle informing the Health and Social Care Bill is the substitution of the current mandatory system with a discretionary one.
The net effect of the Bill’s provisions is that, unlike PCTs, which act on behalf of the Secretary of State, CCGs exercise functions in place of the Secretary of State and in the absence of a clear primary legislative framework. Thus, the Secretary
of State is unable to discharge his or her duty to promote a comprehensive health service throughout England because the commissioning bodies which will control the majority (around 80%) of the NHS budget bodies do not collectively have a duty to cover all patients and in addition they have discretion over the services they provide and discretion to redefine eligibility and entitlements to NHS care. As a result there will be growing inequalities in access to care and NHS entitlements and erosion of progressive tax based funding for health care.
Furthermore, the loss of area-based population responsibilities has serious implications for the stability and accuracy of measurement of needs and the equity of resource allocation and funding and service provision. This also affects the availability and nature of information to plan for health care needs and services and for monitoring access, service use, and health outcomes, all of which are essential to securing a comprehensive service.

SPEECH FOR RCGP CONFERENCE 2011

20^th OCT FINAL

“Like blood, health care is too precious, intimate and corruptible to entrust to the market”

Woolhandler & Himmelstein “When Money is the Mission –The High Cost of Investor-Owned Care,” New England Journal of Medicine. 1999

Thank you for all your support over the last year.

I’d like to tell you a story about a GP, a radiologist, a pathologist and a psychiatrist.

Sounds like the first line of a joke, but it isn’t.

The GP was me.

We were having dinner with our children at an open-air opera in Germany. The place was packed.

Everyone was having a good time – when the dreaded happened.

Out of the corner of my eye, I saw an elderly man fall headfirst into his plate.

The four of us looked at each other.

We knew our meal was over – and we swung into action.

Each working to type.

The psychiatrist tending to the man’s wife.

The radiologist searching for a defibrillator.

The pathologist pounding on the poor man’s chest.

Me giving mouth-to-mouth.

From the way he keeled over, it was obvious he was dead.

But we knew there was still plenty for us to do.

We had to comfort his distressed wife.

And we had to keep the crowd calm for 30 minutes, till the paramedics arrived.

When it was over my 15-year-old son turned to me and said,

“I want to be able to do that.”

“Do what?” I asked him.

“Care for people”, he said.

His reply surprised me. 

Not just because impressing teenage children isn’t easy.

But because what impressed him wasn’t the glory and the drama of our public display of medical skill.

No. What impressed him was our simple act of caring.

Caring for a sick man. Caring for the man’s wife.

And caring for the people in the crowd.

That’s what inspired my son.

And that’s how my father inspired me a generation ago. 

It wouldn’t be allowed now, but he used to take me with him on home visits in the post-war slums of Peterborough.

I watched him treat children with measles.

And care for the dying in their homes.

That’s when I knew I wanted to be a doctor.

Why did I tell you that story?

Because I believe each of us has a story about what inspired us to become a doctor.

A story that made us what we are today.

A story that lights our way to the future.

What’s yours?

Our stories have never been more important. 

Especially now, when our profession is under pressure to replace the language of caring with the language of the market.

This is why I told you my story

We need to remind ourselves why we entered this honourable profession in the first place.

When I come home from work and my son asks me what sort of day I’ve had, on a good day I want to be able to say ‘I saved a life’, not… ‘I met budget’.

Of course, it’s important that GPs are mindful of resources.

We have a responsibility to spend the public’s money carefully – and wisely. That goes without saying.

But we must never lose sight of the patient as a person, at the heart of our practice. Patients are not “commodities” to be bought and sold in the health marketplace.

In this brave new cost-driven

Competitive

managed-care world,

I worry about the effect the language of marketing is having on our clinical relationships.

It’s changing the precious relationship between clinician and patient into a crudely costed financial procedure.

Turning our patients into aliquots of costed tariffs.

And us into financial managers of care.

We are already embracing the language of the market when we talk about: for example

–         Care pathways

–         Case management

–         Demand management

–         Productivity

–         Clinical and financial alignment

–         Risk stratification

We’re already accused of making “inappropriate referrals” whenever we put what’s best for our patients above what’s best for saving money. 

We’re being forced to comply with referral protocols and so-called rules-based medicine, in an effort to control medical care before it’s delivered.

Referral management systems – already widespread – places a hidden stranger in the consulting room.

A hidden stranger who interferes with decisions that should be made by GPs in partnership with their patients.

Insulting terms, like “frequent flyers”, are being used to describe people who are sick and need our care and attention.

