Recently the Kings Fund questioned Andy Burnham’s ambition to exclude the NHS from the national procurement and competition rules.

The question of how the rules may apply to the NHS has been an issue for all the years I have been involved with the NHS. This is one of Labour’s key NHS Election pledges, designed to protect services from what they regard as unacceptable privatisation.

The Kings Fund concluded that it is not possible to exempt the NHS from EU procurement and competition law. It does, however, suggest that the same aim could be achieved by making broader changes to policy, including bringing foundation trusts clearly back under the direct control of government.  On procurement policy, it says that while Labour ministers could repeal the coalition’s controversial Section 75 regulation, which came into force in 2013 as part of the Health and Social Care Act, commissioners of NHS services would still need to comply with EU procurement rules.

The King’s Fund is very clear in its report “It is extremely unlikely that the government would be able to negotiate an exemption for the NHS from those EU rules. No other member states have secured special treatment in this area. It is almost impossible to overstate the political, legal and practical obstacles it would need to overcome,”

The only way that the Labour Party could achieve their objectives is by restructuring the NHS so it had the same control as the Scottish and Welsh governments have over their NHS, so they are not confined by the EU law.  Restructuring the NHS has already been ruled out by the Labour party so they are stuck.  Or are they?  The NHS has always been a political pawn but this general election the political parties are excelling themselves on healthcare headline generation.

It would appear the main driver for the Labour Party pushing for this change is to stop the privatisation of NHS Services.  But as Dr Howard Freeman says in HSJ (March 18th, 2015) “People are more comfortable with NHS care being delivered by the independent sector than politicians would have you believe. Independent sector providers are being commissioned to deliver a range of services across the care pathways, from carrying out diagnostics and acute procedures through to improving community care and sexual health provision.”

GPs are independent contractors with the same drivers as the private sector but the general public does not seem object to this.  It might be a question of scale, of a lack of knowledge, or comfort with what you know.  However even this model is feeling the strain and is starting to move to a salaried GP model employed by larger organisations, though many are the more acceptable face of private healthcare – not for profits and Community Interest Companies for example.

It is clear the current NHS model is not sustainable so radical changes are needed but what are they?  Only one NHS hospital, Hinchingbrooke Health Care NHS Trust, was franchised to a private sector operator, Circle, before the 2010 election, but in January 2015 Circle announced that it intended to hand the management of the Hospital back to the NHS.  It seems that further management franchises by the private sector in the short term are unlikely due to the financial pressures of the NHS.  Neither the Private nor the Public sector seem to be able to find the magic formula of even breaking even.  The answer is unlikely to be based in particular systems, or structures or forms of ownership.  Instead it will come from a root and branch re-appraisal of what can and can’t be provided to keep the population healthy, who is best placed to do that, and how it can be made affordable to a population where the ratio between productive and dependent population is shrinking.

Rebecca Trewinnard

Rebecca has recently joined Concerto following 8 years at CGI where she was Health Industry Director. She has expertise across strategy and operational healthcare. Her key achievement at CGI was to lead as the Health SME on a number of successful bids and the development of a whole health economy interoperability solution.  Prior to that she worked within the NHS as IM&T/Estates Director, Learning Disabilities Director and deputy Chief Executive.  In addition she has worked on the National Cervical Cytology Screening programme, a number of Serious Untowards Incidents (SUIs) that led to a number of legislation changes and the re-provision of a large learning disabilities service.