A bill to re-instate the NHS?

A new bill to reinstate the legal and democratic basis of the NHS in England has been laid before parliament in the House of Lords by David Owen. Here, to launch our new NHS section, Owen writes for openDemocracy on why it is both essential and urgently needed, to re-establish the principled public health service so valued by the English public.

David Owen
28 January 2013

Watching the Olympic Games opening ceremony and seeing Danny Boyle celebrate the National Health Service through hospital beds and patients in Great Ormond Street Hospital, I suddenly felt my spirits lift. The despair at the passing of the Health and Social Care Act last year seemed to vanish and I began to think about the next General Election: how could we ensure that the people’s voice would be heeded, how could we secure the reinstatement of the essential legal and democratic basis for the NHS in England?  What type of legislation would be needed so that any incoming government could restore the Secretary of State for Health’s duty to promote and provide a comprehensive, integrated health service whilst at the same time avoiding a further ‘top down reorganisation’? 

I decided that the best way to proceed would be to consult experts in the NHS and skilled Parliamentary draughtsmen and present a Bill, as any Peer can, to the House of Lords.  This I have done today.  It is not set in concrete.  When Parliament finishes its present Session, expected sometime in May, there will be an opportunity to introduce a new Bill in the next Session and, again acting on expert advice, I will make any sensible amendments to the Bill suggested by the public.  On the assumption that there is one other Session of Parliament before the General Election I will open the Bill up in a similar way to amendments.  Whether I decide to push the Bill to debate and Second Reading will depend on the political atmosphere in the House of Lords and whether the Bill has a chance of getting through.  The main aim, however, is to have a Bill that will have been tested by public opinion in by-elections and in a General Election ready for a new government, allowing them to urgently put it before both Houses of Parliament and enact it within the shortest possible period, hopefully no more than three months. 

Some will say why go to all this trouble; if a Labour government wins more votes than the Conservatives it will not be necessary.  The answer to that question is that some of the changes which we are proposing in this short Bill amend both Labour and Conservative legislation, both  the 2006 and the 2012 Acts of Parliament.  It is also not enough to have a new government and a new Secretary of State for Health.  The Health and Social Care Act of 2012 is drafted so that decision making is not controlled by the Secretary of State who only has severely limited powers of intervention.  A Cabinet, let alone a Secretary of State, does not change the law of the land merely by being elected – they have to legislate and there are many pressures on them for urgent legislation.  A short Bill that has been discussed over a few years, championed in elections and has won the support of the vast majority of people who work in the NHS, should be able to win the competition for legislative time.  A government that seeks to act in advance of the legislation could well be repulsed, subjected to judicial review and challenged in the courts of law.  This 2012 Act was especially drafted to take away the powers of the Secretary of State and vest huge power in the largest ever quasi-autonomous, non-governmental organisation, or Quango, the NHS Commissioning Board. The commercial entities that will start to marketise the NHS from April 2013, in ever increasing numbers, will not be willing purely because of a General Election to acquiesce in the stopping of contractual negotiations.  They will want to push ahead and get in under the wire.  It is also necessary to make crystal clear that it is very unlikely that such commercial organisations could guarantee on tendering for an ever increasing flow of NHS contracts after the next General Election.

This Bill does not attempt to change all aspects of the NHS in England, and I stress England because it is important to remember that the democratic NHS still continues in Scotland, Wales and Northern Ireland where it remains answerable to democratically elected politicians.  Some may ask why do I stress democratic?  I do so for a quite simple reason. Expenditure on health care can never be infinite and after the substantial increase in expenditure in the early part of the 21st Century, under a Labour government, it is very unlikely for decades ahead that we will see the same step-like expansion in health care spending as a percentage of GDP.  We are living, whether we like it or not, with a rationed health service and have been in that situation for decades past.  The NHS’s Medical Director, Professor Bruce Keogh, told MPs on the House of Commons Public Accounts Committee in January 2013 that he had been “deluged” with complaints because half of NHS Trusts are putting curbs on surgery; restrictions started in 2010.  He admitted that people needing cataract operations and hip and knee replacements faced different hurdles for receiving treatment depending on where they lived.  This overt rationing has become ever more apparent as this coalition government has forced upon the NHS a top down reorganisation which they had explicitly ruled out in both a General Election campaign and the Coalition Agreement. 