The Archbishop of Canterbury attacked what he described as “the quiet resurgence of the seductive language of the deserving and undeserving poor”.

If we don’t watch out, the deserving and undeserving poor could soon be joined by the deserving and undeserving sick. 

I worry we’re heading towards a situation where healthcare will be like a budget airline.

There’ll be two queues. One queue for those who can afford to pay, and another for those who can’t.

Seats will be limited to those who muscle in first.

And the rest will be left stranded on the tarmac.

This can’t be right. After all, no one chooses to be sick.

We must hold fast to the principle that good healthcare should be available to all, regardless of wealth.

Of course, there have always been health inequalities. But my concern is that despite all the talk of reducing these inequalities, the size looks set to increase, not decrease.

So what about GP commissioning?

Will it help us reduce health inequalities?

And will it enable us to deliver better care to our patients?

People often tell me that GPs make good commissioners because of the population-focus we bring to care.

After all as a profession we see 300 million patients per year.

If anyone can be said to have their finger on the pulse of the nation, surely it’s us.

It’s an argument I’ve supported for decades.

But we must tread carefully in this brave new world.

And do everything in our power to make sure it’s the public’s pulse we have our fingers on… not the public’s purse!

Which is why I believe that big decisions – decisions like whether to close hospitals – should be the responsibility of governments, not GPs.

It’s the government’s job to decide how much we invest in healthcare – and what services the NHS should provide.

Of course we should do our bit – we already do, by sitting on NICE, SIGN and other committees.

But governments should have ultimate responsibility for decisions about rationing healthcare, not GPs – guided and advised by us, for sure, but finally the decision must be taken by a publically accountable body, not individual doctor or a group of doctors

We don’t shirk our responsibilities.

Governments shouldn’t shirk theirs either.

Rhetoric about putting doctors in charge doesn’t convince me.

In this brave new world it’s the market – led by CEOs, share-holders and accountants – that will be in charge, not doctors.

We mustn’t allow ourselves to be compromised.

Our first responsibility must be to the patient in front of us.

Our next is to the patients in the waiting room.

After that comes our responsibility to those on our list.

And then to our local community, and finally the wider population.

In that order.

I’ve always said that Good Commissioning is about being a good GP. 

Its about understanding how we use resources fairly and effectively. 

But whatever happens we must make sure that the commissioning agenda isn’t allowed to compromise our relationship with the patient in front of us.

We must not risk long-term benefits being sacrificed in favour of short-term savings.

How soon will it be, for example, before we stop referring for cochlear implant? –

An expensive intervention, but one that in the long term, saves enormous amounts of public money.

But not a saving from our budget.

How long will it be before we find ourselves injecting a patient’s knee joint – at Injections-R-us plc – instead of referring to an orthopaedic surgeon for a knee replacement?

And, once referred for hospital treatment, patients must be able to trust their doctors to base care on need and not on making money for the hospital.

If you think this is far-fetched…

The Economist calculated that in 2009 the market-driven, corporate-dominated US health care system generated around $300 billion dollars worth of charges for unnecessary care.

This represented 10-12% of US healthcare spending for that year.

• This means women having unnecessary hysterectomies
• This mean men having unnecessary angiograms
• This means adolescents being given antidepressants for no reason

Do we want that here?

As doctors we risk being doubly compromised.

We’ll have to choose between the best interests of our patients and those of the commissioning group’s purse.

And, to make matters worse, we’ll also be rewarded for staying in budget – and not spending the money on restoring that child’s hearing.

It goes by the quaint title of the “quality premium”.

Now that’s what I call a perverse incentive.

What will you do when you’re presented with choices like these? Because you will be!

We are told that one of the reasons Clinical Commissioning is being introduced is to reduce the spiralling costs of health care.

But if the American experience is anything to go by, the opposite will be true.

Paul Ellwood one of the founders of the American Health Maintenance System in the 1970s, had this to say in 1999 about what happened there…

 “A series of perverse economic incentives were instituted

from top to bottom

so as to seriously compromise the independent clinical judgments of physicians

and other health professionals…..

[and often to turn the pocket-book allegiance of the health care servers against the interests of their patients, as with gag rules, bonuses for not referring and the like].

He describes Health Maintenance Organisations (which have the same function as our Clinical Commissioning Groups) as finding themselves in…

“A deepening swamp of commercialism over service,

of profiteering over professionalism,

of denial or rationing of care where such care is critically needed,

of de-personalization of intensely personal kinds of relationships”

Is this what we want here?

The NHS can always be improved, but we must do it very carefully, so as not to lose what we and previous generations of doctors like my father have achieved.

