Passage of the Health and Social Care Bill

On 20.3.12 the Commons voted the Health and Social Care Bill through at 10.15pm, spending less than 6 hours debating the 357 amendments made in the Lords.

The Labour motion on disclosure of the risk register was lost by 328 to 246 votes. Two LibDems voted with Labour, Greg Mulholland and Adrian Sanders and three abstained. Most of the Lords amendments passed and the government won most by about 80-90 votes as the bulk of the Lib Dems voted with the government. Andrew George, Greg Mulholland, Adrian Sanders and John Pugh sometimes voted against or abstained. The amendments were grouped so it would take hours to work out the rationale of these votes. The rest ignored their party conference decision.

I want to thank everyone involved in the campaign against the Health Bill. It has been a remarkable campaign, uniting doctors, nurses and health professionals with the general public. It has been highly successful in exposing the myths and lies peddled by politicians trying to hoodwink the public.

This is a terrible Bill. It will damage patient care. It will waste precious public money on an unaccountable and more complicated bureaucracy and legal costs as private providers fight for thousands of healthcare contracts. It will damage the health of the most vulnerable patients and their communities. If it is not scrapped as soon as possible it will destroy the National Health service, so valued and loved by those who work in it and those who depend on it.

Plans are already in train for a major campaign to save the National Health Service, that will run at a national and local level until the next General Election and beyond. There will be hundreds of battles to be fought across the country in the next few years, as Clinical Commissioning Groups struggle to deal with a morass of contracts and the overstretched Care Quality Commission (CQC) try to 'kitemark' services; predatory private healthcare companies and management consultants scramble to pick the bones of the NHS; and dedicated healthcare professionals fight against the odds to continue to provide a comprehensive, high quality and free service to the public.

As more evidence emerges of the dodgy financial dealings of the private health care companies and the links between those in the Lords and Commons with private health care corporations those in the general public who had not understood what was happening to our NHS will become more angry and involved in the battle to Keep Our NHS Public.

Thank all of you in Keep Our NHS Public. We have fought so hard and so has Dr Clare Gerada of the Royal College of GPs. She is the only leader of a Royal College who has fought against this bill and the others and the BMA with their policies of 'critical engagement' have let down the profession and the public. Latterly the rank and file of health professionals have realised what this bill will do to the NHS - as KONP, the NHSCA and the NHS Support Federation pointed out as soon as the white paper was published in July 2011. Now they are awake we must continue to engage with them. The Guardian interviews with 100 health and allied workers on 15.3.12 (http://www.guardian.co.uk/society/series/nhs-voices) showed how dedicated they were but also how uninformed the majority of them were about the effects of the Health and Social Care Bill.

As Aneurin Bevan said of the health service 'It will survive as long as there are folk with the faith to fight for it'.


The fight goes on, so don't think Mr Cameron, Mr Clegg and Mr Lansley that because you have rushed this bill through parliament without letting peers or MPs see the risk register that we will give up.
WDS 21.3.12


Too Risky to Tell the Public?

Lords to Debate Halting Health Bill until Risk Register is Published

On Monday Crossbencher Lord Owen will move a motion in the House of Lords to halt the Health and Social Care Bill until the Government publishes the Transitional Risk Register for the NHS. He comments:

"I believe, and many others do too, that the risks of going ahead with this Bill are greater than the risk of stopping."

The Government continues to refuse to publish the Register, despite being instructed to do so by the Information Commissioner and then losing an appeal to the Information Tribunal.

However, it is possible to use published documents to estimate the types and level of risk that the Health Bill would create in the NHS. Analysis of the Combined Impact Assessments published on the Department of Health website [1] shows the following as foreseeable outcomes:
  • System failure because GPs lack relevant skills and adequate time;
  • Threats to the financial stability and viability of Clinical Commissioning Groups;
  • That rather than achieving promised savings, costs will greatly exceed those in the current system;
  • There will be a fixed budget for each person, with all further costs payable by the patient or their private health insurer. GPs will have to enforce this rationing and explain it to patients;
  • Collaboration is expected to suffer (because competition law considers it "anti-competitive");
  • Organisational self-interest may undermine the quality of care;
  • Prioritisation of private patients may lengthen waiting times for NHS patients.
At a population level some consequences of the major organisational and funding changes involved are predictable. Given these major financial and functional problems, one overall risk of the Bill is a rise in ill health and in preventable deaths.

