Health Minister’s Health and Care Bill anti-privatisation amendment is a dead cat

Please click here to tell your MP to vote against the Health and Care Bill when it comes back to the House of Commons, after the Public Bill Committee has finished amending it.

On 14th September Health Minister Edward Argar threw a dead cat into the sixth sitting of the Public Bill Committee, where MPs are currently debating and voting on proposed amendments to the contentious Health and Care Bill.

The Bill, which has been met by widespread public opposition, aims to put the past years’ NHS cuts and privatisation on an irreversible statutory basis – fragmenting the NHS into 42 statutory Integrated Care Systems, each run by an Integrated Care Board.

The Health Minister’s promise of a new, more “robust” Government amendment at Report stage, to prevent “individuals with significant interests in private healthcare from sitting on” statutory Integrated Care Boards, is no guarantee that Integrated Care Systems won’t further entrench the position of private health companies in the NHS.

But Labour’s lead on the Public Bill Committee, Justin Madders MP, agreed to drop the existing amendment to exclude independent providers from the Integrated Care Boards, in favour of Argar’s promised amendment. And Labour’s Alex Norris MP also agreed to drop the related amendment to prohibit representatives of GP practices with active Alternative Provider Medical Services contracts from becoming Integrated Care Board members.

(Introduced by the New Labour government in 2004, Alternative Provider Medical Services GP practices were offered extra funding, encouraged to form chains and allowed to make profits for shareholders. They were Virgin Care’s entry point into the NHS, and Alternative Provider Medical Services contracts seem to be the main mechanism for corporate takeover of GP Practices. With this amendment off the table, there seems to be nothing to stop the USA health insurance company Centene from membership of statutory Integrated Care Boards; through its UK subsidiary Operose Health, Centene Corporation is the largest GP provider in the country.)

Like MPs on the Public Bill Committee, some campaigners seem to have taken Argar’s empty promise as a significant government concession

Is it? For a start, membership of statutory Integrated Care Boards is not the only way for private companies to have significant decision-making power over the procurement and award of big, 10 year Integrated Care Provider contracts that will cover all or most aspects of NHS care in the statutory Integrated Care System regions.

Specifically, Argar’s dead cat seems to be a distraction from the implications of NHS England’s August 2021 guidance on Provider Collaboratives, which would allow this to happen.

Provider Collaboratives like West Yorkshire Association of Acute Trusts already exist. NHS England’s guidance seems to turn them into a little-noticed route to further NHS privatisation and the entrenchment of private companies within NHS decision making.

Alarmingly, West Yorkshire and Harrogate Integrated Care System Director recently told Calderdale Councillors’ Scrutiny meeting on the Health and Care Bill that he is

“not really aware of what the Bill says about Foundation Trusts”.

It seems that this blind spot is shared by MPs on the Public Bill Committee that’s debating amendments to the Health and Care Bill.

How the overlooked Statutory Provider Collaboratives are an open door to private company decision making in Integrated Care Systems

NHS England guidance would allow private companies to be members of Provider Collaboratives, and it also would give Provider Collaboratives a decision-making role in the statutory Integrated Care Systems – including decisions on finance.

The guidance says,

“The Health and Care Bill, if enacted, will enable I[ntegrated] C[are] B[oard]s to delegate functions to providers including, for example, devolving budgets to provider collaboratives.” (p14)

Second, NHSE’s guidance speciously claims that,

“Independent sector providers …participation in provider collaboratives may be important to delivering benefits, depending on local priorities and provision. The extent to which independent sector providers can participate in decisions of a provider collaborative may depend on the specific collaborative arrangements and responsibilities; this will need to be considered locally” (p19)

By these means, the Health and Care Bill seems to make it possible for Provider Collaboratives, with private company participation and decision making, to hold huge Integrated Care Provider contracts (previously called ACO contracts).

These contracts would be funded through a fixed, capitated payment arrangement that makes the NHS providers bear the risk of “overspending” – and incentivises them not to, by allowing them to keep any unspent money. This payment method is designed to “manage demand” for the NHS. In other words, these contracts would deny access to NHS care.

A vital bit of backstory

#Justice4NHS challenged this payment arrangement in the courts in 2018 and 2019. We brought this legal challenge after a GP asked us to find a way to stop the imposition of the cuts-and-privatisation Sustainabiity and Transformation Plans, before they destroyed the NHS.

In refusing our leave to appeal, the Supreme Court failed to protect the NHS as a comprehensive service providing the full range of treatments to everyone who has a clinical need for them. So now Parliament has the task.

The challenge to these huge contracts wasn’t limited to the courts. The NHS England quango endured a long row with NHS campaigners – including the late national treasure and cosmologist Stephen Hawking – about the fact that nothing in the contracts published by NHS England would stop private companies holding them.

The House of Commons Health and Social Care Select Committee picked up on this in its investigation of accountable care organisations. As a result, in 2019 NHSE was forced to concede that that only NHS statutory bodies would hold the huge 10 year Integrated Care Provider contracts that potentially would cover all NHS services across an entire Integrated Care System:

“The House of Commons Health and Social Care Committee (HSCC) has recommended that “the law should rule out the option of non-statutory providers holding an Integrated Care Provider Contract”. In recognition of this recommendation, and our expectation that ICP Contracts will be held by statutory bodies, we have published a version of the ICP Contract suitable for award to statutory bodies only.”

The Health and Care Bill’s sneaky way around NHS England’s 2019 exclusion of non-statutory providers from Integrated Care Provider contracts

According to the House of Commons Health Select Committee, the attempt to impose Integated care involved “workarounds” (“fiddles”, said Rosie Cooper MP) to get around existing Health and Social Care legisation. This habit seems to die hard, even though the new Health and Care Bill’s meant to put an end to these “fiddles”.

