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NHS legal review on Duty to Provide & Competition – published today

August 30th, 2011 by

Earlier in the summer, 3,652 38 Degrees members from across the UK donated to pay for a legal team to get to the bottom of Andrew Lansley’s plans for our NHS.

For the last two months our independent legal team has been hard at work examining the government’s NHS plans. Now their legal reviews are ready – and they make grim reading.

If you want to find out more you can read a summary of the legal advice, and download both documents on this page.

This blog will be updated over the next few hours with more details of the legal review and ways you can get involved.

Find the PDF here: Download File

Update 1 – You can read the full legal reviews using the Scribd viewers below:

Duty to Provide legal review – NHS health and social care bill

Read the PDF here: Download File

NHS legal review: Competition and Procurement.

Update 2 – Media coverage from the results of our NHS legal opinions

NHS bill ‘will let Andrew Lansley wash his hands of health service’
http://www.guardian.co.uk/society/2011/aug/29/nhs-bill-lansley-wash-hands

NHS Reforms: ‘Govt Must Answer Concerns’
http://news.sky.com/home/politics/article/16058928

MPs Brace For Email Onslaught As 38 Degrees Target Health And Social Care Bill
http://www.huffingtonpost.co.uk/2011/08/30/department-of-health_n_941444.html

Now lawyers move in to make a killing off Lansley’s NHS reforms
http://www.independent.co.uk/life-style/health-and-families/health-news/now-lawyers-move-in-to-make-a-killing-off-lansleys-nhs-reforms-2345854.html

NHS ‘ripe for plunder’ under Tory reforms
http://www.mirror.co.uk/news/politics/2011/08/30/nhs-ripe-for-plunder-under-tory-reforms-115875-23382057/

NHS reforms end govt. accountability
http://www.presstv.ir/detail/196543.html

Lansley will ‘wash his hands’ of NHS if Health Bill passed, lawyers warn
http://www.gponline.com/News/article/1087442/lansley-will-wash-hands-nhs-health-bill-passed-lawyers-warn/

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  • http://healthandcare.dh.gov.uk/ Department of Health

    From Department of Health:

    With regards to your press release on 30 August 2011 – the Department of Health have already responded in detail to 38 degrees, and have published a
    detailed document explaining the future role and functions of the Secretary of
    State:

    http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsLegislation/DH_129415

     

    The Secretary of State will continue to be responsible – as
    now – for promoting a comprehensive health service. The NHS will always be
    available to all, free at the point of use and based on need and not the
    ability to pay. To say otherwise is absolute nonsense.
    The Department has also made clear that modernising the NHS will both safeguard the future of
    our health service, and will deliver a world class health service that puts
    patients at the heart of everything it does. The independent NHS Future Forum
    confirmed there is widespread support for the principles of our plans.

    Competition is not, and will not be, used as an end in itself. The Bill does
    not change current UK
    or EU competition legislation or procurement legislation or the areas to which
    they apply.