The exceptional value for money of the NHS is likely to fall to levels typical of healthcare systems based on competitive markets. For example, studies have shown that for-profit US hospitals had 2% higher death rates and 19% higher costs than non-profit hospitals [2]. Targeting of services to vulnerable populations will suffer, as such services are less commercially attractive. Meanwhile consumer-driven healthcare tends to over-treat those that can pay, in order to please patients and boost profits, and this can be dangerous to patients [3].

Another change likely to have affected the contents of the Register is the imminent switch to a limited package of state-funded treatments to be provided through CCGs, as presented at the recent Nuffield Trust Health Policy Summit supported by McKinsey [4]. This reduced entitlement will lead to a major expansion in top-up private health insurance and could mean a return to the era of unpayable medical bills, which was a major reason for the creation of the NHS [5]. In the USA, 62% of personal bankruptcies are due to medical charges. Of these, 78% had valid health insurance that would not cover their costs, with the families of disabled children among those worst hit [6].

Commenting, health services researcher Lucy Reynolds said:

"The refusal to share the Transition Risk Register may aim to conceal the imminent change from a trusted National Health Service that treats according to medical need and protects against unaffordable medical bills, to an inferior one which commercialises care and exposes patients to financial risk.

This change may be impossible for a future Government to reverse, because providers could claim compensation under EU competition rules in the event of attempted renationalisation. Mr Cameron and Mr Lansley want to stop the public discovering that the insurance industry will be the main beneficiary of the Bill, while the public - especially the elderly and the chronically ill - will suffer."

Notes

[1] These are available as a single pdf here

[2] See Woolhandler S and Himmelstein DU. Competition in a publicly funded healthcare system. BMJ 1 December 2001;335: 1126-1129

[3] In the USA Fenton et al explored the outcomes of patients who reported most satisfaction with services compared with those of the least-satisfied. They found that if the most severely ill were removed from the sample, excess mortality was 44% higher among the more-satisfied group after adjustment for other factors. This is a result of patients seeking or being offered inappropriate treatments: unneeded interventions can harm patients. Fenton JJ, Jerant AF, Bertakis KD, Franks P. The Cost of Satisfaction: A National Study of Patient Satisfaction, Health Care Utilization, Expenditures, and Mortality. Arch Intern Med. 2012; 172(5): 405-411

[4] 2012 Health Policy Summit 29 February-1 March 2012

[5] Origins of the NHS. The Cabinet Papers 1915-1981. The National Archives

[6] Himmelstein DU, Thorne D, Warren E, Woolhandler S. Medical Bankruptcy in the United States, 2007: Results of a National Study. The American Journal of Medicine August 2009;122:741-746

The Public Health for the NHS network includes former Presidents of the Faculty of Public Health, more than fifty Directors of Public Health and the country’s leading experts in health policy and health systems analysis.

Votes in the House of Lords maintain the primacy of competition

Need to write to peers and members of Parliament, LibDem councillors and local Press NOW (use our letter templates)

The Government plan to bring back to House of Commons by 19th March and ask the Queen for Royal assent when she visits on 20th March.

Wednesday's votes in the House of Lords maintain the primacy of competition and Shirley Williams has signed a motion designed to spoil Charles West's motion calling for withdrawal of the bill at the Lib Dem Spring Conference on 10.3.12

The four votes in the House of Lords on amendments to the Health and Social Care Bill aimed at reducing the impact of competition on the NHS were all lost. Some changes were made in that direction without a vote (such as removal of the Competition Commission's review duty) - but they fell well short of deleting the Bill's competition chapter that Shirley Williams had called for in her Guardian article on 13th February. It's so hard to fight off cynicism when even someone of her reputation doesn't seem to believe what she says.

Bizarrely, the Lib Dems voted against their own amendment. Labour had tabled an amendment to establish a principle of "universality and social solidarity" in the regulation of health and adult social care services. Lord Clement-Jones moved an amendment to replace those words with "in accordance with the provisions of Article 106 of the Treaty of the Functioning of the European Union as set out in section (Service of general economic interest)" This weak and opaque Lib Dem amendment to Labour's amendment could still have been of some significance, because Article 106(2) of the Treaty prevents competition rules from obstructing the delivery of services of general economic interest, such as the NHS.

