Socialist Health Association, London

comments on Efford Bill by Jos Bell (http://

sochealthlondon.com/blog/4584293153 -SHA
is a Labour Party affiliate)

Jenny Shepherds comments on SHA

comments

The Clive Efford Private Members Bill speaks

directly to the Health and Social Care Act
2012, reversing key aspects back to the 2006
Act. Some people have professed themselves
disappointed that its doesnt turn the clock
back further, or reach into a full repeal of the
H&SCA. However this is a PMB, not a full
blown bill and by that token is more limited in
its capacity. However as Andy Burnham says
this is just the start. The Efford Bill is an
indicator, a touch paper to overturning the full
weight of Lansleys behemoth...

Reversing key aspects back to the 2006 Act

means that it keeps the NHS on the New
Labour governments NHS privatisation track.
This was criticised by the House of Commons
Health Committee in 2010, which advised that
NHS privatisation as costing 14% of the NHS
budget and should stop. The Efford Bill is not
limited at all, its radical, and not in a good
way. It simultaneously removes and restores
the subjection of the NHS to EU Competition
law, and jiggles with Alice in Wonderland
definitions of when an NHS contract is not an
NHS contract, in order to make it possible to
apply/remove EU competition law to the NHS
according to an agenda that would see the NHS
firmly within the remit of TTIP, and under a
monopoly private Commissioning Support
Unit that would apply across the whole of the
English NHS.

There are 5 parts :

1. Amendments to Sections within part 1 of the

National Health Service Act 2005 as amended
by the Health & Social Care Act 2012

2. Amendments to the financial powers of NHS

Foundation Trusts and NHS Trusts as amended
by the Health & Social Care Act 2012

3. Amendment of provisions in the Health &

Social Care Act 2012 competition and
procurement in the health service and
connected amendments

4 The NHS an National or International

Agreements

5 General

Part 1 goes straight into the restoration of the

duty of the SoS ie ministerial responsibility
indeed it contains a definitive must that the
incumbent exercise their function; a theme
which is repeated again and again through the
Bill. It also emphasises a fundamental
reclamation of the Bevan ideal that of a
comprehensive health service based on social
solidarity as well as in the general economic
interest both totems that we should all hold
dear.

The Efford Bill does not restore the duty of the

Sec of State to provide a comprehensive
equitable NHS that is free at the point of
delivery and based on patients clinical needs.
Part 1 Section 1 has a Duty on the Secretary of
State to promote comprehensive health service
based on social solidarity.

There is logically a wrap-around duty upon the

SoS to promote the service with a view to
securing improvement in physical and mental
health and in the prevention, diagnosis and
treatment of physical and mental illness. Cooperation not competition is the desired model
of dealings between health providers and
community care providers are not left out of
this requirement.

There is no comprehensive state provision,

Efford Bill (EB) Part 1 section 2b places the
market in charge, by categorising the NHS as a
public service which delivers services of
general economic interest. SGEIs are subject
to EU competition law which means private
companies have a legal right to bid for
contracts to deliver their services

The free of charge principle is re-established

bearing in mind that the 2012 act sneaked
through a variety of waivers to this provision,
including maternity services ( check the room
charges which many new mums have found
themselves landed with on what they thought
to be free at the point of use NHS wards ). The
clause still allows for some leeway for private
patients where expressly provided for - but
under new terms and conditions which pull
back the emphasis onto NHS patients.

EB Part 1 section 4 preserves the right for the

NHS to charge for services: The services
provided as part of the health service in
England must be free of charge except in so far
as the making and recovery of charges is
expressly provided for by or under any
enactment, whenever passed.

Commissioning and procurement must take

place in a spirit of co-operation and social
solidarity and choices must be consistent with
the overall interests both of the health service
and those who use it. Anti-competitive
problems are also mentioned but in the
context of patient interest, presumably
following the Bournemouth/Poole debacle
where anti-competitive law prevented a merger
of two hospitals which would clearly have
benefited their communities.

