NHS Underspending Part 94

The current row between the Health Select Committee and the government about how much is spent on health in England is nothing new, and neither is the lie that it will increase by £10 billion in this spending round. Health spending is roughly equivalent to the Department of Health’s budget, which was £116.5 billion in 2015/16. It will rise to £121 billion by 2020/21, and increase of £4.5 billion after inflation.  Within this budget, the government currently gives just over £101 billion to NHS England, (NHSE) which oversees the vast majority of health pending. The NHSE budget is set to rise by about £7.5 billion by 2020/21.  This means there has been a £3 billion cut in other health spending outside NHSE, on services such as public health, education and training. The bulk of the transfer to NHSE is happening in the first few years of the parliament, so funding may actually decrease after 2018.

And it gets worse. The rise in NHS costs every year, for things like drugs and staff pay, also tends to be higher that inflation generally, and the extra import costs due to the falling pound post Brexit will make another big dent in any increase. The King’s Fund calculates the overall real increase by 2020/21 could be just £1.5 billion if estimates of “the NHS-specific measure of inflation” turn out to be correct. The health analyst Roy Lilley estimates the increase could end up at just as £800 million.

The “£10 billion increase” in health spending the government keeps parroting is just in the NHSE budget, and over a longer time period, counting back from 2014/15. The government has cleverly redefined health spending as ‘NHS England spending’ in order to hide the £3 billion cuts in public health, education and training. Given that the Five Year Forward View devised by NHS England chief executive Simon Stevens relies heavily on better public health and training, the government’s claim that the £10 billion Stevens asked for to accompany the plan has been ‘delivered in full’ is nonsense.

Sadly, many of the assumptions in Stevens’ own plan were also nonsense, most notably that the NHS could make £22 billion in efficiency savings by 2020 despite rising demand year on year from a growing population, an increasing number of elderly patients, advances in technology and um, poor public health. Austerity is strongly linked with mental illness, and mental illness is itself a high risk factor for physical illnesses caused by smoking, alcohol and poor diet. So large cuts in the public health budget could be suicidal for the NHS. The childhood obesity strategy has been an early victim.

In essence the NHS is not overspent, it is underfunded for the work it is obliged to do to provide a universal, safe, high quality service. This gap between funding and demand (which increases between 4 and 6% year on year) has been calculated by numerous bodies to be £30 billion by 2020/21, hence the current need for £20 billion plus savings. The hope is that Sustainability and Transformation Plans (STPs), which have been developed for every region in England in secret, so as not to frighten the press and public about the extent of cuts and closures needed, hope to deliver better, cheaper care by transferring far more patients from expensive hospitals into community care using private providers. But the huge cuts in adult social care budgets make this highly unlikely to succeed on a large enough scale to make the savings required. In 2015/2016, the NHS in England had a funding gap of £3.7 billion, so STPs would have to be accompanied by a miracle to turn it into £22 billion savings.

Add in the 50,000 NHS clinical staff vacancies, work related stress, poor morale and the insecurity felt by vital oversees workers, and the NHS is set for a spectacular crash. Not that Jeremy Hunt and Theresa May seem too bothered. Privatisation of the health service is well advanced and unstoppable without an NHS Reinstatement Bill. Having a cheaper service (especially cutting expensive staff costs including doctors) will expedite this further. Brexit may lead to a contraction in GDP and the public will be poorer and reluctant to pay more in taxes for health. May will not go as far as advocating an insurance based system for all, but just leave those who can afford it to take out their own private insurance as the public service around them crumbles. Alas, there are no private emergency departments and few private GP services. The NHS is crucial to the economy, not a drain on it. If the government abandons the NHS as a threadbare service for the poor, we will all be the poorer for it.

Clear as Day

Now that health secretary Jeremy Hunt has ‘won’ his battle to impose a new contract on junior doctors that they believe cannot be safely staffed, it is vital that junior doctors have robust whistle-blower protection so they can raise concerns about patient safety without fear of reprisal. Under the umbrella of their union, the BMA, junior doctors felt safe to speak up en masse, but now the BMA is in retreat, it will be left to brave individual doctors to fight their corner on behalf of patients.

Undoubtedly one of the bravest is Dr Chris Day, who unearthed the scandal that 54,000 NHS doctors in training appear not to have any whistleblowing protection if they dare to speak up and are punished as a result. In 2014, Dr Day was working on the Intensive Care Unit at Queen Elizabeth hospital in Woolwich which at night routinely did not adhere to national staffing levels as defined in ICU Core Standards, putting patients at risk and placing huge stresses on the competent and dedicated staff. The Trust has accepted that a protected disclosure about safety and staffing was made to it on the night of 10 January 2014, but Dr Day refused move onto the next job in his training program until allegations about him, and the patient safety concerns he had highlighted, had been properly investigated. As a result, his training number was withdrawn by HEE and his career path to consultant was stalled.