As Iona Heath reminded us in her spectacular Harveian Oration on Tuesday the reality is that for more than 60 years the NHS has delivered high quality care for most patients, most of the time.

Can the market achieve similar outcomes?

There is plenty of evidence that market driven health services lead to:

• Limited choice
• Escalating costs
• Reduced quality

And let’s remind ourselves – the biggest health market in the world, the US, has achieved the remarkable double whammy of having the most expensive system in the world and the greatest health inequalities.

It comes near the bottom of the league for most health outcomes – and boasts an unnecessary death every 12 minutes.

So what can we do?

It would be easy to feel discouraged.

But I know we all want the best for our patients, we always have and we always will.

And as long as we do what we know to be right for patients, we will keep their trust.

And we can do this by ensuring that the systems we work in continue to allow us to work ethically and always as our patients advocates.

We must resist the encroachments of the market wherever it threatens our freedom to serve our patients and our communities. This is what those of you leading commissioning must promise us.

We have to get the actuaries, risk-adjusters and share-holders out of the health service, and put clinicians (not just medics) back in charge of it.

And then we need to bring in management staff to advise and assist us. 

Staff who are truly committed to the values of our NHS.

We all became doctors because we wanted to make a positive difference to people’s lives.

It would be hard to devise a better and more inspiring way of achieving this than through the provision of excellent general practice care, within a universal health service. 

In times of austerity, we need to come together so that we can collaborate, cooperate and innovate… not compete against each other.

You expected me to talk about the Health Bill in England, but this Bill, like other reorganisations across the whole of the United Kingdom will come and go.

Instead I have chosen to talk to you about what matters to our patients, now and for ever –  a doctor who cares.

I am convinced that there are enough of us to create a revolution in health care. Not a revolution that the Government is talking about in the Bill –in structures, payments and competition.

But a revolution in values.

 One that will provide excellent care to our patients.

Where in every interaction we pinch ourselves at the honour we have been given to be privy to their secrets and pain –

and as Don Berwick says:

“being allowed to be guests in their lives”

My message to you is simple and clear. My son wanted to do medicine because of what he saw me and my friends do – care

If we want to keep serving the best interests of our patients, we must reject the language of the market and embrace the language of caring.

And – keep telling our stories…

Thank you.

Prime minister wrong to claim we support Health Bill, say public health experts

In defence of the NHS: why writing to the House of Lords was necessary

The prime minister was wrong to claim we support Health Bill, say public health experts in this week’s BMJ.

Last week over 400 public health doctors, specialists, and academics from across the country wrote an open letter to the House of Lords stating that the Health and Social Care Bill will do “irreparable harm to the NHS, to individual patients and to society as a whole,” that it will “erode the NHS’s ethical and cooperative foundations and that it will not deliver efficiency, quality, fairness or choice.”

The prime minister claimed that the letter actually supported aspects of the Bill, while the secretary of state was dismissive, maintaining that people signed it without reading it, and that it was “politically motivated” and unsupported by “a shred of evidence.”

These claims were wrong, argue leading public health experts today.

There was no qualified support for the Bill, they say. Nor did signatories write in a political capacity; they wrote in their professional capacity and with the public interest in mind. Nor are public health professionals alone in having concerns: the public, the BMA, and many of the royal colleges continue to express deep and continuing concerns.

There are many problems with the Bill, they warn, such as abolishing direct accountability of the secretary of state to secure comprehensive care for the whole population and the mechanisms and structures for securing that duty. The Bill will also usher in a new era of commercialisation, they add, handing over a greater control over public budgets to the dictates of the market.

“We believe that the majority of healthcare professions reject this proposed transformation; and are aware of the clinical, professional, and ethical shortcomings of market based health systems such as those that exist in the United States,” they write.

They conclude: “The secretary of state has called for a debate based on evidence. We agree. But this requires transparency about the evidence base and the intentions that have shaped the Bill. So far, the proposed structures do not conform to the goal of a universal and equitable health service, free at the point of delivery and accessed on the basis of need and not ability to pay.”

Letter to the Independent yesterday

As doctors in England, we are writing to express our conviction that the Health and Social Care Bill will irreparably undermine the most important and admirable principles of the National Health Service, and to appeal for its rejection by the House of Lords.

Because it is universal and comprehensive, and publicly accountable, and because clinical decisions are made without regard for financial gain, the NHS is rightly regarded all over the world as the benchmark for fairness and equality in healthcare provision.

The transfer of services to private, profit-making companies will result in a loss of public accountability and a damaging focus instead on low-risk areas that are financially profitable. A confused patchwork of competing providers will deliver a fragmented and inequitable service, and any reliance on personal health budgets or insurance policies will increase inequality.