Now we have a choice.  We can either ration health service by quangos and health bodies that have been deliberately taken out of democratic control, or we can restore the democratic basis of the NHS.   All the evidence is that one of the reasons Danny Boyle was able to touch the heart strings of so many people in this country is because the NHS has remained by far the most popular public service. And it’s because people sense that rationing and restrictions are inevitable, and resources limited, that they value the fairness of those decisions being taken not by market forces or quangos but by democratic, open, transparent decision-making. 

The only way that this spirit of the NHS can be maintained is by enabling the Secretary of State, guided by the Cabinet, to be able to change markedly unfair practices in different parts of the country. We recognise in this legislation that the NHS has been and will increasingly have decentralised decision making structures.  We recognise too that there has to be pressures for cost effectiveness, best practice and a capacity to address the problems of Cinderella areas like mental illness and dementia.  In removing the autonomy provisions of the 2012 Act we are not seeking to go back; what we are seeking to do is to curb the fragmentation that inevitably comes with marketisation.  We stress the role of integration within the NHS and with all its partner organisations, voluntary hospice movements, the not-for-profit organisations, as well as in some selected areas commercial provision that is capable of providing financial yardsticks to stimulate improvement in NHS cost control. 

All the problems that came with the national health service did not start in 2010 and the coalition government.  Some of these were introduced by Prime Minister Tony Blair.  The appalling neglect revealed by the report on the Mid-Staffs Hospital Foundation Trust preceded the coalition government. All hospitals have relied on some temporary staff but the sharp rise in agency nursing demonstrates how market attitudes have led to agency nursing being used routinely.  The total bill for temporary nurses will reach £450 million by the end of this financial year, a 21% rise from 2011-12.  Even the Mid-Staffs Foundation Hospital Trust, which was meant to have been reformed, paid £1,794 for a specialist nurse to work 13.5 hours in A&E in December 2011, the equivalent of an annual salary of  £230,000 when the NHS pays between £25,528-£34,189 for a nurse for the same role.  I am not in favour of witch hunting or of exaggerating the problems of the NHS but for those of us who support it we must not be blind to its defects.  There do have to be changes but neither scientific research, commonsense nor logic give any indication that the way forward is through the ethos that underpins the 2012 Act. 

There are some who will want us in this Bill to have got rid of the NHS Commissioning Board, to have made large structural changes.  To embark on this course would have been to follow the coalition government’s disastrous reorganisation.  I have some experience of this.  I became responsible for the health service under Barbara Castle on 6 March 1974.  The previous Conservative government’s National Health Service Reorganisation Act, heavily influenced by the management consultants, McKinsey, received Royal Assent on 5 July 1973.  It was the law of the land but its implementation and new structure was set for the 1 April 1974.  To reverse that reorganisation in 24 days would have required immediate legislation and the ensuing delay would have been chaotic.  Barbara Castle was the new Secretary of State for the massive Department of Health and Social Security, as it was called in those days. She was a determined politician who disliked the reorganisation as much as I did, but she decided with me that we could not risk the NHS and we accepted the legislation.  I believe such a decision would face any new Secretary of State again if the General Election is held and the government changes in May 2015.  What is needed, therefore, is a short Bill capable of being implemented quickly and with surgical precision, filleting out the ideological nonsense of a reorganisation that only the ideologues wanted and has damaged the health service in every month since it began to be implemented.

In this way a new government will have the powers to change the NHS, but in a way that brings stability not chaos and has all the power, decisively used, to reverse the marketisation of health, the treatment of health as just another utility, like gas, electricity and water and to reinstate not just its democratic base but its values.  The NHS is, in essence, a vocational service.  It needs to be better managed, better staffed and better equipped but it should still retain within it the generosity of purpose and the philosophical commitment that enabled many people in 1948 to rejoice at the way Britain had transformed its health care.  No one pretends that the NHS of 2012 can or should be the same as the NHS of 1948.  But this reform, imposed without democratic endorsement at a General Election, cannot be sustained.  This Bill, if it becomes an Act in 2015, will come just in time to save it from the worst ravages of an external and full-blooded market. 

Any suggestions for additions or deletions to this Bill should be sent to:

Lord David Owen, House of Lords, London SW1A 0PW.

The full text of the bill can be read here.

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