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There are a whole stack of laws which combine to govern how we practice. Most of them are directly related to healthcare or the issues of governance in our clinical processes. It seems reasonable to expect us to know about the Mental Capacity Act 2005 or the Health and Social Care Act 2012. As employers, it’s even reasonable to expect us to know about The Health and Safety at Work etc. Act 1974. Now there is a new guy in town. He’s big, he’s serious, he’s seen as a bully by some and he’s definitely not what we would expect.
The new bully at school is The Competition Act 1998. To be more exact, it’s the ‘competition’ element of the Health and Social Care Act. Enshrined within this is the tenet – “There is emerging evidence of the benefits of competition in the NHS. Where there is competition and choice of hospital provider it leads to better outcomes, satisfaction for patients and better hospital management."
The Act even has a Regulator – yes, another regulator – called Monitor. The Act provides for Monitor to become a sector specific regulator for healthcare. Monitor’s role in respect of competition is to tackle ‘specific abuses and unjustifiable restrictions’ but says, in the narrative, that it is not to promote competition as an end in itself or to promote the interest of private providers. However, the text goes on to say that Monitor could take action against a provider which is restricting patient choice. Sir David Nicholson, departing head of NHS England, warned MPs last week that this will have a detrimental effect on care. He said "We are bogged down in a morass of competition law. We have competition lawyers all over the place telling us what to do, causing enormous difficulty."
Warning Has Come Too Late
Unfortunately, this warning has come too late. As an example, two Blackpool CCGs are stunned at being referred to Monitor's competition arm for failing to send enough patients to a private hospital run by Spire. Spire says the CCGs have been telling GPs to use the NHS Blackpool hospital instead. In response, Dr Amanda Doyle, head of one CCG, "strongly refutes" and "deeply resents" the charge. She says Spire has fewer referrals for good reasons, these are that the NHS alternative is a faster, cheaper pathway. For example, GPs can treat people in the community, ordering CT scans, avoiding costly hospital visits. In addition, GPs have been trained to give joint injections and make referrals to physiotherapy without hospital appointments, so the private hospital lost orthopaedic work. Doyle says "Spire went direct to Monitor, without talking to us," There is a huge cost to the CCG in answering the accusations as they had to hire an administrator to collate thousands of documents, tracking every referral from every GP for years. All this to justify a service which is cheaper and of more service to the patient.
Under the pathways promoted by the Health and Social Care Act, the NHS has tendered out three-quarters of new contracts to competition according to Pulse magazine. As organisations and businesses become more competitive, they are more likely to call in Monitor if they feel hard-done-by. In another case, Monitor, the Office of Fair Trading and the Competition Commission stopped two hospitals from merging in Bournemouth and Poole. The merger would have saved £14m a year and would also have been of great benefits to patients, as a new single A&E could have afforded to offer a 24-hour, seven-day-a-week consultant led service. Poole's CEO told a meeting it cost them more than £6m in lawyers and paperwork just to fight the case. Poole and Bournemouth are 10 miles apart and have no other competitor in sight, so why have they been banned from both good business practice and good patient care? The only obvious answer is that the new bully is just flexing it’s muscles and spreading a bit of fear in the playground.
Costs of Competition
The Prime Minister is ordering the NHS to use the private sector, but as can be seen in Blackpool it’s no cheaper. These healthcare organisations are businesses, they have shareholders and high-priced directors to pay. For example, it’s reported that St Andrew's, a private mental health service, paid its CEO £650,000 and Nuffield Health pays its CEO £840,000. The side-effect of this is that the NHS is now having to increase salaries to be competitive with the private sector. So the very laws that were designed to make care more cost-effective are actually driving up costs. There are dozens of cases being referred to Monitor, the OFT and the Competition Commission. Each of these conflicts is costing millions of pounds in administration and legal fees. This is money that CCGs and hospital trusts really need for patient care.
To repeat, there are laws that govern healthcare. Clinical Governance dictates that care is safe, effective and open. I feel that we should add another pillar to this trilogy, which is that healthcare should also be cost-effective. To encourage this, we should applaud innovation in managing care, we should reward examples of providing efficient care without compromising quality. If possible, we should allow CCGs to commission care where it is convenient for the patient and at a cost that means more patients get seen.
Monitor, the regulator, is quoted as saying that it has an overarching duty to protect and promote the interests of people who use healthcare services. I’m not sure the people of Blackpool or Poole would agree with that. A ‘monitor’, according to the dictionary, is also a device for displaying information. It would be interesting if the regulator itself became involved in introducing commissioners to contractors and vice versa or something more useful than holding back good business practice.