But Earl Howe wasn't having any of it. In a long soothing speech resisting both the amendment and the amendment to the amendment, he put everything onto Monitor's discretionary shoulders, made clear the primacy of competition rules and suggested - but did not commit to - an alternative and narrower approach to limiting the application of such rules to individual agreements, decisions or practices:

"Co-operation for the benefit of patients should not breach competition law. Article 101(3) of the Treaty on the Functioning of the European Union and Section 9 of the Competition Act lay down exemptions which apply if the wider benefits of an agreement outweigh its anti-competitive effects. On an individual basis, we would expect collaborative arrangements whose overall effect was beneficial to patients to meet the criteria in Article 101(3) and Section 9."

Lord Clement-Jones then withdrew his amendment, but it was put to the vote and peers voted it down overwhelmingly by 278-188.

The vote against cross-bencher Baroness Findlay's amendment to Clause 61 aimed at requiring Monitor to treat anti-collaborative behaviour in the same way as anti-competitive behaviour underlined the Bill's lack of neutrality on this issue. In a feisty exchange (by House of Lords' standards) before her amendment was voted down by 221 votes to 177, she asked Earl Howe to "confirm ... that competition is trumping collaboration", to which he answered "No. Collaboration, if it is in the interest of patients, will always trump competition."

So, why won't the government require Monitor in Clause 61 to treat competition and collaboration equally?

Peter Roderick

Progress of the Health and Social Care Bill: Report stage

The House of Lords report stage started on Feb 8th. This was the first of seven days allocated for the report stage in the Lords. Another 301 amendments were tabled (See www.parliament.uk). Seven days is the estimate of the government whips; it is open to the Lords to allocate more days. There were 301 amendments tabled and they are grouped for discussion, but as in Committee stage several will not moved or will be withdrawn. 29th Feb is the fourth day and 6th, 8th and 13th of March have been allocated for the remainder. 3rd reading is planned for 19th March and then Commons expected to vote on 20th March. Time for withdrawal of bill is short.

Day 18th Feb

As was the case in the Committee stage, most amendments are not moved or are withdrawn or taken by the Minister Earl Howe to consider further or agreed without a vote. In day 1 the government suffered a rare defeat by 4 votes (244 to 240) about inserting 'physical and mental health' in the first paragraph of the bill It was tabled by Lord Mackay of Clashfern, a conservative peer and previous Attorney General, supported by two cross benchers and a Liberal Democrat. The more important amendment to Clause 1 about the duties of the Secretary of State, (SoS) tabled by Baroness Thornton (Labour leader on health in the Lords) reinstating the wording of the 2006 act of was withdrawn. The amendment tabled by Earl Howe (C), Baroness Jay (L), Lord Patel (XB) and Baroness Shirley Williams (LD) was agreed without a vote, added "the Secretary of State retains ministerial responsibility to parliament for the provision of the health service in England." A compromise, better than nothing, but not what we wanted.

Four more amendments were withdrawn, three were not moved and four, tabled by the government some with other peers, were agreed; referring to the NHS constitution, autonomy and conflict of interest of SOS and research. The amendments discussed covered clauses 1 to 5

Day 2 13th Feb

There were two divisions both lost Baroness Masham wanted the SOS to have a duty of candour when things went wrong and spoke movingly about how patients and their relatives suffered when mistakes were covered up but it was lost by 36 votes (24 to 198). Discussion about the National Commissioning Board and the relationship with clinical commissioning groups (CCGs) led to agreement of amendment 34 to clause 12 put forward by Earl Howe, Lord Walton Baroness Williams and Lord Patel. This limited the autonomy of the CCGs and required them " to promote a comprehensive health service". Amendment 18 introduced by Lord Hunt requiring the SoS to limit bureaucracy was lost by 71 votes (231 to160).

Day 3 27th Feb

Two divisions Amendment 38B moved by Lord Hunt about the organization (including preventing conflicts of interest) of Clinical Commissioning Groups was lost by 73 votes 259 to 186. 38C moved by Lord Warner requiring integration of services was lost by 21 votes 227 to 206.

