Constitutional Crisis

Jeremy Hunt doesn’t want to be remembered as the health secretary who presided over the worst NHS performance figures on record. As doctors were gathering evidence of patients dying while waiting for emergency care, Hunt was refusing a reshuffle and grabbing extra responsibility for social care. Theresa May knows that NHS and social care services aren’t going to find the staff and beds they need to recover anytime soon. More than 33,000 nurses gave up working in the English NHS last year, a rise of 20% since 2012-13. Over 10% of the nursing workforce have left the NHS in each of the past three years. There are now more leavers than joiners. Hunt remains a convenient lightning rod for the anger that was supposed to be directed at NHS England CEO Simon Stevens.

In November, Stevens was warned by May that he would be held ‘personally responsible’ if the NHS went tits up over winter, but Stevens’ very public protestations that the NHS urgently needed an extra £4 billion this year gave him a convenient get out when the chancellor only gave £1.6 billion. Hunt has used the word ‘unacceptable’ for NHS failings under his 6-year watch more than any other health secretary, but at least he’s now publically admitted the NHS and social care needs a long-term funding settlement, rather than being bunged a scrap from the treasury at each crisis point.

Hunt’s new job title sounds grand but thanks to the Tory’s own Health and Social Care Act, he is an irrelevance to the running of the NHS, which has been devolved to NHS England. Hunt’s role is to agree a yearly mandate with NHSE which fits in with the ‘rights’ of the NHS Constitution and the ‘outcomes’ laid down in the Act. Each year, the NHS must improve on 1. Preventing People from Dying Prematurely 2. Enhancing quality of life for people with Long Term Conditions 3. Helping people recover from episodes of ill-health or following injury. 4. Ensuring people have a positive experience of care 5. Treating and caring for people in a safe environment and protecting them from avoidable harm. Evidence of improvement is sorely lacking, particularly in premature death. Life expectancy in poor post-industrial towns and isolated rural areas in England has fallen by more than a year since 2011. People are dying from the same causes, but sooner than previously expected.

Hunt and Stevens are also bound by the NHS Constitution which gives English patients the ‘right’ to

1. be treated with a professional standard of care, by appropriately qualified and experienced staff, in a properly approved or registered organisation that meets required levels of safety and quality.
2. be cared for in a clean, safe, secure and suitable environment.
3. receive suitable and nutritious food and hydration to sustain good health and wellbeing.
4. be treated with dignity and respect, in accordance with your human rights.
5. be protected from abuse and neglect, and care and treatment that is degrading.
6. privacy and confidentiality
7. access certain services commissioned by NHS bodies within maximum waiting times

Many English NHS patients have had multiple constitutional ‘rights’ denied recently, and some will doubtless have died in doing so. Whether these rights will stand up in court remains to be seen. The tragedy is that the NHS does deliver truly exceptional care when it has the staff and capacity to do so, as the response to last year’s terror attacks illustrate. In emergency care, there is a golden hour for killers like sepsis, pneumonia, heart attacks, strokes and internal bleeding that relies on rapid diagnosis and a sequence of proven procedures that have to be done every time, quickly and consistently well. The NHS has got much better at doing this when it is safely staffed and patients are properly monitored in high dependency beds. But when critically ill patients are stranded at home, in the back of ambulance queues or down the end of a dimly lit corridor, it becomes impossible.

Hunt keeps repeating that the NHS came top overall of 11 countries in the 2017 Commonwealth Fund ranking of health systems but it came tenth for ‘health outcomes.’ Cutting the public health budget is not helping. The NHS scores highly for cost efficiency and equity because it does less of nearly everything, yet allows access to everyone. The total number of NHS hospital beds in England has more than halved over the past 30 years, from 299,000 to 142,000, while the number of patients treated has increased significantly and many are too sick for community care. The NHS is also facing a Brexit staff haemorrhage. We only need one health and social care secretary, if that, but we need 100,000 more clinical staff and 20,000 beds just to keep the Constitution afloat.

Poor Care

January is always a good time to dust off the 2015 Tory manifesto promise; ‘We will offer you the safest and most compassionate care in the world.’ NHS England is pretending we are ‘coping well with planned-for winter pressures’ but patients stranded at the back of a corridor trolley queue or staff on their knees with exhaustion might beg to differ. The same excuse as last year – ‘a spike in respiratory infections’ – is being wheeled out but the NHS has not been able to cope safely with all the extra demands placed on it since annual funding increases were reduced to a trickle in 2010.

Such crises were common in the nineties until Labour decided to temporarily match the EU average for health funding, the one political intervention that dramatically reduced waiting times for emergencies and non-emergencies alike. Now we’re returning to the days when elective operations are routinely shut down over winter. 15,000 beds have been cut from the NHS in England since 2010, £6 billion has been cut from the social care budget and there are 100,000 NHS and social care staff vacancies. Between 2003 and 2015 the population of England increased by 10 per cent, from 49.9 million to 54.8 million, and the number of people aged over 85 has increased by nearly 40 per cent. Care home debts has meant there are fewer experienced staff, scant falls prevention and a heavy reliance on the NHS for any medical problems. But the biggest rise in demand has come from people living with multiple long-term conditions, who are often poorer and socially isolated, and arrive in hospital cold, malnourished and dehydrated alongside their diabetes, dementia and heart failure.