In pursuing an employment tribunal claim against Health Education England (HEE) and Lewisham and Greenwich NHS Trust, Dr Day discovered how easily doctors in training could be argued out of whistleblowing protection and denied a proper investigation of the facts of their case. Whistle-blowing law is currently only located within employment statute, and so only provides protection from detriment carried out by employers. And yet legal responsibility for the employment status of junior doctors is a complex and arguable game of pass the buck. A Trust can be seen to employ a trainee doctor at any one point in time, but it is the local Deanery under the auspices of Health Education England that is the body responsible for his or her training and, ultimately, career progress.

It is the Deaneries and HEE who recruit doctors in training, supplying them to various Trusts, and monitoring the terms of engagement via an appraisal or ARCP process. It was HEE who threatened Trusts that they would not provide trainee doctors if they did not impose Hunt’s new contract, and so clearly should be held accountable in employment law. Dr Day and his legal team argue that the Deaneries and HEE are in fact acting as an employment agency for the purposes of Section 43K(1) (a) and (2) of the Employment Rights Act. It follows that Deaneries are employing doctors for the duration of their training programs for the purposes of whistle-blowing protection.

On 19 November 2014, Jeremy Hunt promised a “comprehensive response” regarding Dr Day’s whistleblowing case. On 8 December 2014, he changed his mind and proceeded to deny all legal responsibility for the case and for Health Education England, citing the Care Act 2014. Hunt further stated in his legal papers that he has “no knowledge of the facts in this matter and holds no documentation.” At his preliminary hearing on 25 February 2015, Dr Day – and 54,000 other doctors by implication – were argued out of the right to have whistle-blowing protection. Instead of fighting the case on the facts, the NHS, the Deanery/HEE and Hunt instructed four separate law firms to argue that none of them could be held legally responsible for the situation or Dr Day’s future employment, and an unfair dismissal claim was impossible. Two weeks later, Hunt made an order to grant statutory whistle-blowing protection to student nurses, but not doctors in training.

Dr Day won leave to appeal the preliminary judgement in August 2015, after Mr Recorder Luba QC observed: “there would appear to be a lacuna in respect of the ability of a junior doctor to complain of detrimental treatment on account of a protected disclosure at the hands of the body responsible for his or her training and, ultimately career progress.” The Court of Appeal deemed his case to be ‘clearly arguable’ and ‘a matter of some importance.’ You would imagine the BMA would support Dr Day to the hilt, to fight for whistle-blowing protection for all doctors in training, but shamefully it isn’t. It initially supported the case but 5 working days before the claim had to be submitted it withdrew all legal help, leaving Dr Day, who has a young family to support, to crowdsource funding alone. MD resigned from the BMA over its treatment of whistle-blower Ed Jesudason, who it is still suing (Eyes passim). You can support Dr Day’s appeal at www.crowdjustice.co.uk/case/junior-doctors/

Command and Control

As the son of a Royal Naval commander, Jeremy Hunt was never going to be shy about commanding the NHS. In four years, he has become possibly the most controlling health secretary the NHS has endured. He picked and ‘won’ an entirely avoidably battle with junior doctors by persistently threatening to impose a new contract on them and then arguing in court that imposition was never his intention. The new contract is not being imposed, it is merely the only one being offered. In his conference speech, he pleaded with junior doctors ‘let’s not argue about statistics’ – or rather, who needs science when you can force changes through with ideology? Hunt has at least noted that Britain has fewer doctors per head of the population than 23 of its European neighbours, with gaps in rotas a persistent safety concern. Hunt’s antics may have driven some doctors out of the NHS, so now he is commanding his way out of trouble.

Hunt’s conference announcement to increase the number of doctors in training by ‘up to 1500 a year by 2018’ is welcome, but he didn’t say how it will be funded. The first batch won’t graduate until 2023/24, and won’t apparently be able to leave for 4 years unless they pay back their training costs. A bigger issue for workforce planners is that many doctors– both male and female – choose only to work part time in the NHS because the full-time workload is too unsafe and stressful. So a 25% increase in doctors in training may have much less impact than hoped, especially if some of the 25% of NHS doctors currently come from overseas leave, or a forced to leave, post-Brexit.

NHS nursing shortages are even more acute – there were 30,000 advertised nursing vacancies in January to March, compared to 9,000 medical vacancies. The government has removed the cap on nursing places but scrapped nursing bursaries, and Trusts are under such pressure to balance the books, safe staffing guidance has been buried and nurses are still having to care for far more patients than it is safe to do so. Irrespective of how many staff you train, you can only retain them is they feel supported, motivated and safe. No-one goes to work in the NHS expecting it to be easy, but the NHS has the highest levels of work related stress, staff illness, bullying and discrimination of any organisation in the UK. 26.8% of NHS staff have significant anxiety and stress – 50% higher than in the general population. And long-term, unremitting stress causes illness and even premature death.

Chronic staff shortages are driving the centralisation of services to fewer sites, with widespread unit and even hospital closures planned. The public will have little say in it all. Sustainability and Transformation Plans (STPs) have been developed with no public consultation for most NHS regions, along with 2 year planning guidance from NHS England with tough financial restrictions and a host of ‘system control totals, STP-level assurance and performance metrics and a strengthened STP wide risk pool.’ Very few doctors understand the jargon, never mind patients, but in essence NHS England chief executive Simon Stevens and Hunt are doing a strategic dance of death around the NHS debt to see who gets blamed if parts of the service collapse. Expect a lot of mergers, chains, federations and more desperate pleas to the private sector to step in and ‘outsource’ NHS services. Staff are generally not consulted in the process, merely told that their jobs and pensions have been outsourced.