As we’ve seen, NHS England’s August 2021 Provider Collaboratives Guidance for the new Health and Care Bill enables non-statutory providers (private companies or third sector organisations) to be INCLUDED in provider collaboratives.

Doesn’t this look like a “fiddle” to NHS England’s 2019 Long Term Plan (Chapter 7) commitment to exclude non-statutory providers from the contracts?

Is Argar’s dead cat amendment meant to distract attention from such legislative chicanory?

Argar’s promised Government amendment to prevent private companies from influencing statutory Integrated Care Boards seems a million miles away from “robust assurance” that only NHS organisations will decide on what statutory Integrated Care Boards do with NHS services.

One of the 3 Provider Collaborative types the NHSE guidance permits is the Provider Collaborative as the Lead Provider: 

“Lead provider model: A single NHS trust or foundation trust takes contractual responsibility for an agreed set of services, on behalf of the provider collaborative, and then subcontracts to other providers as required. Alongside the contract between the commissioner and NHS lead provider, the NHS lead provider enters into a partnership agreement with other collaborative members who contribute to the shared delivery of services.”

By delegating Integrated Care Board functions and budgets to Provider Collaboratives (NHSE Guidance p14) , and making it possible for private companies to have a decision making role in them (NHSE Guidance p19), the Health and Care Bill would let private companies significantly determine procurement decisions about Integrated Care Provider contracts (their scope and scale), and who the Provider Collaborative as Lead Provider subcontracts to. This looks like effectively giving private company members of Provider Collaboratives the power to award Integrated Care Provider subcontracts to themselves.

This effectively creates Provider Collaboratives as a very large pool of public money to be siphoned out of the NHS.

We would like the MPs’ Public Bill Committee to agree an amendment to make sure that private companies cannot be members of Provider Collaboratives.

The Health and Care Bill will not save the NHS from big business – rather, it props the door wide open for it

The Provider Collaborative as Lead Provider can subcontract to all and sundry including independent and voluntary sector companies, and community and primary care providers.

(“Provider collaboratives…will need to consider how to work best with primary care. Collaboratives also offer an opportunity for trusts to consider how they can better support primary care, including working with P[rimary] C[are] N[etwork]s” (p20) )

Will this mean more hospital trust Wholly Owned Subsidiary GP companies like Symphony Healthcare in Somerset Integrated Care System?  (A direct development of both the Somerset Primary and Acute Care System vanguard AND the Richmond Group and Philanthropy Capitals social impact bond pilot in Somerset Sustainability and Transformation Partnership – the forerunner to the Integrated Care System).

Provider Collaboratives’ role in Integrated Care Systems’ Forward Planning

A further way for Provider Collaboratives, potentially with private company members, to hold sway over statutory Integrated Care System’s decisions, is through the Health and Care Bill’s mandate that Integrated Care System’s forward plans should be prepared by the Integrated Care Board and its partner NHS Trusts and NHS Foundation Trusts. (Clause 19 – General Functions – Forward planning and reports – 14Z50 Joint forward plans for integrated care board and its partners).

Forward Plans determine what NHS services the Integrated Care Board will fund and commission, what staff they will employ, what capital investments they will make and how they will manage the NHS estate, among other key matters.

Since the Bill also requires NHS Trusts and NHS Foundation Trusts to form Provider Collaboratves, which can include private companies, the forward planning process seems very murky in terms of private companies’ influence.

West Yorkshire and Harrogate Integrated Care System Director “not really aware of what the Bill says about Foundation Trusts”

NHS Trust and Foundation Trust Provider Collaboratives (potentially with private company membership) seem pretty central to the operation of Integrated Care Systems, so it’s worrying that the Director of West Yorkshire and Harrogate Integrated Care System Ian Holmes has admitted he isn’t really aware of what the Bill says about Foundation Trusts.

His admission was in a Calderdale scrutiny meeting, in response to Cllr Hutchinson’s question about how the statutory Integrated Care Board and Foundation Trusts will work, when Foundation Trusts don’t seem to fit into the Integrated Care System but retain considerable autonomy and may sit outside the Boards.

Calderdale and Huddersfield Foundation Trust was not present at the Scrutiny meeting to explain how the Health and Care Bill affects them. Why?

How many other Integrated Care System Directors are similarly oblivious about what the Bill says about Foundation Trusts – and the statutory Provider Collaboratives the Bill will force them into?

Please ask your Integrated Care System Director this question. And pass on this info to the public, patients, Councillors and NHS staff in your Integrated Care System area.

More reasons why Health Minister’s Government amendment promise is disingenuous

The Bill will permit private companies to be members of Integrated Care Partnerships – the Integrated Care Board subcommittees that have nebulous responsibilities for bringing together health and social care organisations in a local authority area, as well as other organisations there that can affect the population’s health such as housing, transport, employment, policing.

And the “integrated care” model that has been put in place throughout our NHS over the last years – without any statutory basis – is explicitly based on increased privatisation of whole sectors of NHS diagnostics and treatment. This was announced in the Government’s 2015 Comprehensive Spending Review that introduced the Sustainability and Transformation funding levers that have since wrenched the NHS into 42 fragmented (“integrated”) care systems.

It was reinforced in NHS England’s initial STP Planning Guidance in December 2015, which said that the independent sector should play a key role in helping individual “footprints” to meet the stated requirements for Sustainability and Transformation Plans and in ensuring the plans were effectively delivered.

It seems an open question if statutory Integrated Care Systems will have much more basis in the NHS than so-called NHS Test and Trace, which has been little more than a means of increasing corporate profits, while failing to have any real effect on the spread of Covid-19, according to a National Audit Office report.

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