Advocating cooperation and social solidarity

is a legally meaningless piece of spin. Part 2 of
the Efford Bill gives the Sec of State massive
powers without checks and balances, that allow
the Sec of State to make sure that any person
who is concerned in commissioning or
providing health services for the purpose of the
health service...does not engage in anticompetitive...behaviour... This insists on the
role of competition in commissioning and
providing NHS services. And it undermines
Labours claim that NHS will be 'preferred
provider' by including this provision, that gives
Health Secretary 'final and binding' decision on
claims of 'anti-competitive behaviour'. So if the
NHS really is the only body capable of
providing a service and uses that in its bid, a
private healthcare body can take those claims
to the Sec of State who can then overrule the
NHS as preferred bidder. Instead of setting up
this authoritarian concentration of power in the
hands of the SoSH, the authors of the Efford
Bill could have taken the NHS out of the
competition law net, by committing to run the
service as a Non-economic Social Service of
General Interest.

A patients right to choose is protected, but

only in line with overall interests of the health
service- so choice cannot override all. How
would this impact in a case of Ashya King, the
child whose case was so badly mishandled by
Southampton NHS Trust, and who has since
undertaken proton therapy would remain to be
seen.

Efford Bill Part 2, Section 1b (on rights for

patients to choose treatments and healths
services) protects the market in the NHS hence access for private cos - as a way to
enhance choice based on neoliberal
economic theory. Privatising deprives the NHS
of income to pay staff and overheads.

Upon enactment, guidance on these matters

would be published and it is also written that
the SoS can ask for help so we can be certain
that clinical advice will be put into the mix,
rather than decisions being taken purely on the
basis of monetary profit. In the case of any
disputes, where a health service body/or
provider has acted contrary to interests of
relevant bodies, there will be the requirement
to refer to the SoS who can adjudicate or
appoint another as they consider appropriate. It
seems that decision would be final and binding
rather than the CCG overriding all. We should
note that this relates to commissioning rather
than re-configuration, so this does not repeal or
amend Clause 118.

No way, see comments elsewhere on EB

powers for Sec of State.

Under the restored duty, the SoS must arrange

for the provision of accommodation, including
hospitals to cover medical, dental, ophthalmic,
nursing and ambulance services, pregnant and
breastfeeding women also young children.
The Sos will have a duty to the prevention or
illness, care and after care of the ill, plus other
diagnostics and treatment. In short the SoS has
got back his day job !

The SOS does not get back the powers they

originally had, and they get new powers that
entrench NHS competition/privatisation. See
comments elsewhere for details.

Of course the SoS can delegate some/all of it to

the Board or CCG/primary care provider and
others as they see fit, but they must adhere to
whichever necessary performance directions
the SoS chooses ( presumably meaning that
any contract which involves the private sector
must now be just as accountable as state run
provision, rather than being let off with the
Lansley nod).

This is a massive and unfounded presumption.

High security psychiatric services are given

special mention, reflecting clear concerns that
the H&SCA has allowed dangerous loopholes
in the management of Ashworth, Broadmoor
and Rampton.

The Bill brings provision back under the

umbrella of NHS Contracts - however the
inclusion of those not necessarily directly
employed by the NHS recognises that there is
insufficient capacity with the NHS to deliver
all services, and indeed that it will take some
time to turn the Lansley-Hunt tide. However
the NHS and the SoS will be firmly in control
of delivery.

Efford Bill Part 2 Section 6 NHS Contracts

Subsection 1 Maintains the market in the NHS
as set up by NHS Act 2006. This commercial
market is what attracts competition law
compliance duties to allow companies to bid
for all NHS funding and to receive equal
subsidies to those available to state-run
hospitals. This Part 2 Section 6 of the Efford
Bill also includes much Alice in Wonderland
legal skullduggery, over when an NHS contract
is not an NHS contract. Particularly Section 6
subsections 5 & 19. Also Part 3 Section 1. The
upshot is that these bits of skullduggery would
effectively exempt a range of contracts particularly the 2016 privatisation of
Commissioning Support Units - from EU
competition law, allowing a privatised
monopoly CSU to be set up across the whole of
the English NHS.

Contracts may last up to a maximum of 10 yrs,

but can be removed at any time rather than
being allowed to bumble ever onwards as a
result of vested interest. Anyone aggrieved by
such a contract or its delivery can refer their
objection directly to the SoS rather than the
CCG having to handle the cost burden of legal
challenge. This is the undoing of Section 75.

