The Abolition of the democratic and legal basis for the NHS in England
The democratic and legal basis for the NHS in England was abolished by the Health and Social Care Act 2012. The impact of this fundamental change is already being felt, ahead of the shift to the new market system in April 2013.
The Act ended the Secretary of State’s duty to secure or provide health services throughout the country, a duty that had been in force since 1948.
A minister may only be held to account legally for services that he or she is responsible for by law. In future, if we can’t get the health care we need, ministers won’t have to worry about being taken to court on this count, and there will be no Primary Care Trust to put pressure on. This means fewer rights for people in England to get the health care we need – at a time of unprecedented cuts and closures.
The Act breaks up the universal system that has served us for over sixty years, and reduces the NHS to a stream of taxpayer funds and a logo for the use of a range of public and corporate providers of services.
A House of Lords’ bill published this week will reinstate the Secretary of State’s legal duty to provide the NHS in England and the right of all of us in England to comprehensive and integrated health care.
By restoring the legal and democratic basis, the new National Health Service (Amended Duties and Powers) Bill will ensure basic questions about citizens’ rights will continue to be determined democratically, as they should be.
This briefing explains what the government is doing and why an urgent bill to reinstate the NHS in England is required.
What does the government’s Act mean for me?
Cutting free NHS services
When the 2012 Act is implemented, the government will no longer be responsible for providing for our health care needs free of charge. The system of health care which has served all people throughout England for over sixty years is being dismantled and broken up. Instead a range of bodies, including for-profit companies, will decide which services will be freely available and who will receive them.
Currently many NHS services are being transferred to local authorities. They can bring in commercial companies to run them and the 2012 Act provides new charging powers. During the passage of the Health and Social Care Bill last year these services included:
- immunization, cancer and cardiovascular screening
- mental health care
- dental public health
- public health
- sexual health services
- management of drug and alcohol addiction
- emergency planning and health protection service
- child health services.
Concerns were repeatedly raised during the passage of the Bill that some services would no longer required by law to be provided free of charge. These services included: 
- Services and facilities for pregnant women, women who are breast-feeding
- Services for both younger and older children
- Services for the prevention of illness
- Care of persons suffering from illness and their after-care
- Ambulance services
- Services for people with mental illness
- Dental public health services
- Sexual health services
Putting commercial companies in control
The Act also promotes more marketisation. More and more NHS services are being put out to tender to for-profit companies and taxpayer funds are being given to commercial corporations whilst publicly run health facilities are closed down.
As the 2012 Act is being implemented, corporations will have more say in determining our entitlement to free health services. In future, no single organisation will be responsible in our area for ensuring all our care. And it will no longer be clear who should be held accountable when things go wrong.
Our relationship with our doctor will change when for-profit companies run more services. As a patient we will no longer necessarily come first: how can we feel confident that our doctor is putting us first when he or she is a for-profit company employee?
Privatisation and marketization has increased in advance of the Act.
Some services, including those for the most vulnerable people in society, were last year contracted out to for-profit companies such as Virgin and Serco, which have little or no experience in delivering care. These include services for children with mental health problems and physical disabilities in Devon, and community nursing and health visitor services in Surrey and Suffolk.
Many NHS hospitals are owned and operated under the expensive private finance initiative, creating serious financial problems for them and putting neighbouring hospitals and services at risk. For-profit companies and investors now control GP practices and other local health services. According to the Financial Times, Virgin already earns around £200 million a year by running more than 100 NHS services nationwide, including GP surgeries. A private company registered in the Virgin Islands now manages the local hospital in Huntingdon, Hinchingbrooke NHS Trust.
The government is manufacturing a financial crisis in the NHS.
It is clear that the government is manufacturing a crisis, reducing the level of services and their quality, and shaking public confidence in the NHS. We are being encouraged to accept the principle that we will in future have to pay privately for services that were once free.
But claims that we can no longer afford the NHS are untrue.
The NHS is not over budget. Last year the NHS budget was underspent and £2 billion was returned to the Treasury. Headline stories about hospital and other health service deficits only mean that resources are unfairly distributed not that the NHS is unaffordable overall.
Government claims that it is protecting the NHS budget are also untrue.
According to the official watchdog, the Statistics Authority: “expenditure on the NHS in real terms was lower in 2011-12 than it was in 2009-10.”
The NHS is being run as if it is in a financial crisis but this crisis is of the government’s making. Current plans for cutting NHS budgets, hospital beds and sacking thousands of vital NHS staff are based on documents drawn up by management consultancy firms including the US company, McKinsey & Co. The policy will lead to closure and hollowing out of public services and the creation of opportunities for an expanded market for private provision and the introduction of user charges.
The policy is fuelling cuts, closures and mergers on a scale that is unparalleled. There is no evidence to support change on this scale nor the unfair distribution of funds.
Cuts and closures
- In North West London the government plans to cut 25% of beds, and throughout London at least 7 accident and emergency departments will close, with further departments under threat. Up to 5600 jobs in North West London will be lost by 2015. Barnet and Chase Farm Hospitals NHS Trust is cutting 208 posts.