The strong link between poverty and ill health was nailed by the Black Report in 1980, which found amongst other things that the death rate of the poorest men in the UK was twice that of the richest. Margaret Thatcher was so annoyed by the findings she released limited copies on a bank holiday Monday. Today, the rich live a decade longer than the poor, and the poor can expect 20 years more suffering from chronic diseases than the rich. An excellent analysis by the Nuffield Trust, hidden away on Christmas Eve, found that school-aged children from the poorest areas are two and a half times more likely to be admitted to hospital in an emergency for asthma than their counterparts in the richest areas, and this gap has grown substantially in a decade. Clearly, the crisis in the NHS will never be resolved without addressing the crisis of poverty.

Health secretary (at the time of writing) Jeremy Hunt has said his usual ‘sorry’ and bravely tweeted on December 15; ‘About to do my first Facebook live session: all are welcome, trolls and fans alike’. Alas, MD was working in the NHS, which does not allow access to Facebook (or porn), but on December 19 I politely tweeted ‘Dear @Jeremy_Hunt. The formation of Accountable Care Organisations in the NHS relies on the award of very large whole population budgets under long term contracts. Can you guarantee that these contracts will not be outsourced to the private sector? Please answer this, thank you.’ 15 days and many thousands of retweets later, no answer.

The private sector has been providing NHS care since 1991, and are now winning the majority of community care contracts, with scant evidence of improvement. ACO contracts would give companies a whole new level of long-term strategic control over NHS care, a bit like outsourcing entire health authorities. If we follow that route, we may as well outsource NHS England. Plenty of frontline NHS and local authority staff are currently working their butts off trying to develop voluntary public sector collaborations that should be the natural inheritors of ACO contracts when they have to be put to the market, as the Tory’s own health reforms demand, but there is a significant risk that unless they are given some form of legislative status, the private sector could swoop down and shovel up the contracts if they deem there to be some profit in them.

ACOs would in theory end the internal market, something the Tories introduced 27 years ago and has wasted a fortune on commissioning, tendering, retendering, management consultancy and legal fees. Life would now be a lot simpler for the English NHS if it had followed Scotland’s lead, ditched the internal market long ago and developed integrated Health Boards. However, structural reform doesn’t improve NHS performance unless you address the causes of the causes. Scotland too has huge levels of poverty related illness, unprecedented NHS demand and is missing many of its key targets (although not as badly as the English NHS). Happy New Year.

The End of the Nye

Professor Allyson Pollock, a senior consultant in public health medicine, gets far less public recognition than she deserves, because she has a track record of being right and spotting disasters long before anyone else has woken up. She was a fierce critic of the internal market introduced into the NHS by the Conservatives in 1991, arguing rightly that it would be wasteful and inequitable, and had no evidence base. In 1995, she pointed out the dangers of the NHS abandoning long term care of the elderly and farming it out to means-tested social care that transferred the costs of care, and the fear of paying for it, from society to the individual (precisely what Bevan was trying to reverse when he established the NHS 70 years ago) 

In 1997, Pollock was one of the first to highlight the lack of transparency, inadequate risk sharing and unaffordable long term costs of Private Finance Initiative projects, which are now crippling many hospitals. And she immediately saw through Andrew Lansley’s disastrous Health and Social Care Bill, campaigning vigorously for an NHS Reinstatement Bill that would restore the duty of the Health Secretary to provide universal care, rather than just ‘promote’ it, and end the massive waste and fragmentation of re-tendering community contracts every few years and outsourcing them to for-profit private companies.

With health secretary Jeremy Hunt and NHS England CEO Simon Stevens locked in a Mexican stand-off over whether the NHS has sufficient staff and funds to provide safe, timely universal care (it doesn’t), Pollock is again focusing on the policy, trying to enforce proper consultation before the English NHS rushes headlong into its latest ruse of US-style Accountable Care Organisations (ACOs). Hunt and Stevens hope to change secondary legislation to enable ACOs to operate in England but have consulted on technical changes only. In US ACOs, government and private insurers award contracts to commercial providers to run and provide services in defined locations, and thus far they have not produced great savings or massive improvements in care, although the idea of dissolving the boundaries between health and social care, and joining services up is a seductive one. 

In theory, a small number of very powerful English ACOs could be given multi-billion health and social care budgets, running the entire service for 10 or 15 years. Will they have the power to introduce more charges and erode universal care? Could entire ACO contracts be outsourced to the private sector, now or in future? ACOs are not recognised in the UK, and given the turmoil of Brexit, Hunt and Stevens are trying to rush them through without proper scrutiny or primary legislation, which would have to pass all parliamentary stages.

Pollock argues that ACOs ‘will be non-NHS bodies “designated” by NHS England, even though there is no statutory provision conferring such a function on NHSE. Behind the ACO it appears that there will be a network of companies—providers, subcontractors, insurance companies, and property companies—but the consultation is silent on ACO membership or their contractual relations. According to NHSE, ACOs will be in charge of allocating resources—effectively deciding which services are provided and to whom; which services are available free, through insurance, or out-of-pocket payments; and which services are to be means tested. They can take over patients on GPs’ lists, and they can subcontract all “their” services.’

Hunt and Stevens will doubtless try to ignore Pollock, so she and her supporters have recruited Stephen Hawking and filed a case in the High Court seeking a judicial review ‘to stop Hunt and NHS England from introducing new commercial, non-NHS bodies to run health and social services without proper public consultation and without full Parliamentary scrutiny.’ If Hunt and Stevens have nothing to hide, they would surely welcome the chance to set out their proposals openly and clearly in a White Paper, and to invite wide public and professional responses. And now that Parliament has woken up to its power, it could put Brexit on hold and focus on keeping the NHS honest. Just as not all NHS trusts can be trusted, accountability doesn’t just happen if you call an organization ‘accountable’.

You can support of donate to Professor Pollock’s campaign at @jr4NHS