Tuesday 17 July 2012

Unedited document from NHS private healthcare lobby Group Reveals Actions Taken to Ensure Competition Remained in Health bill

This document, which was handed to Social Investigations, reveals the lobbying process that took place from the NHS Partner Network – in its attempts to ensure competition remained a big part of the Health and Social Bill following the listening exercise.

No words have changed as the details speak for themselves. To receive full original document contact me - andrewfiskar(at)gmail.com and if you write an article on the issues with this document, I ask you to please quote Social Investigations as your source.

NHS Partners' Network: Director's update on the NHS Reforms - 20 May 2011
The task

At our AGM on 19 April we agreed on how best to handle the considerable threats posed for the sector by the "pause" in the legislative process because of the opposition to the NHS reforms and the return to levels of hostility towards the independent sector not seen or heard for some years. The essence of the strategy was to recognise that if the report by the NHS Future Forum to the Prime Minister went the wrong way for us, retrieving the position would be almost impossible. Therefore the tactical imperative had to be to influence the forum members directly and to concentrate other activity on those who themselves would have most influence on the forum.

Where has the process got to?
To all intents and purposes, the "pause for listening" is now over and the decision taking phase is starting. The Prime Minister meets the Forum today for a final "round-up" and the report will be drafted and agreed very early next week. the Forum has talked to over 5000 people, with an overwhelming emphasis on the mainstream NHS and especially clinicians.

From the various sessions I have attended I would say that the quality of the discussion has been higher and more balanced than I had feared would be the case. I also have the impression that the arguments in favour of choice, competition, plurality and economic regulation put forward by the small handful of like-minded members ably led by Sir Stephen Bubb have often carried the day and won more support than we might have expected. Support, that is, for the intent and the substance, rather than for the presentation and mode of delivery, where criticism has been sharp.

What have we managed to do?
Our main thrust was originally to try to use individual relationships with forum members to get messages across, using "common hymn sheets" on our key issues. However, on investigation it became clear that the number of personal contacts were too few for this to be enough. We therefore sent more polished versions of our key briefs to all forum members. I received about a dozen acknowledgements, including several that specifically commended the clarity and helpfulness of the briefs. That I hadn't expected but suggests the materials "worked" in communications terms.
In terms of direct discussions:
• I had one lengthy, very early discussion with Sir Stephen Bubb at which we agreed on the approach he would take, what the key issues are, and how to handle the politics. He has not deviated from this for a moment throughout the period.
• A number of members secured individual meetings with him, thus reinforcing and validating the messages.
• I had a second lengthy meeting with Stephen to discuss the position with him last week, under the auspices of "Reform", with only a handful of other (all like-minded) people present, including David Bennett, the chair of Monitor. He has also consistently taken the same line as us throughout.
• I have heard from most of the members who said they could make direct contact with Forum members confirming they have done so. Thank you.
• Personally I have been able to speak to Steve Field himself , Jimmy Steele , Niti Pall, Julie Moore, and Paul Farmer.
• I also participated actively in two of the Forum's major "listening" events: one run by the Confederation and one by/for the Secretary of State's National Stakeholder Forum. Both were well attended by forum members. At the latter, every Minister was present and I was able to make key points in a workshop session attended by the Secretary of State and Earl Howe and chaired by Steve Field.

Sir Stephen had hoped to find a couple of hours for a meeting with the NHSPN Board, but the schedule of country-wide meetings arranged for the Forum by the DH in the end made that impossible. He is now hoping to be able to confirm a meeting on1 June when he will discuss with us what his report says and what he thinks it mean for all independent providers. I will confirm this to members as soon as I can.
In terms of "supporting" discussions:
• I have coordinated our position carefully with Monitor, the CBI and the FTN and have devoted considerable time to securing a reasonably helpful response from the NHS Confederation. That has, however, only gone off today, illustrating the problems of trying to react speedily when representing disparate interests.
• Several members have used their own "routes" to gain access to key players within No.10 and have been able to report back that the stance there is supportive, though there is low awareness of exactly what the independent sector does or could do . I did brief the new No.10 health policy adviser very fully, and indeed "cleared" our materials with him. I have has several other "stock-take" phone conversations with him. We are certainly on No.10's radar - I received an invitation to the PM's big speech last Monday and went. (Incidentally, for those who had the pre-event text, he specifically added a sentence about the importance of patients being able to attend private hospitals if they wanted to, provided NHS standards and prices were being met.)
• There have been a number of contacts with the Lib Dems. I had an early meeting with Norman Lamb who continues to advise Nick Clegg very closely, and a further very long phone call with him on Tuesday this week. I will come to the politics shortly.

