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The Secret Nail in the NHS Coffin


Posted on 21 March 2011

tory_nhs_plan.jpgSometimes a picture is worth a thousand words, and the photograph on the left – taken covertly last weekend at a top secret boot camp for Tory operatives soon to be charged with ‘fixing’ the NHS – tells us only too clearly what the Tories have in mind for our health service. But illuminating as such images are, to gain a fuller picture we have also to look at the legal framework on which such proposed activities hang, and the legal framework on which the National Health Service hangs is the National Health Service Act 1946, and its derivatives, temporal and spiritual, including the National Health Service Acts 1977 and 2006, and most recently the proposed Health and Social Care Bill, currently at committee stage before Parliament.

The first notable change is the name: gone are the references to ‘National’ and ‘Service’; instead we now have ‘Health’, conveniently bundled with that great Tory fiscal irritation, ‘Social Care’. At a stroke, the National Health Service has lost its special status, and been teamed up with just another drain on the public purse.

The change in name heralds a vast raft of changes in the way the health service will be funded and run, many of which have been aired here and elsewhere, but today Dr No wants to focus very directly on the spiritual heart of the Bill, where the global extent, purpose and responsibilities of the health service, and its minister, are defined. Unsurprisingly, these matters are covered right at the beginning, in the first clauses at the start of Part I. Let us review how the wording has evolved over the years.

The original and first Act – the one that established the NHS – is admirably clear about its admirable aims: (note: emphasis added):

National Health Service Act 1948

Duty of Minister

1.–(I) It shall be the duty of the Minister of Health (hereafter in this Act referred to as ‘the Minister’) to promote the establishment in England and Wales of a comprehensive health service designed to secure improvement in the physical and mental health of the people of England and Wales and the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services in accordance with the following provisions of the Act”.

(2) The services so provided shall be free of charge, except where any provision of the Act expressly provides for the making and recovery of charges.

The 1948 Act is perfectly clear: the Minister has a duty to provide (or secure effective provision of) a comprehensive health service, free of charge.

The next major health service Act, the National Health Service Act 1977, was equally clear:

National Health Service Act 1977

1 Secretary of State’s duty as to health service.

(1) It is the Secretary of State’s duty to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement—

(a) in the physical and mental health of the people of those countries, and

(b) in the prevention, diagnosis and treatment of illness,

and for that purpose to provide or secure the effective provision of services in accordance with this Act.

(2) The services so provided shall 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.

Apart from the change from Minister to Secretary of State, the key wording on ‘duty…to provide or secure the effective provision of services’, free of charge, remains intact.

In the next major health service Act, the National Health Service Act 2006, the wording is altered, but the key provision remains unaltered:

National Health Service Act 2006

1 Secretary of State's duty to promote 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) The Secretary of State must for that purpose provide or secure the provision of services in accordance with this Act.

(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.

Clause (2) could not be clearer: the Secretary of State must - and so has a duty to - provide or secure the provision of services, and again those services must be free of charge.

Now we come to the interesting bit: the Health And Social Care Bill currently before Parliament. This is in fact an amending Bill; in other words, as now written it describes amendments to the 2006 Act (as quoted above). The proposed key changes are:

Health And Social Care Bill

1 The Secretary of State and the comprehensive health service

(1) Section 1 of the National Health Service Act 2006 (Secretary of State’s duty to promote health service) is amended as follows.

(2) For subsection (2) substitute—

“(2) For that purpose, the Secretary of State—

(a) has the public health functions conferred by this Act, and

(b) in exercising functions in relation to a body mentioned in subsection (2A), must act with a view to securing the provision of services for the purposes of the health service in accordance with this Act.

(2A) Those bodies are—

(a) the National Health Service Commissioning Board;

(b) commissioning consortia;

(c) local authorities (as respects their public health functions).”

(3) After subsection (2A) insert—

“(2B) In this Act—

(a) any reference to the public health functions of the Secretary of State is a reference to the functions of the Secretary of State under sections 2A and 2B and Schedule 1, and

(b) any reference to the public health functions of local authorities is a reference to the functions of local authorities under section 2B and Schedule 1.”