This is not the undoing of Section 75. It gives

the SoS the power to overrule the decision of
an NHS commissioner to make an NHS
provider the preferred provider. It undoes the
undoing of Section 75.

Even where both parties ie. a CCG and a

private contractor, agree that a service can be
delivered outside the aegis of an NHS contract,
the SoS can overturn such a decision. Once
again one in the eye for Section 75.

In fact the opposite is true that this is one in the

eye for Section 75. The EB gives the SoS the
power to undo the undoing of Section 75. See
comments elsewhere for explanation.

The management of the private CAP will also

return to the SoS, rather than sitting with each
Foundation or NHS Trust to do as they wish up
to the 49% plimsoll line. The litmus test being
that no private provision shall have an adverse
impact on the hospital, based upon a set of
principles which will be drawn up for the
purpose.

This removes the 49% cap on the amount of

income a hospitalTrust or foundation Trust can
earn from private patients. It therefore allows
for the possibility of earning far more income
from private patients.

Impact assessments will be a pre-requisite and

these will be submitted to Monitor, whose role
will no longer be one of promoting and forcing
through the privatisation agenda but of
implementing the NHS as preferred provider
reversion.

The Efford Bill Part 3 Section 10 gives

Monitors competition-enforcing role to the
Office of Fair Trading. It doesnt abolish the
role, just transfers it.This is what the Efford
Bill would repeal from HSCA 2012 Part 3, in
terms of Monitors role
62 (2)In carrying out its main duty, Monitor
must have regard to the likely future demand
for health care services.
62 (3)Monitor must exercise its functions with
a view to preventing anti-competitive
behaviour in the provision of health care
services for the purposes of the NHS which is
against the interests of people who use such
services.
62 (10)Monitor must not exercise its functions
for the purpose of causing a variation in the
proportion of health care services provided for
the purposes of the NHS that is provided by
persons of a particular description if that
description is by reference to
(a)whether the persons in question are in the
public or (as the case may be) private sector, or
(b)some other aspect of their status.
67 (3)Monitor must ignore the functions it has
under sections 111 and 113 when exercising
(a)its functions under Chapter 2 (competition);
(b)its functions under Chapter 4 (pricing).
Sections 72-80 are the Chapter on
Competition.http://www.legislation.gov.uk/
ukpga/2012/7/part/3/chapter/2/enacted
They are mostly about relations between
MOnitor and OFT, (72- 74, 80)
Procurement, patient choice and competition
(Section 75)
Implications of Section 75 (76-78)
Mergers involving NHS Foundation Trusts (79)
The EB gives the SoS the power to overrule
NHS commissioning decisions to buy NHS
services from an NHS preferred provider

The ever-knotty problems of commissioning,

tendering and procurement are addressed in an
amendment which states that NHS
commissioners no longer legally obliged to
seek competitive tendering for an NHS
contract. Once again a bop on the head for
Section 75.

As already explained in my comments, this

commitment can be overridden by the Sec of
State on appeal from a private health care co.
So not any kind of bop on Section 75s head.
Just spin.

Part 3 knocks profligate competition out of

procurement activities in favour of cooperation. It is to be hoped that this would also
save some of the millions of the fund wastage
FOIs having revealed that NHS hospitals are
now spending in excess of 20 million per year
on navigating the Governments competition
law requirements for NHS reconfigurations and
mergers & acquisitions. Additionally,
Monitors Annual Plan, shows that the
organisation spent 4.9m on monitoring and
enforcing competition in 2013/14 and they
estimate the cost of their competition work in
2014/15 will be 6.3m.

But it doesnt, because by keeping the NHS

subject to EU Competition law, through
categorising it as a Service of General
Economic Interest, instead of a noncompetitive non marketised public service, it
means that private companies still have a legal
right to bid for NHS contracts. And by giving
private cos the right to appeal to the Sec of
State against NHS commissioning decisions to
use NHS providers as preferred provider, the
EB effectively makes sure that its undoing of
Section 75 is undone. Spin.

Mergers require the consent of the SoS and an

introduction of regulations requiring NHS rust
and Foundation Trust mergers are to be in the
interests of patients...again a nod to the Poole
and Bournemouth debacle and possibly also
to the Lewisham/Greenwich merger in place of
the narrowly avoided Hunt car crash closure.