And then there are the regulators. The Care Quality Commission and NHS Improvement expect excellence and efficiency in a service where demand grows by 4-6% each year but funding increases are a mere fraction of this. The burden of inspection is growing, and almost impossible for small practices. Spare a thought for Dr David Zigmond, a single handed GP in Bermondsey with an unblemished 40 year career, cared for and happy staff and patients and no serious complaints. In 2014 he had a very satisfactory CQC inspection but the bureaucratic requirements of his 2016 inspection were so great, he decided to be a conscientious objector and refused to comply with what he saw as a draconian, exhausting, industrialised tick-box process. Having got red crosses in nearly every CQC column, his practice was promptly closed down by NHS England. And yet having spoken to him at length, Dr Zigmond is just the thoughtful, insightful, rebellious and humorous GP MD would want for himself. Too much ‘clinical freedom’ can breed dangerous doctors, but too much command and control kills the spirit of rebellion. We should be grateful for junior doctors and Dr Zigmond.

Justice for Health

Health Secretary Jeremy Hunt has only himself to blame for last week’s High Court challenge from the crowd-funded campaign group Justice for Health. When Hunt declared repeatedly, in Parliament and in public, that he would impose a new job contract on all junior doctors if the majority rejected it, it became vital to ascertain whether he had acted lawfully and has the legal power to impose. His rationale for imposition – based on flawed interpretation of mortality data to support an ill-defined, unplanned, uncosted and unstaffed ‘truly 7 day NHS’ manifesto pledge also deserved legal scrutiny

In two days, five junior doctors and their legal team caused more embarrassment for Hunt than the BMA managed in three years. Hunt was represented by his human shield, Department of Health director general Charlie Massey, who appeared as ill-informed as he was in his disastrous public accounts committee outing (Eye last). Massey claimed staff rota gaps are ‘not a problem’ in the NHS. And yet a timely report from the Royal College of Physicians (RCP) has found that 7 out of 10 doctors in training reported working on a rota with a permanent gap, and 96% reported gaps in nursing rotas. Higher up the tree, 40% of consultant physician posts advertised go unfilled. The crux of the argument against Hunt is that we don’t have enough staff to safely fill current rotas, so introducing a contact to extend more rotas over weekends can only be done with more staff.

The fact that the GMC has chosen to appoint Massey as its new CEO when he is clearly too close to Hunt and too far removed from reality may well spark a widespread refusal of doctors to pay their subscriptions to the supposedly independent regulator.  Glasgow GP Dr Margaret McCartney has started a campaign for all doctors to join in evidence-based industrial action, and to refuse to do bureaucratic tasks that are of no proven benefit to patients, such as health checks, appraisals and parts of CQC inspections. This would infuriate government and the medical establishment, but have the added benefit of releasing more time to spend with patients, rather than harming them by striking.

The RCP report nails the current NHS crisis – waiting lists at their longest since 2007, 1.8 million days spent in hospital due to delayed discharge last year, treatments rationed and hospitals shutting when they are full. Junior doctors work on average 5 weeks a year more than they are rostered to cover staffing gaps. 80% report excessive stress. Hunt knows extending services is impossible without more investment and more staff, but unlike junior doctors he is afraid to publically voice this truth.

Indeed, Hunt’s very expensive High Court defence (five QCs, taxpayer funded) merely succeeded in making him appear less competent and trustworthy. They exhorted Justice Green not to hold Hunt accountable for anything he said in the ‘hurly burly’ of parliament – even when he read it from a carefully prepared statement. His repeated parliamentary and public promises to impose the contract and his threat to unleash ‘the nuclear option’ on junior doctors were apparently just gentle guidance. His insistence that he had the legal power to impose did not mean he ever sought to impose. Most absurdly, there was not ‘a scrap of evidence that any junior doctor felt the secretary of state was compelled to impose a contract.’ The evidence of the weekend effect was indeed disputed, but ‘was the secretary of state supposed to wait for the evidence? We say he wasn’t.’ He just makes stuff up.

The BMA too would suffer under such scrutiny. It agreed a contract with government in May which its members comprehensively rejected, despite its then junior doctor leader declaring it ‘a good deal for junior doctors and will ensure that they can continue to deliver high-quality care for patients.’ It recently unleashed its own nuclear option of a cluster of five day strike threats which it has now dropped due to lack of member support. Seldom has a union seemed so out of touch with its members. Where many doctors and the BMA agree is that they simply don’t trust a government that they believe is deliberately defunding the NHS, outsourcing as many services as it can to the private sector and dangerously overworking the staff. Whatever Justice Green’s ruling on Hunt’s lawful behaviour and legal powers (due September 28), the government and NHS staff will remain ideologically poles apart. Ultimately, the public should decide how much money to put into the NHS, how it should be done, what services should be provided and whether they should be publically or privately run. But despite the promise of public involvement in ‘your NHS’, you won’t be given a say.