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Dr D Nicholl FRCP...
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Joined: 07/02/2012

This is due to be implemented imminently and will lead to privatisation of the NHS, there is a last ditch attempt to stop this. Fellows can lend their name (in a personal capacity) to a letter (precise wording is on the Survey Monkey website) which will be sent to a national newspaper (likely the Daily Telegraph on Wed 27/2/13)...given that this was precisely what we were worried about in 2012 and HMG decided to ignore professional opinion, http://www.bbc.co.uk/news/health-17398446 I hope people will sign via 

 

 

 

Some background to the letter below which was forwarded to me via KeepOurNHSPublic:

 

 

 

Privatising the NHS through the back door
Last week the Government published new regulations (SI257)
under Section 75 of the Health & Social Care Act 20121
Assurances were given by ministers during the passage of the
Bill through Parliament that it did not mean the privatisation of the
NHS, that local people would have the final say in who provided their
NHS.
The regulations just published break these promises by creating
requirements for virtually all commissioning done by the National
Commissioning Board (NCB) and Clinical Commissioning Groups (CCGs) to
be carried out through competitive markets, which will have the effect
of forcing through privatisation regardless of the will of local
people. They contain legal powers for Monitor to enforce the
privatisation spontaneously or at the request of private companies
which lost bids.
They would also make it impossible to fulfil some of the key
thrust of the Francis report recommendations.
What did ministers say then?
Andrew Lansley MP: “There is absolutely nothing in the Bill
that promotes or permits the transfer of NHS activities to the private
sector.” ( 13/3/12, Hansard2)
Andrew Lansley MP, 12.02.12, letter to Clinical Commissioning
Groups: “I know many of you have read that you will be forced to
fragment services, or put them out to tender. This is absolutely not
the case. It is a fundamental principle of the Bill that you as
commissioners, not the Secretary of State and not regulators – should
decide when and how competition should be used to serve your patients
interests..”
Simon Burns MP: “...it will be for commissioners to decide
which services to tender...to avoid any doubt—it is not the
Government’s intention that under clause 67 [now 75] that regulations
would impose compulsory competitive tendering requirements on
commissioners, or for Monitor to have powers to impose such
requirements.” (12/7/11,
Lord Howe: “Clinicians will be free to commission services in
the way they consider best. We intend to make it clear that
commissioners will have a full range of options and that they will be
under no legal obligation to create new markets....” (6/3/12, Hansard4)
What do the regulations say?
According to David Lock QC, the regulations as a whole have the effect
of closing down the current option of an in-house commissioning
process, even if local people wish it. This option has been taken in a
number of cases, including since the passage of the Act5. Ministers
have confirmed that at the present time such arrangements are legal and
would not give rise to challenge under EU Procurement law6.
1 The National Health Service (Procurement, Patient Choice &
Competition) Regulations 2013
2
http://www.publications.parliament.uk/pa/cm201212/cmhansrd/cm120313/debtext/120313-0002.htm
3
http://www.publications.parliament.uk/pa/cm201011/cmpublic/health/110712/pm/110712s01.htm
4
http://www.publications.parliament.uk/pa/ld201212/ldhansrd/text/120306-0001.htm
5
www.localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=12092%3Anhs-gloucestershire-in-
outsourcing-u-turn&catid=174&Itemid=99
6www.whatdotheyknow.com/request/113046/response/286241/attach/html/10/701443%20Geoffrey%20Clifton%20Brown.p
df.html
1
Hansard, c4423)
http://www.legislation.gov.uk/uksi/2013/257/contents/made
These regulations sweep all existing arrangements between NHS bodies,
and just about all commissioning done by the CCGs, into a market
framework7. - and thus into the remit of EU competition law,. Once this
is triggered, private providers gain rights which make halting their
encroachment financially – and thus politically – virtually impossible.
Regulation 5 - awarding a contract without competition can,
effectively, only8 be done in an ‘emergency’, a much narrower
restriction than suggested in the parliamentary debate.
Regulation 10 makes whatever Monitor judges to be an “unnecessary”
restriction of competition, illegal. It thus effectively closes down
the current option of one state body (i.e. the NHS Commissioning Board
or a Clinical Commissioning Group) merely making a new arrangement (not
contract) with another – i.e. an NHS Trust.
Regulation 12 forces commissioners to use the market to meet waiting
time considerations, in contravention of assurances offered to CCGs
during the passage of the Act when they were told they would have
discretion and could also consider quality issues. This regulation also
ignores the summary of the DH’s own consultation which highlighted that
waiting time considerations should not be used to override quality
considerations.
Part 3 Regulations 13-17, covering Monitor’s powers
The sweeping (and time unlimited) statutory powers given to Monitor
enable it to decide when the CCG has breached regulations (Regulation
14), to end any arrangements the CCG has come to and to impose their
own (Regulation 15) – including the criteria governing selection of
suppliers, and more fundamentally, the decision about whether to use
competitive methods like tendering and AQP at all. Under these
regulations Monitor will have sweeping statutory power to enforce (as
yet unseen) guidance, whereas the current guidance is not legally
binding.
(For further discussion please see
http://opendemocracy.net/ournhs/nicola-cutcher-lucy-reynolds/nhs-as-we-
know-it-needs-prayer. For a more detailed analysis of the regulations,
please email campaignmanager@keepournhspublic.com)
What can MPs do
Support moves to ensure these regulations are subject to both
committee scrutiny and full debate and vote on the floor of both
houses, and vote against them. This would be unusual, but possible.
These regulations should not proceed – take time to find a
better solution to the challenges posed by Francis and the wishes of
your constituents.
Remember that these regulations go much further towards
privatising the NHS than ministers implied when the legislation was
going through Parliament. Respond to the wishes of your constituents.9
    Use your parliamentary skills and experience to the full to save
this institution from privatisation.
This is a last chance to save the NHS we celebrated in the
Olympics ceremony. The culture of care has already been damaged by
managing the NHS as though it were a market, as the case of Mid
Staffordshire Foundation Trust demonstrates, but it can be repaired and
be the safety net we have relied on for 65 years.

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Dr DF Levine MD FRCP
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Joined: 29/04/2011
Section 75
Thank you Dr Nicholl for keeping us updated on this matter. You're right about the need to protest as signatories but I fear that this juggernaut may be impossible to stop given the vested interests of so many politicians. Today's rapid response on NHS Culture from Graham Winyard in the BMJ is a crystal-clear explanation of the problem in the context of the civil service's 'leadership' of the NHS.