• We organised a letter from our Clinical Forum, on behalf of the 45,000 clinicians who do NHS work from the independent sector, to Steve Field. This was powerful. Steve himself told me how useful and well-argued it was and No.10 also thanked me for it.

The DH

• Jill Watts and I went to the DH yesterday to see Earl Howe. Unplanned, Simon Burns also asked to join the meeting, which certainly indicates that they recognise that we are less than happy about things. the two Ministers (supported by Bob Ricketts) were necessarily constrained by the fact that everyone is supposed to be "listening", but gave every signal possible that they understood and sympathised with our concerns and shared our view of the key issues and priorities. Earl Howe's depiction of the Government position was, to paraphrase, that "choice" was a non-negotiable; real choice requires a range of provider types; that means competition; and competition has to be expertly regulated. He could have been delivering a précis of our briefing notes (which of course he had already seen). Simon Burns seemed more engaged than before, defended the reforms firmly and took notice of our arguments on the issue of health sector training arrangements. In short, I do not think, under the circumstances, we could have hoped for more from the two ministers at this delicate moment in the process.
• Later in the day, at the National Stakeholder Forum, Earl Howe endorsed my arguments twice during the session on competition and regulation .

The Politics

What both Ministers were at pains to point out is the need to try to distinguish between three things: the policy debate; the health politics (BMA etc); and the high level "noise" around the coalition politics. We said we completely grasped this, but had to be hugely vigilant over the risk of the "noise" turning into "real risk". They did not deny this.
However, without wasting members' time on extensive political speculation, my analysis is that the aim is to use the authority of the Forum's report and the listening exercise to improve and make more acceptable the policy; circumvent the traditional "health politics" of the BMA etc; and provide the coalition with a robust basis for getting a revised Bill through the Lords and past the remaining dissenting Lib Dems. Meanwhile Nick Clegg is, frankly making noise in order to persuade parts of his party that he is really driving the changes needed to "save the NHS". There will be more of that as we enter the next phase, but we need to see it in context and not over-react.

The Forum's Report

Again, beware speculation, and we should know for sure in about a week, either officially or otherwise, but I currently expect:
• Major changes on "commissioning", which will become "clinically led commissioning" rather than "GP commissioning. There will be more flexibility on timetable and there will be a number ( 50 or so) of ongoing commissioning bodies at the level of the current "clusters". These will do the heavy lifting until "consortia" are up to the job; will provide the location for commissioning which requires scale; will also provide the place where clinical input from people other than GPs can be increased; and where other vital skills can be accessed.

If that or something like it emerges it should be better for us - terms of stability and "expert planning and buying", than the original proposals.
• Major changes on accountability, to reflect Lib Dem concerns to advance local democracy and everyone's concerns about accountability for £60m+ of public funds. On to watch for is Sir Stephen's idea of picking the concept of local "right to challenge" which feature in the Localism Bill.

Of less direct relevance to us, so impact relative to the original reform proposals is probably neutral .

• The Education and Training proposals will be endorsed in principle but slowed down: there is no need for a crash programme of change so why try to do it at the same time as everything else.

Impact is helpful as it slowing down avoids the distraction and gives time for fuller discussion of exactly how the independent sector participates.
• Economic Regulation and competition - the big one for us. I currently think the need for an economic regulator in the form of Monitor will be endorsed by the Forum and retained in the Bill. The language may change: "sector regulator" perhaps.
• What will undoubtedly change are the top-level duties of the regulator. The hugely contentious duty to promote competition will be dropped and instead we will see duties to promote any or all of: "choice"; "integration of care""; "provider sustainability"; "continuity of services". That will be claimed by others as a huge victory.
• However, in reality, those objectives are more akin to the ones required of other regulators. Competition is indeed a means to an end, not an end in itself, and can be used effectively to help achieve all of those objectives. And despite Mr. Clegg's unusual "take" on European law, national government's cannot change or undo EU law on "undertakings" or procurement!