- In Merseyside, 4000 NHS jobs will go by 2014
- In South Yorkshire, Rotherham Hospital is set to lose 750 staff by 2015
- In West Suffolk, Serco is planning to cut 137 Community Healthcare jobs.
- In Devon and Exeter, the Royal Devon and Exeter NHS Foundation Trust plans to cut 1115 full-time equivalent posts between 2011 and 2014.
- In Greater Manchester, there are plans to downgrade Trafford General Hospital’s A&E to urgent care and cuts to intensive care, acute surgery and children’s services.  Maternity services have already closed. Salford Royal NHS Foundation Trust plans to cut 750 full-time posts by 2013.  Bolton NHS trust is making 500 redundancies.
- In Warwickshire, the George Eliot Hospital NHS Trust plans to cut the equivalent of 257 full-time staff between 2010 and 2014.
- In Cornwall, Royal Hospital Truro proposed to cut 400 jobs in 2011.
- In Portsmouth, Queen Alexandra Hospital cut 700 jobs and shut 3 wards in 2011.
- Across England, twenty four out of thirty NHS Direct call centres will close
- 6000 nursing posts have been cut since the coalition came to power in 2010.
Hospital mergers reduce services and increase waiting times and travel distances.
- Merger with North Tees was followed by closure of A & E in Hartlepool in August 2011
- Merger of South London trust is followed by recommendation of closure of Lewisham hospital A&E. 
- Merger of Queen Mary’s Sidcup NHS Trust (QMS), Queen Elizabeth Hospital NHS Trust (QEH) and Bromley Hospitals NHS Trust (BHT) to create a single hospital on several sites in 2009 was followed by closure of Queen Mary’s A&E and labour unit in 2010.
- Merger of Norfolk and Waveney and Suffolk mental health trusts was followed by cuts in beds for acute mental illness and community mental health teams
- Barnet and Chase Farm Hospitals NHS trust currently plans a merger which is likely to result in closure of A&E, maternity and paediatric services .
- Merger resulted in closure of Trafford General Maternity Unit in 2010 and A&E is threatened.
- Merger with Blackburn Hyndburn and Ribble Valley (BHRV) NHS Trust in 2003 was followed by closure of Burnley A&E in 2008 and the paediatric inpatient ward in 2010.
- Merger resulted in closure of Rochdale Infirmary, Greater Manchester A&E in 2011.
Why a Bill is needed to reverse the worst aspects of the Act?
The Health and Social Care Act 2012 must be changed because it removes the democratic and legal basis of the NHS at a time when services are being cut and reconfigured on an unprecedented scale.
The NHS was created in 1948 by a law requiring the secretary of state to fund and provide all medical, dental and nursing care to the whole population on an equitable basis throughout the country. This duty has been abolished.
The government has no mandate for this Act. We did not vote for the abolition of our NHS. Neither was it a part of the coalition agreement. Unlike England, citizens of Scotland, Wales, and Northern Ireland will continue to have a NHS.
The purpose and limitations of the urgent Bill
The proposed legislation restores the legal and democratic basis of the NHS and the citizens’ rights ultimately to hold the Secretary of State to account. It will restore the Secretary of State’s duty to provide the NHS in England and gives him or her ministerial powers of direction and planning in order that the duty can be properly discharged.
Specifically, the Bill will:
- reinstate the secretary of state’s duty to provide health services that was formerly contained within sections 1 and 3 of the NHS Act 2006;
- subject all NHS bodies and bodies providing services for the NHS to ministerial direction;
- repeal the duty of autonomy and restore sufficient ministerial control over provision consistent with the secretary of state’s overarching duty to provide health services to the whole of England; and
- give Monitor an objective, so that its purpose is to help deliver the NHS.
The Bill will not require further reorganization when it is passed.
Allyson M Pollock (Professor of Public health research and policy,
David Price (Senior Research Fellow)
Global health, policy and innovation unit
Centre for Primary Care and Public Health
Queen Mary, University of London
58 Turner St, London E1 2AB and R
 Pollock AM, Price, DP, Roderick, P. How the Health and Social care Bill2011 would end entitlement to comprehensive health care in England, January 26, 2012 DOI:10.1016/S0140- 6736(12)60119-6
 Pollock AM, Price D, Roderick P. Health an social care Bill 2011: a legal basis for charging and providing fewer health services to people in England. BMJ 2012;344:1729- 82
 Department of Health: Securing the future financial sustainability of the NHS, Sixteenth Report of Session 2012–13, House of Commons, Committee of Public Accounts http://www.publications.parliament.uk/pa/cm201213/cmselect/cmpubacc/389/389.pdf
 ‘Can governments do it better? Merger mania and hospital outcomes in the English NHS’, M Gaynor, M Laudicella and C Propper, CMPO working paper 12/281 http://www.bristol.ac.uk/cmpo/publications/papers/2012/wp281.pdf
 http://www.healthemergency.org.uk/breakingnews.php Tuesday 23rd October 2012