Because there will be a financial incentive for providing treatment, patients will be over-treated, the potential costs of which are limitless. The possibility of the commissioning role being outsourced to the private sector is also of deep concern.

In forcing through this ill-conceived Bill, without an electoral mandate and against the objections of healthcare professionals, the Government is also ignoring overwhelming evidence that healthcare markets are inefficient and expensive to administer.

The public has been misled by claims that no major reorganisation of the NHS would be undertaken, by repeated denials that what is happening represents privatisation, and by suggestions that the Bill enjoys the support of the medical profession. We do not accept that “things have already gone too far”. The enactment of some of the Bill’s proposals has been premature and possibly unlawful, but some of its most damaging aspects may still be mitigated. We believe that on moral, clinical and economic grounds, the Health and Social Care Bill must be rejected.

Dr Jonathan Folb

Consultant Microbiologist, Liverpool

Dr Clive Peedell

Co-Chair NHS Consultants’ Association and Member of BMA Council and Political Board, Consultant Clinical Oncologist, Middlesbrough

And more than 1,000 others. Click here to see the full list of signatories.

Letter to The Times today

Sir, We write as paediatricians and child health professionals in the NHS, academia and NGOs to express our concerns about the Health and Social Care Bill.

Peter Connolly (“Baby P”) died because too many unco-ordinated and fragmented services, staffed by too few and inexpert staff, were involved in his care. The current proposals designed to increase provider plurality will amplify these deficits.

Children and young people are especially susceptible to the heightened commercialisation and marketisation ushered in by this Bill. The inevitable fragmentation of NHS services will undermine our abilities to protect children at risk from neglect and abuse, and compromise the care of children with serious illnesses.

We are concerned that moving public health further from the front-line NHS jeopardises our ability to continue improving children’s health services. And we are alarmed by the influence of commercial industry on public health policy-making, which diminishes our efforts in tackling child health determinants such as obesity.

The Health and Social Care Bill will be bad for child health and children’s services in the NHS. The Government claims that the reforms have the backing of the health professions. They do not.

It is our judgment that the Bill will erode the NHS’s ethical and co-operative foundations and that it will not deliver efficiency, quality, fairness or choice. We urge the House of Lords to reject this Bill.