  • http://blog.38degrees.org.uk/author/johnnychatterton/ Johnny Chatterton

    Hello,Thanks for this response. For several months, 38 Degrees members have been trying to clarify what the Department of Health’s intentions are for the NHS. It’s great to see you taking time to comment on this blog. However, your response raises a number of questions.1 –Your point:“With regards to your press release on 30 August 2011 – the Department of Health have already responded in detail to 38 degrees, and have published a detailed document explaining the future role and functions of the Secretary of State: http://www.dh.gov.uk/en/Public…”Response:Thank you for pointing out that you have already responded to the concerns raised by over 450,000 38 Degrees campaigners. Is the response to 38 Degrees you are referring to the answers to 18 questions posed by public interest lawyer Peter Roderick? Peter has written his own response which is published on this website: http://www.dutytoprovide.net. It’s worth noting that Peter described the document your mention as reassuring on means-testing, but he also stated that: “several of the answers and statements in the report, however, are misleading, disturbing and unclear.In particular, clarification is needed concerning the possible implications:  (a) of certain specialised services and facilities (for pregnant women, women who are breastfeeding, young children, and for the prevention of illness, care of persons suffering from illness and the after-care of persons who have suffered from illness):• potentially falling outside the health service and possibly thereby resulting in the reformulated statutory ban on charging in a new s.1(3) of the National Health Service Act 2006 Act becoming inapplicable (see pages 15 – 16, below); and• of some of these services (such as health visiting and immunisation  to prevent illness) being provided as public health functions of local authorities and/or the Secretary of State, and being subject to new and different charging provisions in Clause 46 (new s.186A) (see Questions 6 & 7, pages 27 – 32, below); and (b) of giving clinical commissioning groups the power to engage in a wide range of commercial activities (such as supplying goods, land dealing and providing instruction) and to charge commercial rates (Clause 23, s.14Z3) (see pages 16 – 18, below);  ”The independent legal opinions published today raise a number of important issues – and show that 38 Degrees members concerns were well placed. Your response to Peter Roderick does not to appear to address these issues. I understand this may be because your document was published on August 15th and our legal opinion was published today – 15 days later. Please feel free to reply to this blog explaining how these other concerns raised are addressed. 2 – Your point:“The Secretary of State will continue to be responsible – as now – for promoting a comprehensive health service. The NHS will always be available to all, free at the point of use and based on need and not the ability to pay. To say otherwise is absolute nonsense.The Department has also made clear that modernising the NHS will both safeguard the future of our health service, and will deliver a world class health service that puts patients at the heart of everything it does. The independent NHS Future Forum confirmed there is widespread support for the principles of our plans.”Response:A “duty to provide” is not the same as a “Duty to promote”. 38 Degrees members are worried that the Department of Health’s current plans would reduce or remove the “duty to provide” – which is why 38 Degrees members paid for lawyers to look into the issue.In paragraph one of the executive summary of the legal review of the duty to provide our lawyers state that the duty to provide will be “lost”. This paragraph is here:“It is clear that the drafters of the Health and Social Care Bill intend that the functions  of the Secretary of State in relation to the NHS in England are to be greatly curtailed. The  most striking example of this is the loss of the duty to provide services pursuant to  section 3 of the NHS Act 2006, which is currently placed on the Secretary of State. This  will be transferred to the commissioning consortia, and reformulated accordingly. In real terms this means that, effectively, the government will be less accountable in legal terms  for the services that the NHS provides.”3 – Your point:”Competition is not, and will not be, used as an end in itself. The Bill does not change current UK or EU competition legislation or procurement legislation or the areas to which they apply.”Response:The legal opinion doesn’t suggest that the legislation will change UK or EU competition legislation. Paragraph 58 of the legal opinion on Competition and Procurement states:“Lastly, as regards the final sentence, it stands to reason that the Bill cannot change EU competition law since the latter has supremacy over domestic law,  whatever the source of that domestic law. The sentence does not suggest that EU competition law does not apply and cannot offer any comfort in that regard.”Paragraph 6,7 and 8 of the executive summary legal opinion on Competition and Procurement which state:6 – As regards the applicability of domestic and European competition law to the NHS, it is likely that, even as matters stand, and in view in particular of recent non-statutory reforms which increase the involvement of the private and third sector in health services provision, competition law already applies to PCTs and NHS providers. 7 –  The reforms introduced by the Bill however will serve to reinforce that conclusion and introduce elements which make it even more likely that domestic and European competition law applies to the NHS. There is nothing in the Bill which has or can have the effect of preventing the application of competition law. Nor can the Act preserve the enforcement of competition law to the sectoral regulator, Monitor, since a breach of the prohibitions on anti-competitive conduct gives rises to actionable claims in the High Court by any person affected.8 –  The effect of the application of competition law in the NHS is difficult to predict but potentially brings under scrutiny any collaborative and collective arrangements and the exercise of dominant local purchasing or providing power. The fact however that the government has amended the Bill to remove from the scope of the duties of Monitor 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”Please do get in touch with your response to these points, either by posting below or contacting our office – http://38degrees.org.uk/pages/contact_us Note – I have been in touch with the Department of Health to today to confirm that this was a message from them. They confirmed it is a message from one of their press team.

  • http://twitter.com/philjvtaylor Phil Taylor

    On procurement the advice seems to be that NHS bodies will have to follow the
    same rules that ALL other public bodies do. Wow, big deal! Have you ever wondered
    why the NHS is so inefficient?
    There is a risk that NHS bodies will
    incur legal costs but this is slight – very few suppliers want to get a
    reputation for being litigious with repeat customers – doh! The legal advice
    ignores the more likely outcome that if the NHS uses fair (if a little clunky)
    procurement rules it will save rather more money than it risks in legal
    disputes.
    It seems that 38 Degrees and your otherworldy barristers do not have a commercial bone in your collective bodies. 

  • Anonymous

    WHAT A DISGRACE THE NHS AS WE KNOW IT IS NOW IN GRAVE PERIL OF BEING DECIMATED BY THIS UNCARING GOVERNMENT. WHAT WILL THEY DO WHEN UNEXPLAINED DEATHS OCCUR AND THEY TURN A BLIND TO THE REASON FOR THE STATE OF AFFAIRS WHICH THEY HAVE CAUSED   

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