Day 4 6th March

One Division moved by Lord Hunt amendment 76 was lost 282 to 185 by 97 votes-so much for openness and transparency it was to insert these words:

provide for the chair and non-executive members of each governing body to be appointed using an independent process, the details of which are to be laid out in regulations.

On 2.3.12 ANOTHER 63 AMENDMENTS WERE TABLED This is madness.
WDS 6.3.12

Below more information about the process from the lawyer Tim Treuherz

Third reading

After the report stage will be the third reading (normally one day, perhaps more in this case). At least three sitting days usually pass between report stage and third reading. The third reading is the final chance for the Lords to debate and change the contents of the Bill. Unlike the Commons, amendments can be made at this stage, provided the issue has not been fully considered and voted on at an earlier stage. Amendments at third reading in the Lords are used to clarify specific parts of the Bill and to allow the Government to make good any promises of changes to the Bill made at earlier stages.

Then the bill goes to the Commons for consideration of Lords amendments, then back to the Lords for consideration of Commons amendments and so on. This is a process known as 'ping pong', that continues until the two houses are agreed. At the end of this process, the two houses must agree. The bill will then be sent for the Royal Assent. After the bill has been submitted for Royal Assent, that's it. Royal Assent has not been refused for over 300 years! The bill will then become an Act. It will be brought into force in stages, in accordance with clause 302.

Other issues

There are a number of procedural and constitutional issues which could arise. What follows is a brief explanation of some of them. We need to be aware of these issues but not rely on any of them; they must not distract us from saying what we want to say.

The Parliament Acts

Lord Owen has referred to the use of the Parliament Acts but it is not considered in his blogpost for the report stage. These Acts give the elected chamber primacy; if the two houses cannot agree on a bill in two successive parliamentary sessions, the bill would be delayed for a year. This last occurred during the passage of the Hunting Act 2004.

Lord Owen's motion

A Freedom of Information request for a copy of the Department of Health risk register was refused by the government. The Information Commissioner ruled in favour of disclosure and the government has appealed against the decision to the Information Tribunal. Lord Owen has tabled a motion 'that the Health and Social Care Bill be not read a third time until the Information Tribunal has ruled, following its hearings on 5 and 6 March, on the disclosure of the Bill's risk assessment and the House is satisfied, in the light of any further examination of risk, and taking account of the views of the health professions, that the risks of not proceeding with the Bill are greater than the risks inherent in the Bill itself.'

The parliamentary session

The leader of the Commons will announce a date for the end of the current parliamentary session shortly. The date is expected to be in the spring. If the bill has not completed all of its parliamentary stages by the time the session ends, the bill will fall. But that would not be a political victory and is not something we should rely on.

Financial privilege

The commons invoked its 'financial privilege' (its primacy in financial matters) on Feb 1st to block certain Lords amendments to the Welfare Reform Bill. Media reports have suggested that the same device could be applied to amendments to the Health and Social Care Bill, but this is unlikely.

Tim Treuherz
8 March 2012

Health and Social Care Bill January update

The Committee stage in the Lords finished on 21.12.11. After 15 sessions (up from 10 originally) and 95 hours of debate there are no significant changes to the Bill. There were seven Divisions after the failed attempts by Lord Rea to throw the Bill out (lost 220:354) and Lords Hennessy and Owen to put some parts into a Grand Committee rather than discuss on the floor of the House (lost 262:330). The government won all but one albeit with smaller majorities. The amendment, which was lost, was about the question of whether charities should pay VAT, obviously important but hardly a major part of the Bill.

Education and training were not part of this Bill but to be dealt with by another Bill (Health Education England) not yet considered by the House of Commons. Lord Walton (aged 89) led the medical Lords to push for this to be added. Promises have been made to deal with these issues at report stage, as clearly the arrangements should be considered in the context of the radical changes proposed in the Bill. The policy proposals were published on 3.11.11 (read here) but Earl Howe's statements were not reassuring.

Baroness Thornton the leader of Labour in the Lords moved a proposal on the first day to insert a preamble before Clause 1 setting out the principles of the NHS which if this Bill was about improving the NHS should have been supported by the government. It was lost 212:244 a majority of 32.