Professor Sir Al Aynsley Green; Professor Stuart Logan; Professor John Warner; Professor Neil Marlow; Dr Ingrid Wolfe; Dr Simon Lenton; Dr Sara Hamilton; Dr Aasif Khan; Dr Agnes Lakner; Dr Alan Gibson; Dr Alasdair Bamford; Dr Alexandra Pledge; Dr Alexandra Smith; Dr Alice Rouche; Dr Alison Mott; Dr Amanda Cundy; Dr Amanda Dauncey; Dr Andrew McArdle; Dr Andrew Robins; Dr Angela Hume; Dr Anil Gupta; Dr Anna Baverstock; Dr Anne Aukett; Dr Anne Mason; Dr Anne-Lise Goddings; Dr Anthony Kaiser; Dr Atul Gupta; Dr Avril Washington; Dr Barbara Golden; Dr Basu Roy; Dr Beatrice Cooper; Dr Belinda Bateman; Dr Billy White; Dr C. Harikumar; Dr Caroline Bodey; Dr Catherine Clapton; Dr Catherine Pattinson; Dr Cathy Troupp; Dr Charlotte Elder; Dr Charlotte Wattebot O’Brien; Dr Chloe Johnston; Dr Chloe Macauley; Dr Christine Duval; Dr Claudia Gore; Dr Cliona Ni Bhrolchain; Dr C.P. White; Dr Craig Knott; Dr David Bennett; Dr Debbie Sell; Dr Deborah Christie; Dr Deborah Hodes; Dr Dibble; Dr Dieudonne Birahinduka; Dr Dougal Hargreaves; Dr Ewoud Bos; Dr Ezam Mat Ali; Dr F. Leah; Dr Fawzia Rahman; Dr Feuchtwang; Dr Fiona Hampton; Dr Fiona Hikmet; Dr Fionnghuala Mills; Dr Gareth Penman; Dr Gary Ruiz; Dr Gill Gorell Barnes; Dr Gill Turner; Dr Gopinathannair Harikumar; Dr Hanna Erickson; Dr Hannah Baynes; Dr Harry Egdell; Dr Heather Mackinnon; Dr Helen Bantock; Dr Helen Bedford; Dr Helen McCullagh; Dr Helen Palmer; Dr Hilary Klonin; Dr Hilary Wyatt; Dr Hoong Wei Gan; Dr Huda al Hadithy; Dr Hugh Stewart; Dr Ian Male; Dr Indrani Banerjee; Dr Intan Yeop; Dr Jan Welbury; Dr Jane Haley; Dr Jane Hassell; Dr Jane Hume; Dr Jane Lyons; Dr Jane Ritchie; Dr Jane Simpson; Dr Jane Teper; Dr Janet E. McDonagh; Dr Jayanta Banerjee; Dr Jeff Debelle; Dr Jethro Herberg; Dr Jeza Salvo; Dr Jill Painter; Dr Joanne Beckman; Dr Johanna Reed; Dr John Hutchins; Dr Joia de Sa; Dr Jonathan Wyllie; Dr Julie Wilson; Dr Juliet Penrice; Dr June Thoburn; Dr Karen Ansell; Dr Karen Horridge; Dr Karl Rakshi; Dr Kathy Hawley; Dr Kelsey Jones; Dr Kerry Robinson; Dr Kim Holt; Dr Kirsty LeDoare; Dr Kumudini Gomez; Dr Lally McDermott; Dr Lauri-Ann Van der Poel; Dr Lee Hudson; Dr Linda Alderson; Dr Lingan; Dr Louisa Draper; Dr Lucy Aldridge; Dr Lynsey Bennett; Dr Maggie Bruce; Dr Malgorzata (Gosia) Radomska; Dr Mando Watson; Dr Mandy Rose; Dr Manish Sinha; Dr Maria Bredow; Dr Mark Bagott; Dr Mark Hunter; Dr Mary Gainsborough; Dr Mary Rudolph; Dr Matthew Thompson; Dr Max Davie; Dr Melanie Parker; Dr Mervyn Loi; Dr Michael Quail; Dr Mike Kidd; Dr Mitch Blair; Dr Nagendra; Dr NagulanThevarajan; Dr Naomi Breese; Dr Naomi Richman; Dr Naomi Webber; Dr Natasha de Vere; Dr Neal McCathie; Dr Neeta Patel; Dr Nick Finer; Dr Nick Lessof; Dr Nicola Cleghorn; Dr Nicola Morgan; Dr Nicole Horwitz; Dr Nigel Speight; Dr Nkem Onyeador; Dr Olie Chowdhury; Dr Pam Zinkin; Dr Patrick Oades; Dr Paul Carter; Dr Paul Farrant; Dr Paul Gringras; Dr Penny Gibson; Dr Peter Erhardt; Dr Peter Lachman; Dr Peter Poore; Dr Peter Sidebotham; Dr Philip Ind; Dr Philip Minchom; Dr Prabhat Gupta; Dr Quentin Spender; Dr Rachel Brocklebank; Dr Rachel Howells; Dr Rajendra Mahendrakar; Dr Raoul Blumberg; Dr Rashnik Ghalay; Dr Raymond Brown; Dr Renuka Dias; Dr Richard Tomlinson; Dr Rod Skinner; Dr Rossa Brugha; Dr Sam Behjati; Dr Sarah Eisen; Dr Sarah Morris; Dr Saul Kaufman; Dr Sebastian Kraemer; Dr Seema Sukhani; Dr Sharma; Dr Sharon D’Souza; Dr Sharon Taylor; Dr Sim; Dr Simon Wilkinson; Dr Sophie Khadr; Dr Stefania Vergnano; Dr Stephanie Kirk; Dr Stuart Murray; Dr Susan Allen; Dr Susan O’Halloran; Dr Susie Minson; Dr Tagore Charles; Dr Therese Bennett; Dr Thomas Day; Dr Timothy Watts; Dr Tony Waterston; Dr Tracy Ellenbogen; Dr Tristan J. Barber; Dr Tukmachi; Dr Vinthagen; Dr W.H. Lamb; Dr Wren Hoskyns; Dr Wynne Leith; Dr Ximena Poblete Qasim Chowdary; Mr Colin Dyer; Mr John Beavis; Mr Mark Carter; Mr Shlobaln Corsle; Ms Angela Lewis; Ms Annie Souter; Ms Carol Graham; Ms Carol Jones; Ms Carolyn Young; Ms Christine Bidmead; Ms Christine McDermott; Ms Christine Okeeffe; Ms Dolores D’Souza; Ms Emma Kardani-Zadeh; Ms Fiona Henley; Ms Fiona Napier; Ms Freda O’Driscoll; Ms Geraldine Walsh; Ms Helena Jenkins; Ms Janine Hackett; Ms Jean Troughton; Ms Jenny Pedley; Ms Lindsay Hamilton; Ms Lizzy Marks; Ms Lucy Hinds; Ms Maggie Fisher; Ms Rachel Pailes; Ms Rebecca Mortimer; Ms Sarah Cooper; Ms Susan Knights; Ms Vasu Shah; Professor Alan Emond; Professor Allan Colver; Professor Ed Peile; Professor Elisabeth Paice; Professor Imti Choonara; Professor John Wood; ProfessorSarah-Jayne Blakemore; Professor Shakeel A, Qureshi; Professor Stephen McMahon; Sir Terence English