(4) In subsection (3) for “services so provided” substitute “services provided as part of the health service in England”.

And if we effect those changes to the 2006 Act, what we get is:

1 Secretary of State's duty to promote 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)The Secretary of State must for that purpose provide or secure the provision of services in accordance with this Act.

(2) For that purpose, the Secretary of State—

(a) has the public health functions conferred by this Act, and

(b) in exercising functions in relation to a body mentioned in subsection (2A), must act with a view to securing the provision of services for the purposes of the health service in accordance with this Act.

(2A) Those bodies are—

(a) the National Health Service Commissioning Board;

(b) commissioning consortia;

(c) local authorities (as respects their public health functions).

(2B) In this Act—

(a) any reference to the public health functions of the Secretary of State is a reference to the functions of the Secretary of State under sections 2A and 2B and Schedule 1, and

(b) any reference to the public health functions of local authorities is a reference to the functions of local authorities under section 2B and Schedule 1.

(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.

Clause (2) is the crucial one. Where the wording used to be ‘must’ (provide services etc…), with its attached duties, it is now ‘must act with a view’ (to provide services etc…).

Now, note the syntax. In the previous wordings, the compulsion created by the must was to ‘provide (services etc)’. In the proposed amendment, the compulsion created by the must is to ‘act (with a view etc)’. At a stroke, the Secretary of State’s duty to provide services has been transformed into a duty to ‘act with a view’ – and ‘acting with a view’ is most certainly not the same thing as providing a service. The ministerial duty has been removed.

The Tories, of course, deny that this duty has been removed, but the wording, teased out above, makes it clear that it has. Why does this matter? It matters because, if enacted, it will mean that there is no elected politician charged with a duty to provide a national health service. No one we can hold to account when the health service is sold off, chopped up and shredded in the Tory money making mills. No one we can hold to account when our local hospital is sold off, chopped and shredded.

No one we can hold to account when we wake up one day to find there is no longer a National Health Service.

13 comments:

Their words, no mine! But it seem so clear.

Well spotted.

Oooops,I mean to say: their words, not mine but keyboard got sticky! And they even left room for charging!

Thanks for doing this, I've been meaning to do it myself but never got round to it.

Let me draw your attention to the Draft Conservative Manifesto published in Jan 2010. Page 9 says:

With less political interference in the NHS, we will turn the Department of Health into a Department of Public Health so that the prevention of illness gets the attention from government it needs.

At the time this did not seem to mean much, but it is actually rather devastating. Currently the Public Health responsibilities of the Department of Health cost £3bn out of a budget of over £100bn. Some of that PH budget is spend on persuading teenagers to use condoms, smokers to give up the weed and getting fatties to exercise; but a sizeable chunk is spent on vaccinations and on international responsibilities to prevent the spread of infectious diseases. This is all that Lansley wants to do in the future (considering the mess he made of the flu vaccination this winter one wonders if we should allow him to try again next year).

The other £100bn or so is for healthcare provision. The Tory manifesto had it there plain as plain can be: vote for us and the government will no longer be responsible for providing healthcare. Did anyone hear Cameron say that at the election? I thought not.

Lansley intends to downsize the Department of Health to something like the Department of Culture. In future healthcare will not be a major responsibility of government.

You have been doing your homework, Dr No.

This post should be drawn to the attention of every MP and tweeted over and over again.

Richard Blogger: Public Health ? Healthcare? Where will the service be for the ill and frail? Ah, The Big Volunteer Society will look after them.

The last government would have been no different.

Definitely not government for the people just rich pickings for rich politicians and their already wealthy cronies. All hail for the rise and rise of the professional politician.

