Amended section 75 regulations still break promises on NHS competition

Despite amendments being made it appears the fundamentals have not been altered. Without urgent action from parliament and the public, April 1st will see the NHS fundamentally reconfigured as a competitive market system.

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Caroline Molloy
20 March 2013

38 Degrees has today published expert legal advice which makes very clear that the government has NOT listened to the outcry from grassroots groups, the medical profession and the unions about the broken promises and privatising effect of the ‘Section 75’ regulations.

In the advice, David Lock QC says:

"There does not appear to me to be anything substantial in the new Regulations which responds to these very real concerns. The assurances given by Ministers in Parliament about the freedoms that commissioners would have to commission services in the way they consider best for their local populations...do not appear to be honoured by these new Regulations just as they were not honoured by the old Regulations...[if] the contract is capable of being delivered by more than one provider, the CCG must hold a competition even if it is not in the interests of patients to do so...the introduction of wording about integration and co-operation between providers does not amount to any substantial change to the effect of the Regulations."

Even before seeing the latest legal advice, the BMA had expressed concerns about the effect of competition and called for a full parliamentary debate on these regulations. The RCGP has criticised them too, saying they do not go far enough to improve things. Even Dr Mike Dixon, president of the body representing the CCGs and previously one of the Act’s staunchest supporters, has expressed his concern over the new regulations, saying:

“There is a danger that it still leaves open the possibility that a clinical commissioner who wants to contract with a good local provider with a strong track record, who is signed up to the aspirations of the commissioner, and is providing a good service close to people’s home, might still have to offer that service to someone else as part of a competitive tender or part of AQP.”

There is not much time left to stop the government pulling the wool over people’s eyes.  Labour, backed by Green and Lib Dem backbenchers, has laid down a new Early Day Motion. Campaigners are urging all concerned about the NHS to write urgently to their MP, asking them to sign the new Early Day Motion (EDM) 1188 to overturn these regulations.  Keep Our NHS Public has produced two letters that people can use, which rebut in detail the government claims about these new regulations. These letters are here - one for MPs who signed the earlier, now invalid, EDM  and one for MPs who did not. Campaigners are also suggesting that people write to Lib Dem and cross-bencher peers raising their concerns.

What else can people do?  Well, 38 Degrees will be meeting health minister Norman Lamb this Thursday and is asking people to vote in a survey about what they should say to him.  Based on 38 Degrees legal advice, campaigners from Keep Our NHS Public and elsewhere are recommending that we should demand Norman Lamb scraps the new regulations and goes back to the drawing board until they can meet the promises that were made to the public, parliament and Clinical Commissioning Groups. Sue Richards from Keep Our NHS Public said, “we do not consider that the idea of more ‘guidance’ will do anything significant to protect the NHS from privatisation. ‘Guidance’ can be re-written any time the government feels like it, without any chance of parliamentary oversight.”

Finally, anyone who will be in London at 12 noon on 26th March is encouraged to join the lobby of parliament called by Save Lewisham Hospital and other campaign groups. Expect Lewisham’s famous ‘buggy army’ and a wide range of speakers

Far from putting competition ‘back in its box’ as some have suggested, these regulations roll out the red carpet to it. None of this is what we were promised, in fact quite the opposite – it is a fundamental and undemocratic change to our NHS. 

Campaigners are looking to MPs and peers of all parties to do everything in their power to persuade the government to scrap these regulations and go back to the drawing board.  In the mean-time we should let the CCGs get on with the job they were promised, of making decisions which genuinely reflect their judgement of what is best for patients.


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