Dear Honourable members of the House of Lords,

As public health doctors and specialists from within the NHS, academia and elsewhere, we write to express our concerns about the Health and Social Care Bill.

The Bill will do irreparable harm to the NHS, to individual patients and to society as a whole. It ushers in a significantly heightened degree of commercialisation and marketisation that will fragment patient care; aggravate risks to individual patient safety; erode medical ethics and trust within the health system; widen health inequalities; waste much money on attempts to regulate and manage competition; and undermine the ability of the health system to respond effectively and efficiently to communicable disease outbreaks and other public health emergencies.

While we welcome the emphasis placed on establishing a closer working relationship between public health and local government, the proposed reforms as a whole will disrupt, fragment and weaken the country’s public health capabilities.

The government claims that the reforms have the backing of the health professions. They do not. Neither do they have the general support of the public.

It is our professional judgement that the Health and Social Care Bill will erode the NHS’s ethical and cooperative foundations and that it will not deliver efficiency, quality, fairness or choice. We therefore request that you reject passage of the Health and Social Care Bill.

Yours sincerely,

Approximately 400 senior public health doctors.

For the letter that appeared in The Telegraph yesterday and a full list of signatories click here and scroll down

Editorial in the The Telegraph

Excellent comment piece in The Telegraph by David McCoy, one of the authors of the letter.

Guardian report “Experts including 40 directors of public health say government’s health and social care bill will cause ‘irreparable harm'”

BBC news report, “NHS changes to cause irreparable harm”

One of the authors, Professor Martin McKee CBE exchange of views with Andrew Lansley on BBC London: http://bbc.in/ogz0u5 (starts at 8.40 mins)

ITN news

Independent

Lord Owen explains why he is demanding that the Government put parts of the Health and Social Care Bill through a select committee in the House of Lords.

(From Politics Home)

The reason for referring parts of the Bill to a Select Committee are well illustrated if we examine the changes relating to the duties of the Secretary of State for Health. In this Bill they are changed and many lawyers believe substantially reduced. Yet at the same time the Bill establishes a massive new Quango – the NHS Commissioning Board. Sensible people can accept that in any decentralisation of power there has to be a measure of managerial freedom but equally, sensible people will feel that the Secretary of State and Parliament has to have special powers, some of them probably new powers, to deal with this situation. This complex area of democratic control and decentralisation must lie at the core of House of Lords scrutiny and few would deny that a Select Committee, able to hear evidence with their own Parliamentary draughtsmen and empowered to return that section of the Bill to the floor of the House of Lords in an amended form for their consideration, is the most powerful way of proceeding. To ensure that this is not seen as a blocking mechanism the motion instructs the Select Committee to report back on these Clauses referred on part 1 of the Bill by the time the House resumes after Christmas on 10 January 2012 and we have also instructed that all the clauses referred to the Select Committee should be reported back to the House before the end of February. It is perfectly possible if agreed to commence discussion in parallel on the floor of the House on the selection of amendments of those parts of the Bill that are not referred to the Select Committee.

Another example of matters referred to a Select Committee is Monitor. This is an existing organisation that is about to be transformed. Is it really acceptable that the bulk of the powers of this Quango should be introduced by Regulation and not put into the substance of the Bill? Again, the complexity of its new definition of its powers, only conceded a few weeks ago, need to be reappraised and judged as a whole – something far better done initially by a Select Committee and then returned to the floor of the House.

The House of Lords is a pragmatic grouping of men and women, many of whom in various ways have considerable knowledge about the NHS. The commissioning proposals have already controversially been largely introduced following Second Reading in the House of Commons. Many people feel now that this is fait accompli and since they have been revised by the Forum process, there is a need within the NHS for the Lords to establish clarity after due consideration.

For that reason we have not sought to delay debate on these matters on the floor of the House, nor on Trusts hospitals. Indeed over 64% of the Health and Social Care Bill will under this amendment proceed in the traditional way on the floor of the House. It is also clear that what we are proposing is not a blocking mechanism in that we specifically instruct the Select Committee to report as early as 10 January 2012, when the House resumes after the Christmas Recess, on those Clauses in Part 1 which relate to the duties of the Secretary of State and before the end of February on all the remaining Clauses.