Given that NHS privatisatoin can proceed

apace along the lines the New Labour
government started, more and more hospitals
will go bust, as they are already. So the
inclusion of measures for hospital trust mergers
in the Efford Bill is surely a sign of things to
come. And not in a good way. In the interests
of patients can mean anything.

Finally the NHS is firmly protected from the

looming jaws of TTIP, which shall not cause
any legally enforceable procurement or
competition obligation to be imposed on any
NHS body offering provision of health services
in ANY part of the health service....

This is in no way the case. By categorising the

NHS as a Service of General Economic
Interest, the Efford Bill subjects the NHS to
TTIP. If the EB really wanted to take the NHS
out of EU competition law and restore it to
public ownership in order to exempt it from
TTIP, it could have categorised the NHS as a
non-economic non-marketised public service
with no commercial involvement.
Despite this, EB (section 14(1) assumes that
its possible for the NHS to be exempted from
TTIP procurement and competition obligations.
But TTIP exemptions only apply to fully
publicly-owned public sector organisations,
and the NHS is already part-privatised.
Trade and competition law expert John Hilary,
explained this in the British Medical Journal:
The European Commission has confirmed that
health services are on the table, and a leaked
copy of the EUs liberalisation offer has
revealed its full ambition. Not only hospital
services but medical (including midwifery and
physiotherapy) and dental services are to be
opened up to competition under TTIP.
Individual EU member states may enter
reservations to protect specific sectors, but the
only one entered by the UK government is for
ambulance services.
The market liberalisation introduced by the
2012 Health and Social Care Act ensures it will
be effectively impossible to take the NHS back
into public hands if the EU-US deal goes
through. Both the UK government and the
European Commission have confirmed that
TTIPs provisions to protect investors would
grant US corporations the power to sue any
future administration over such a move. http://
www.bmj.com/content/349/bmj.g6552
Only categorising the NHS as a noneconomic non-marketised public service with
no commercial involvement AND repealing
section 75 of 2012 HSCA, would exempt NHS
from TTIP.

Sections 62(2), 62(3), 62(10), 67(3)(a), and 72

to 80 of the Health and Social Care Act 2012
are repealed along with exemptions from the
Competition Act 1998 which no longer apply
to the SoS, an NHS body, or a person
commissioning services. Likewise the
Enterprise Act 2002 shall not apply to any
proposed merger or property acquisition also
requiring SoS permission, using the litmus of
patient interest.

Parts 1-13 apply to England, while 14 & 15

apply across the UK in E,S,W &NI

If the Efford Bill were to succeed in becoming

legislation, it will be known as the National
Health Services ( Amended Duties and Powers)
Act 2014

It may not be everything, but it is more than

just a little something. For a PMB it sure packs
a punch in the Lansley and Hunt guts!

Its not limited at all, its radical, and not in a

good way. It simultaneously removes and
restores the subjection of the NHS to EU
Competition law, and jiggles with Alice in
Wonderland definitions of when an NHS
contract is not an NHS contract, in order to
make it possible to apply/remove EU
competition law to the NHS according to an
agenda that would see the NHS firmly within
the remit of TTIP, and under a monopoly
private Commissioning Support Unit that
would apply across the whole of the English
NHS.

The Bill is sponsored by MPs - Frank Dobson,

Karen Buck, Andy Slaughter, Grahame Morris,
Diana Johnson, Alison Seabeck, Shabana
Mahmood, Steve Rotherham, John Healey,
Dennis Skinner and Angela Smith.

A former Health Secretary, John Healey, now

leads the TTIP promotion group in Parliament
sponsored by British-American Business aka
the US/UK Chambers of Commerce.

Schedule
The 24 hour TULO and PEOPLES VOTE
Vigil will begin on Thursday evening 20th at
7.00 pm in Old Palace Yard

Due to the Met reaction to Occupy we will not

be allowed to sleep out, so at a late hour the
vigil will depart to spare rooms, floors and
sofas of nearby campaign members, resuming
early on Friday morning when the Save
Lewisham Hospital Campaign will join up.
Campaigners will attend the debate.

The Save Lewisham Hospital Campaign then

has a 2-4.00 review meeting in the HoC
following the debate.

Jos Bell