How did we get to this state ? How did we get politicians who have scarcely done a REAL day's work in government? How did we get to the gilded route of Eton, PPE Oxbridge, researcher, MP, Cabinet. I'm kind of worried about the Oxbridge numpties - what's happened there it was once upon a time the highest of the highest centres of learning. Meaningless jobs like PR / HR /don't count as a job.
No-one should be an MP under the age of 40
How did we get to a state of affairs where a Minister could vacate a post then almost immediately get a seat on the board of private company.
Bet Lansley can't believe his good fortune as our Media is concerned solely with Libya, the middle east, and nuclear fallout in Japan, whilst the UK rots and implodes from within.
Just my thoughts - depressing I know
Anna

I posted about the film "Inside Job" where the bank regulators if they are any good (bad for the banks) would be employed, often on the spot!!

Good work, Dr No. There was a whole discussion about this in the Health Committee papers; I'll try and dig it up, because this is really important. This is rather like what Labour did with the role of Chancellor, where the government was no longer directly responsible for interest rates, but handed it over to the Bank of England.

Julie - Dr No did see some if not all of those reports and transcripts (available via links here and here), but found the signal to noise ratio often (but not always) rather in favour of noise. The Chair also seemed on occasions somewhat grumpier than strictly necessary.

CC - Dr No has been reading your excellent recent posts with great interest. Inside Jobs, Monitors, and poachers turned gamekeepers are all very much part of the story.

Professor Allyson Pollock - who has been strenuously pointing out the damage the Bill will do for some time - has apparently had something published on the matter in the BMJ, only the BMJ - with typical bone-headedness - have hidden this no doubt pithy and erudite contribution to what is the most important debate about the NHS since its inception behind a paywall. Not very public spirited...

Abetternhs's blog covers some of Prof P's article here.

great observation,

have written a short piece on Lansley and his aggressive incompetence, linking your piece in

why are 'professional' journalists unable to do this kind of work? why do they repeatedly fail to nail Lansley on certain issues?

Well done, Dr No. Our MPs seem hell-bent on destroying our NHS. Don't they realise what the consequences will be?

Apparently not:

http://drgrumble.blogspot.com/2011/03/tsunami-looms.html

"Don't they realise what the consequences will be" - oh, I'm sure they have an inkling, but privileged groups like MPs are far too insulated to suffer much as a result of their interminable meddling with the NHS - in other words most will simply buy the best the market has to offer once the principle of universality is sufficiently eroded.

Let's face it - the only consequences most MPs understand are those associated with success or failure at the ballot box?

Well done Dr. No - see it's all language. Alter it a little and it gives free rein for whatever ideological interpretation is the preferred one of the day! rip drip rip drip....

Slash and burn or according to your picture shred and burn - what a great metaphor that picture is!

Thing is where do PEOPLE (as in Patients) get a look in - unless of course this policy has something like a "trickle down" effect.
So how long will patients (who are actually the victims of this ideological rubbish)lie in their beds waiting for their trickle-down care?

No-one seems to think about them.

If Intertwingler had her way, the Health Service would be transformed not reformed. There would be no separation between GP/Hospital/Community - all, including mental health, would become an integrated whole without nasty internal markets.

Furthermore as said, everything would be patient led. Hospitals would have more Nurses for high-dependency areas, decent nourishing food, free Home Care etc etc.

As for Commissioning, let the Commissioners do the Commissioning and the Doctors do the Doctoring.

Last time the Cons were in they tried this business of self-funding Medical Practises (GP level). Twingler personally witnessed GP carrying a brief case instead of a medicine bag.
At this time, the GPs had a choice as to whether to become self funding or not.

This time the Cons don't want Doctors to choose. Thus tumbles one of the pillars of Western Liberal Democracy - choice.

Perhaps letting the Big Society conrol the Health Services would be a better idea than using the NHS as a political football by MPs who are wet behind the ears and have no idea of what it is to be ill frail and dependent.

There's a thought.

At least the NHS would then be run by people who engaged with others in their communities, and cared for people and the NHS.

My Big Grey Tabby toally agrees with Witchdoctors Black Cat

Intertwingler

nice post...

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