We will be discussing the wording of the amendment between now and 10 October when it has to be in its final form to see if the Select Committee deliberations can be brought forward in any way. The terms of the amendment it is open to the Select Committee to report earlier if this is feasible.

Lord Rea (an ex-GP) promises to table amendments to ‘wreck the health bill’ Pulse.

What you can do:

Adopt a Peer. Use this to be allocated a Peer and write to them about the health bill. (I used this and wrote to Lord Haskins and received a hand-written reply)

Peer Pressure. Use this to contact libdem and crossbench peers to vote against the health bill

If you are a member of any of the other professional colleges, GPs, physicians, surgeons, etc. a similar letter would send a very strong message to the peers.

The point of patient choice is that it demonstrates that we as doctors treat our patients with dignity and respect, as adults capable and willing to be involved in decisions made about their medical care.

Patient choice has an intrinsic value. By involving patients in their care and not merely caring for them, I am respecting their autonomy. The intrinsic value of patient choice lies not merely in the choice itself, but in the process by which the choice is made. This process involves exploring my patients’ stories, their ideas and values, hopes, fears and expectations, not only about what they want to do, but what they understand of their symptoms and their illness. It is a two-way process. Patients ask me questions, some of them very similar to my own, ‘what am I trying to achieve? What are my hopes, fears and expectations?’ This is how doctors and patients make sense of symptoms, deal with a disease and come up with a shared understanding and make a plan. With some patients (and some doctors) this is easier than others. My patients include many who don’t speak English and others who have cognitive impairments or overwhelming anxiety. Because they have difficulty expressing themselves, finding out what they want is difficult. Up to 50% of my patients’ symptoms defy medical explanation and in these cases it is helpful for doctors to think in terms of ‘medically unexamined stories’ and spend more time searching for clues.

The process of patients and doctors ‘getting to know’ eachother and working through frequently complicated and often uncertain healthcare choices is at the heart of medicine in general and general practice in particular. It depends on a relationship of trust which comes from continuity of care. It is a sophisticated process and it is now a significant part of postgraduate training for GPs.  In the last 30 years the training of doctors has improved significantly, with increasing emphasis on patient autonomy as an ethical principle and communication skills as an essential clinical skill. At the same time the amount of information given and available to patients has increased and as a result, patients and doctors, now more than ever are co-producers of care.

When I fractured my scaphoid last year, the orthopedic surgeon recommended surgery, but I opted to wait and see. What mattered to me was that the surgeon respected my opinion even though we disagreed. Patient choice is not about making the best medical or surgical decision, but about respecting the patient’s wishes. Fortunately my fracture healed. But just because patients want to be listened to it doesn’t follow that they always want to make the final decision, many want the doctor to tell them what to do. (see this excellent article from the NY Times about doctors making decisions for their patients) There is a risk that patient choice, not properly understood as a process but as a goal leads us to abandon patients when they need us most.

Choice about where patients are treated has always been part of the NHS. Twenty years ago a GP could refer a patient to any NHS hospital. The reason this is no longer the case is that in the last 20 years an internal market has been introduced with expensive administrative barriers in the way. Attempts to extend patient choice within this system are hugely complicated and expensive. It is one of the main reasons that administration costs in the NHS have risen from approximately 5% to 14% of the budget. The absurdity of the purchaser-provider split that underpins this is explained in another blog post.

Patient choice is written through the NHS reforms like a stick of Brighton Rock, but it is not the patient choice I have described above. Proponents of NHS reform talk about patients choosing where they will get their care rather than why those decisions are important or how they are made. The NHS reforms are built upon the naive theory that patient choice will drive up quality because patients will choose the best quality healthcare providers, forcing lower quality providers to improve their care or go bust through lack of business.

There are several practical problems with this theory, best summarised in a blog by Ian Greener, What would the NHS have to look like for competition to work?

More profoundly, if my patient chooses to have her chemotherapy close to where her children live so that they can help look after her, she has every right to expect the same standards of care in Southend that she gets in Hackney, because she is still being cared for by the NHS. She does not, and should not expect that her choice might lead to substandard care. The responsibility for quality, ultimately rests with the Secretary of State, which is why the duty to provide and secure NHS services must remain there and not be delegated to less accountable bodies.