Of course, this is the area in which the forces of coalition politics are most in play and there are other options which have been or are being talked about, including retaining the CCP, and/or dropping Part 3 of the Bill. At this moment I do not think these will emerge as the way forward but the next few days will determine all.
If this view is right, Monitor will be free to do its job, and while progress will not be fast, the framework and principles will be alright for us.

The Media
Finally, the media. We agreed we would "up" the profile on key issues, without inflaming the debate. Members will have seen some very good reporting in the specialist press of my public defence of the role of competition at a conference earlier this week. We have also had good coverage on the BBC website. Our Clinician's letter was mentioned in the Telegraph. And the whole sequence of Telegraph articles and editorials on the importance of the Government not going soft on public
service reform, including some strong pieces on health, is something I have been orchestrating and working with Reform to bring about.

We need to keep as close as possible to No.10 over the next few weeks. So much depends, first, on what the Forum Report actually says. But as we move into the next phase we will need to shift our efforts onto the politicians - those the Government listen to, and those who will play key roles in the House of Lords when the Bill gets there. The report, which I am sure will be almost entirely accepted by the Government, will then guide the redrafting of parts of the Bill so that (Ministers hope) the legislative process can get under way again in early July.


  1. Interesting document. Note this: "I had a second lengthy meeting with Stephen to discuss the position with him last week, under the auspices of "Reform""

    The capitalisation is important because Reform are a right-wing "thinktank" who have a NHS privatisation agenda, and essentially wrote the articles for Camilla Cavendish at The Times during the passage of the Bill. If the document really means the right wing thinktank then it widens the web of this conspiracy.

  2. Thanks for the input - this is something to explore. The document is fascinating and to me, nauseating in equal measure.

  3. I agree nauseating in the extreme. Please keep up the pressure and publish this awful (in the proper sense) document as widely as possible. Thanks for all your hard work.

  4. Niel Sherlock, who is also one of Nick Clegg adviser was before a senior executive at KPMG. KPMG belongs to Atos.

  5. From above:

    “…despite Mr. Clegg's unusual "take" on European law, national government's cannot change or undo EU law on "undertakings" or procurement!”

    In 2003/2006, Spanish private providers to Spanish NHS said that the Spanish NHS buying things, means it is an economic undertaking – a business.

    EU says that selling things is an economic act. You can’t separate buying a thing from the use it is put to. Whether buying something is “economic activity” depends on what you do with it.

    If you buy things for a social purpose, you are not taking part in “economic activity” as an economic undertaking, no matter how you are financed or your legal status.

    EU says Spanish NHS is social activity not economic activity.

    So is Spanish NHS not subject to competition law?

    EU says what you do with what you buy determines whether this is “economic activity” (c.f. war, Christmas presents, dinner parties?)

    Roy Lilley’s “Pink” email: 9 October 2012


    “…this is important. The whole future of the NHS might be at stake.

    “…the case of Federación Nacional de Empresas de Instrumentación Científica, Médica, Técnica y Dental (FENIN) v Commission of the European Communities Court of First Instance (EC), Case T-319/99, CFI judgment of 4 March 2003. (Here)

    ”… it is gobsmakingly important.

    ”It's ... the 'abuse of a dominant position' …

    “The abusers of a dominant position turn out to be … the Spanish Government. …The bits of the Spanish Government responsible for their health services were not tendering various services that they provided for their citizens. The key question was; are they 'undertakings'? Meaning; is the provision of a service 'undertaken' for an economic purpose, or are they 'undertaken' for a purely social purpose.

    ”The …argument…:

    “"... an organisation which purchases goods - even in great quantity - not for the purpose of offering goods and services as part of an economic activity, but in order to use them in the context of a different activity, such as one of a purely social nature, does not act as an undertaking simply because it is a purchaser in a given market."

    “…how important this is …:

    “"Consequently, an organisation which purchases goods ... in order to use them in the context of a different activity, such as one of a purely social nature, does not act as an undertaking simply because it is a purchaser in a given market. Whilst an entity may wield very considerable economic power, even giving rise to a monopsony, it nevertheless remains the case that, if the activity for which that entity purchases goods is not an economic activity, it is not acting as an undertaking for the purposes of Community competition law... "

    ”… the NHS is free at the point of need, services are not charged for and the tax funded, State provided health system is no way an economic entity why do we have … the market?

    “…no … evidence a health-market produces anything more than costs …"

  6. How will this sort of activity be affected by the Lobbying Bill and who brought it in, with what intentions?


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