Many amendments were withdrawn or not moved and a few have been referred to the government with promises to return with modified amendments at report stage. The duties of the Secretary of State is one of these and the Lords Constitution Committee have also expressed concern. Earl Howe has produced a long letter, which requires legal interpretation. I am not a lawyer but I cannot see why they do not leave the 1946 clause 1 (as modified slightly in 2006) as it is -they argued in the Commons that there was no change in the duties of the secretary of State, so this seems like deliberate obfuscation to me.

On 7.12.11 Baroness Thornton proposed that the government should reconsider its proposal not to disclose the risk register (which Lord Owen has also been chasing) through the Information Commissioner. He had ruled that it should be disclosed in December but the government have appealed against this ruling making it unlikely that it will be available before report stage. This motion was lost by 53 votes (248:195).

Just before Christmas the government announced an amendment to clause 162 which removed the cap on private practice income. Baroness Williams had suggested this should be limited to 49% - better than no cap but still a green light for a two-tier system to develop as NHS services are squeezed (read here).

Report stage is from 6.2.12 and may last from 2 to 3 weeks. It is our last chance in the Lords to get significant amendments. The Lib Dems have been the most assiduous in voting, cross benchers least, see attached spreadsheet prepared by Dr Anthony Isaacs.

We must continue to ask for the Bill to be withdrawn and push the message that stopping now will be less damaging than proceeding with the Bill. So far the government has ignored the growing chorus of dissatisfaction with the Bill from GPs and Public Health doctors and the media have not made the connection between the PIP breast implant scandal and the further privatisation of the NHS that this bill will usher in if it is not stopped. The recent votes against the government during the Welfare Bill debates show that if the Lords understand the detrimental effects of legislation they will vote against it. We must make sure they understand the overall thrust of the Bill. Once we have analysed the Lords debates we will post amore detailed plan of action but in the meantime look at the spreadsheet and see how your adopted Lord voted. 1 means voted against the government, -1 means they voted with the government, and total 0 usually means they have not voted.

The heroic achievement of Drs Clive Peedell and David Wilson in running from Cardiff to London from 10-15th January to bring attention to the Bill seem to have passed the bulk of the media by as has Andy Burnham's call for the bill to be scrapped. We will, with your help, continue to spread the message that the people of England do not want their health service turned into a commercial market.

Wendy Savage

Health and Social Care Bill needs significant amendments in the House of Lords
October - December 2011


At breakneck speed and despite its immense complexity, Lansley's Health & Social Care bill has been railroaded through parliament.

Lord Rea's amendment 'to decline to give the bill a second readng' fell by 134 votes (220 for and 354 against). This would have stopped the Bill in its tracks. Lords Owen and Hennessy's amendment for a select committee to look at parts of the bill in detail fell by 68 votes (262 for and 330 against). The committee stage will start on 25.10.11 amendments must be in by 21.10.11. You can watch the debate at www.parliamentlive.tv.

The prime minister and his government are keen to preach democratic principles to other countries, yet the way this bill has been managed is anything but democratic. It is designed to turn the NHS into a market, despite evidence that healthcare is unsuitable for market mechanisms.

Although not unexpected, voting in the House of Lords was a big disappointment, and the lack of media interest compounded that feeling. Only two Lib Dem peers: Baroness Jenny Tonge, a former family planning doctor, and Lord Greaves, voted in support of Lord Rea's amendment and only a handful of crossbench peers, one Labour peer Lord Warner voted against. KONP activist, Roz Dixon, has added their votes to her spreadsheet see here. So, this flawed, unnecessary and complicated Bill ploughs on; however, all is not lost.

The fight is not yet over and we must continue to apply pressure on members of the Lords to make sure that significant amendments are made in order to reduce the damage this bill will otherwise do. We must also continue to challenge and inform Liberal Democrat and marginal Tory MPs because they have to agree to any changes the Lords make when the Bill comes back to the Commons. Link here to spreadsheet of marginal constituencies.

Tim Treuherz has done a detailed briefing about the process in the Lords link here and Allyson Pollock and David Price are working on detailed amendments.