But there is an even more profound objection. Patient choice, understood in the terms of NHS reform does not have an intrinsic value, it has a ‘utility, or instrumental value’. Instead of being integral to patient dignity and autonomy, choice is being used as a tool for quality improvement and cost containment. The philosopher Emmanuel Kant defined human dignity as the intrinsic worth of a person. Respect for dignity means that one should “Act in such a way that you treat humanity, whether in your own person or in the person of any other, always at the same time as an end and never merely as a means to an end”.

This report from the NHS Competition and Cooperation Panel states,

The over-arching theme was the belief that choice and information were the key drivers of competition and innovation in healthcare markets, improving patient outcomes and efficiency in patient care.

The Secretary of State, Andrew Lansley said,

Of course, patient choice implies competition…there are areas where there is already strong demand for more choice – such as community services.  This is where we will begin to introduce any qualified provider

The Kings Fund produced a report last year, Choosing a high-quality hospital, the role of nudges, score-card design and information. It explored tools to make sure patients chose the best quality hospital.

The decisions patients ultimately make about their care can have profound consequences, and may involve personal factors that have nothing to do with the actual or percieved quality of care.They must be free to make choices that may go against medical advice. Furthermore most of their choices are about factors other than hospital quailty; convenience, past experience, personal values and the recommendation of friends or professionals are more important for most patients than objective assessments or league tables. For these reasons, patient choice is a poor proxy for quality and an unsuitable tool for driving change.

Patient choices are integral to dignity and respect and are at the heart of medical ethical principles and the doctor-patient relationship. This is why doctors are so sensitive to criticism that we do not care about patient choice. The reason so many of us who care for patients every day object so strongly to the way that patient choice is framed in the NHS reforms, is that patients and their choices are not being treated as ends in themselves, but merely as means to an end; they are to become subservient to the goals of market based competitive healthcare.

Reference material:

Patient choice and narrative ethics. John Launer. Choice isn’t what you think it is.

Patient Choice: Can Consumers Direct Healthcare? Excellent, detailed (73page) report

Government claim that patient choice saves lives is based on flawed research. Allyson Pollock and others. Link to original Lancet article.

The choices patients make

The choices patients don’t make

Patients may vary in their desire for involvement in decision making in consultations. Doctors need the skills, knowledge of their patients, and the time to determine on which occasions, with which illnesses, and at which level their patients wish to be involved in decision making. Do patients wish to be involved in decision making in the consultation? A cross sectional survey with video vignettes. BMJ

The Department of Health Consultation on patient choice

Patient choice: How to haggle with your doctor, lessons from America

Responses to ‘your views: Choice & competition’ May 27 See: 6.41 etc http://healthandcare.dh.gov.uk/your-views-choice-and-competition/

Some ‘choice’ Andrew Lansley quotes: http://www.bbc.co.uk/news/health-11566123

Shared Mind: Communication, Decision making and autonomy in serious illness Brilliant article exploring the issues I have discussed in more detail.

Shared decision making

Having more choices, on the surface, appears to be a positive development; however it hides an underlying problem: faced with too many choices, consumers have trouble making optimal choices, and thus as a result can be indecisive, unhappy, and even refrain from making the choice. Overchoice.

The Tyranny of choice, Salecl: “The idea of choosing who we want to be and the imperative to ‘become yourself’ have begun to work against us, making us more anxious and more acquisitive rather than giving us more freedom”

In a society geared towards the individual, and dominated by consumerism and celebrity, we are constantly encouraged to choose a better life for ourselves. The weight of each choice and the super-abundance of options can cause crippling anxiety and we defer to others to make the right choices for us. When we do get what we want, fulfilment is swiftly replaced by dissatisfaction and desire for a better option.

Barry schwartz “…what seems to contribute most to happiness binds us rather than liberates us”

Sheena Lyengar Ted Talk

How do patients choose physicians?

The impact of patient choice of provider on equity

Patient choice and the organisation and delivery of health services

Patient choice and equity in the British National Health Service

The claim for patient choice and equity

How patient choice can work, Ian Greener

Hposital outcome data is too flawed for patients to use it to make choices. Academic Health Economists blog.

Do patients want a choice and does it work?

Equitable Choices for Health IPPR report

Patient choice how patients choose and providers respond, Kings Fund

2007 NIHR/SDO Research document http://www.sdo.nihr.ac.uk/files/adhoc/80-research-summary.pdf  evidence from the USA suggests that vulnerable patients, including those from black and other minority ethnic groups are increasingly excluded as a result of extending choice (Klassen, 2002). Increased inequity is a risk unless the choice policy includes a means of targeting disadvantaged groups, including older people, those who are less educated, those on low incomes and ethnic minority groups, to prevent such exclusion (Health Link, 2004; Which?, 2005).

Update 01.02.2011