Pressure Group 38degrees commissioned legal advice on the Liberal-Democrat – CONservative government’s Destroy the NHS Bill.
The legal advice confirms that the Bill will remove the duty on the Health Secretary to be responsible for providing a health service and that the NHS will be subject to competition law which, in turn, will promote private interests.
The proposed cut in legal aid to patients will cost the NHS very dearly.
CONservative Prime Minister David Cameron claims that “the whole health profession is on board for what is now being done”. It’s a deliberately misleading statement since much of the medical profession actively oppose his plans to destroy the NHS.
- Conservative election poster 2010
A few recent news articles about the UK’s Conservative and Liberal-Democrat coalition government – the ConDem’s – brutal attack on the National Health Service.
Legal opinion funded by campaigners suggests ‘hands-off’ clause will remove the health secretary’s accountability
The health secretary will be able to “wash his hands” of the NHS after forthcoming legislation which will take away his duty to provide a national health service, according to legal advice funded by campaigners.
The legal opinion, commissioned and paid for by members of the 38 Degrees website, justifies the widespread public concern about the government’s health reforms, in spite of Andrew Lansley‘s assurances that he has listened and responded to criticisms, they say.
The independent legal team says the health and social reform bill removes the health secretary’s responsibility for NHS provision through a “hands-off” clause designed to give autonomy to commissioning groups.
The Health Secretary’s promise to prevent price competition in the NHS as part of the Government’s health reforms is meaningless and could be challenged in the courts, senior lawyers have warned.
Under the reformed Health and Social Care Bill, being put through Parliament by Andrew Lansley, regulators will no longer have a duty to promote price competition between public and private health providers.
But yesterday lawyers suggested that the concession would have no practical effect as EU competition and procurement law will force trusts to consider the price and value of services when commissioning or face challenges in the courts.
This could lead to significant fines or the cancelling of contracts – with a knock-on effect on patient care – if challenged by companies that lose out on contracts. It will also, the advice suggests, cost the new GP consortiums, set up to replace primary care trusts, millions of pounds in lawyers’ fees to ensure that their commissioning decisions are legally sustainable.
“The Government has simply failed to grapple with the frontline issues in procurement [and] has wholly underestimated the increasing rather than diminishing complexity in the area and has had no or perhaps little regard to the administrative and financial burdens arising from the regime,” the legal opinion concludes.
“The fact, however, that the Government has amended the Bill to remove… the duty to promote competition as an end in itself is arguably futile since the very fact that domestic and European competition law applies to the NHS arguably itself results in the promotion of competition since that is its aim.”
The opinion was commissioned by the campaign group 38 Degrees from lawyers at the Doughty Street and Monckton Chambers. It will be passed on to MPs debating the Bill, which is currently going through the House of Commons.
Its conclusions are likely to concern senior Liberal Democrats ahead of the party’s conference next month – as the removal of the competition clause was trumpeted by the party as a key concession won from the Conservatives.
Any suggestion that it is meaningless will anger activists and lead to calls for further reform to the legislation.
The report also concludes that if the Bill becomes law the duty of the Government to provide a “national” health service will have been diluted and it will reduce what is currently the “unfettered power” of the Health Secretary to impose his or her will on the NHS.
The legal advice adds that in the “clear intention of the Bill to give consortia autonomy from the Secretary of State, there is a real risk of an increase in the ‘postcode lottery’ nature of the delivery of some services, depending on the decisions made by consortia in relation to these subsections. And the intention of the Bill is that there will be very little that the Secretary of State can do about this in practice.”
The Government’s plans to slash the soaring legal aid bill threaten to cost the NHS millions and exclude many victims of medical negligence from justice, the National Health Service’s own lawyers have warned.
The man in charge of managing an NHS negligence bill that last year topped £1bn for the first time, told the Justice Secretary, Kenneth Clarke, that his attempts to stop the state bankrolling medical cases would be counterproductive – and would “undoubtedly cause NHS legal costs to escalate massively”.
Steve Walker, chief executive of the NHS Litigation Authority (NHSLA), cautioned that the move would push alleged victims into the arms of lawyers offering “no win, no fee” deals, which would leave hospitals with hugely inflated bills every time they lost a case. The deals, also known as conditional fee agreements (CFAs), have been on the increase in recent years, with payments to claimant lawyers amounting to 76 per cent of the £257m outlay on legal costs for clinical negligence claims closed last year.
Mr Walker also suggested the move would lead to a conflict of interest between lawyers and clients seeking a fair settlement – amounting to “a danger that some very seriously injured and vulnerable claimants may be prejudiced by the desire of their lawyers to recover their costs”. Claimants in some of the most serious cases, including brain-damaged children and adults, could struggle to strike suitable CFAs – and face prohibitive charges including hefty “after the event” insurance premiums.
But the warnings, delivered in an official response to the Ministry of Justice, appear to have made little difference to the final Bill, which will be debated in Parliament when MPs return next month.
Pressure groups and the legal profession last night said the NHSLA’s comments revealed officials’ deep concerns over the dangers posed by Mr Clarke’s proposals, and they condemned his failure to amend the Bill to take account of the warnings.
Peter Walsh, of the charity Action against Medical Accidents, said: “All that will happen here is that Ken Clarke will be able to say he has saved a few millions on the legal aid budget, but elsewhere in Whitehall the NHS will be paying tens of millions more. At the same time, dozens of people will be excluded from justice and the NHS will not be learning from its mistakes.”
David Cameron has defended controversial proposals for a radical shake-up of the NHS, defiantly stating “the whole health profession is on board for what is now being done”.
The Prime Minister yesterday issued a passionate broadside in response to St Ives Liberal Democrat MP and Health Select Committee member Andrew George, who this week called on opponents to dig their heels in and derail service changes over concerns the NHS would become a profit-making machine at the expense of patient care.
27/11/13 Having received a takedown notice from the Independent newspaper for a different posting, I have reviewed this article which links to an article at the Independent’s website in order to attempt to ensure conformance with copyright laws.
I consider this posting to comply with copyright laws since
a. Only a small portion of the original article has been quoted satisfying the fair use criteria, and / or
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