Many of today’s campaigners have only dim memories – if that – of the Health and Social Care Act 2012 and how it was originally argued for by its author Andrew Lansley, and by leading Tory and Lib Dem politicians, in the teeth of opposition from almost every other party. So here JOHN LISTER looks back at the Act, the promises that were made and the grim results that show the need for its repeal.

The Health & Social Care Act (HSCA) 2012, which only affects England, was eventually pushed through parliament by the votes of Liberal Democrat MPs and peers supporting David Cameron’s Conservatives.

The Bill’s advocates made a series of misleading promises on how it would improve the NHS: instead, as its critics warned, it has made things worse. But now the HSCA is almost universally recognised to be not fit for purpose, with even NHS England pushing for parts of it to be repealed. Indeed the only argument against its repeal has been the claim that it would require another top-down reorganisation.

Six years of failure

The repeal of the 2012 Act is long overdue. Six long years since it came into force have proved beyond doubt that it cannot and will not deliver any of the promised benefits to patients or to NHS staff.

Government Fact Sheets explaining the basis for the Act in 2012 claimed it would deliver a number of improvements, among them:

“Clinically led commissioning; Provider regulation to support innovation; Greater voice for patients; New focus for public health; Greater accountability locally and nationally; Improved quality; Tackle inequalities; Promote integration; Choice and competition”

With the exception of competition, none of these has been delivered.

The promise that CCGs would be led by GPs, and that commissioning would therefore be “clinically led” was discredited before the CCGs had even been established in 2013: only a tiny handful of GPs, steered by management consultants, have ever involved themselves with CCGs. Far from being “clinically led” even the King’s Fund in 2016 admitted that “financial pressures mean CCGs are frequently required to take tough prioritisation decisions,”  and others flow from the requirement to put services out to tender.

The “changes to provider regulation” were focused not on innovation but on scrapping the cap on the level of income foundation trusts could make from private medicine and commercial contracts. Amendments to the Bill resulted in the Act lifting the limit to less than half the FT’s income – commonly interpreted as 49%. There are around 1,140 beds in NHS private patient units in 90 hospitals: they generate income of £600m a year, although there are no published figures on how much these services cost to provide. Some major London foundation trusts such as the Royal Marsden make as much as 36% of income from private patients, but with no evidence that this benefits NHS patients.

By contrast the NHS has increased spending on sending patients for treatment in private hospitals to £1.8 billion a year – not least because of the lack of capacity after closure of 8,800 general and acute beds as a result of austerity funding since 2010.

The “greater voice of patients” and the commitment to “no decision about me without me” was an empty promise from the beginning, since CCGs have from the outset been at least as insensitive to public views and resistant to public consultation as previous PCTs and health authorities.

The problem is set to worsen as CCGs – with little or no consultation – merge into ever larger and more remote bodies, some of which aim to cover 2 million people.

Public health services have been run down, sidelined and even privatised by local and national government since the HSC Act, with year on year real terms cuts in central government funding running alongside the 40%-plus cutbacks in local government funding since 2010.

Since the 2012 Act there has been significantly LESS accountability locally and nationally, with increasing levels of contracting out of services on contracts jealously guarded as commercial secrets.

At national level NHS England is even now driving through a top-down reorganisation and outsourcing of imaging and pathology services with no proper local consultation, and ignoring local voices challenging their decisions.

Far from offering improved quality of services, the Act has done nothing to prevent a massive all-round drop in performance against previous targets – with increased waiting times for emergency and elective hospital care, 4.3 million on rising waiting lists, long delays to access mental health care, growing delays in primary care appointments, and missed targets for swift treatment of cancer.

Health inequalities, which the Act was supposed to address have widened to extreme levels with a 16 year gap in healthy life expectancy between the wealthiest and most deprived areas, greater than the difference between the UK and Sudan.

Growing lists of treatments of supposedly “low clinical value” – including hip replacements and cataract surgery are being excluded by CCGs and NHS trusts, creating a 2-tier system in which only those wealthy enough to pay privately can access the care they need.

The empty promise that the Act would “promote integration” has been comprehensively discredited by the succession of measures subsequently taken by NHS England to sidestep the law in order to “integrate” services. Local government remains an under-funded and largely ignored subordinate “partner”. And within the NHS itself the Act has served to DIS-integrate services as CCGs, obeying its regulations, have carved services up into contracts and put out to tender.

At the core of the Act was the promise of “choice and competition”: but too many patients have seen their choice of local access to services overridden by cash-driven cuts and reconfiguration of trusts.

Meanwhile there is no evidence at all that competition has served to improve health services. This was clearly the view of the all-party Commons Health Committee in June this year, which noted that: “Competition rules add costs and complexities, without corresponding benefits for patients and taxpayers in return.”

Indeed the disadvantages of a regime of contracting and competition arise whether or not the contract is awarded to a private bidder. Carving up services into thousands of separate contracts, and subjecting them to competition tends to force cost cutting and reduce the quality of care even if an NHS provider wins: and it also disintegrates services by awarding contracts to non-local providers.

However there have been numerous contract failures by private companies that have gone bust or abandoned contracts leaving patients and the NHS in the lurch: there have been no compensating benefits.

The record speaks for itself. The 2012 Act has dislocated and undermined services, reduced accountability to local communities, ignored patients’ needs and concerns, further fragmented the NHS, obstructed efforts to secure collaboration between providers and between commissioners and providers, and opened up the danger of the £115 billion NHS budget being opened up to US and other corporations in future trade deals.

Anyone with any informed view has come to the conclusion that competition, contracting and market mechanisms have no benefit for health care systems and are an expensive encumbrance.

So the onus is on anyone who wants to keep this discredited and disreputable law in place to show what benefits it might offer to patients or hard-pressed NHS staff.

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