Lansley's bill has killed debate about the future of the NHS

There is a whole lot of politics and very little policy in the war over the government's health refo

Does any of the three main parties actually have a policy for the NHS? It may sound like a peculiar question given that huge stores of energy are currently being spent debating the future of the health service in parliament, but having a big argument in Westminster is not the same as having a coherent agenda.

The Health and Social Care Bill returns to the House of Lords this week and Liberal Democrat peers have some amendments covering the controversial section of the reforms dealing with increased competition between different providers. Crudely, speaking the vital question is how widely market forces will be allowed to operate when, under the new structures created by Andrew Lansley's reforms, GPs are given control over budgets and instructed to purchase the best value care for patients.

Lib Dems in the Lords want to rewrite parts of the Bill that would give the Competition Commission regulatory authority over healthcare. That, it is feared, would amount to a legal mandate for breaking up NHS "monopolies" and, if enough private providers complained about being shut out of contracts, forcing GPs to curtail their use of state services. In terms of the underlying principles of the Lansley project, this argument is pivotal; it is the big one. It is clear from the way the original bill was designed that the Health Secretary wants a radical acceleration of competition to be the main driver of change in the service. The logical extension of the reforms - as initially conceived - is for the NHS label to be, effectively, a kite mark, signalling that care has been paid for by the state and is being carried out by a licensed provider. It should, in theory, be irrelevant whether the people actually doing the caring are public or private sector employees.

It is also clear that the government is too scared to tell the public that this is what Lansley had in mind when he drafted the bill. It sounds and looks a little bit too much like privatisation, which is not a word the Tories want attached to their ambitions for the NHS. That makes it very hard for the government to fight the forthcoming battle in the Lords.

Number 10 is saying it is relaxed about amendments that might "clarify" this crucial section of the bill, but would be unhappy with substantial changes. Does that mean the Prime Minister insists on a level of competition from private providers that forcefully dismantles state monopolies? Or would he be satisfied with a watered down competition clause that amounts, in essence, to an extension of the "internal market" that existed under Labour? Another way of phrasing the question: does Cameron actually want to implement Lansley's vision or is he only pressing ahead with the bill to avoid the humiliation of abandoning a high-profile project in which he has already invested a lot of political capital?

The Lib Dem amendments have been sanctioned by Nick Clegg, largely, it seems, because he is aware of deep dissatisfaction in his party and fearful of being presented, come the next election, as an accomplice in Tory sabotage of a cherished national institution. But does he think a dramatic increase in competition from the private sector - policed by an anti-monopolies regulator - would be a driver of greater efficiency and quality of care in the health service? If the answer is "yes", why is he allowing his peers to sabotage the bill? If the answer is "no", why is he voting for any of this legislation?

As for Ed Miliband, his position is clear enough for an opposition leader. He has written in the Times today calling (again) for the bill to be scrapped. The issue of competition is addressed in passing:

Nor is the cause of integration helped by the Bill's aim to turn the whole NHS into a commercial market explicitly modelled on the privatisation of the utilities in the 1980s. Introducing a free-market model throughout the healthcare system -- quite different from the limited competition currently in place -- will have a chilling effect on the behaviour of those trying to co-ordinate and co-operate.

Another way of putting this might be that market forces are tolerable when Labour allows them to operate in a carefully controlled environment, but destructive and corrosive when unleashed by Tories and Lib Dems. Fair enough, I suppose, but it is a very queasy way of making peace with the Blairite legacy of public service reform. Nowhere else has Miliband dealt explicitly with the question of whether or not he thinks competition is a healthy or a pernicious mechanism for getting value for money in the public sector.

Which brings us back to that initial question. What is the three main parties' health policy? As far as I can make out it is as follows:

Conservatives: secure any version of Lansley's reforms, regardless of what the outcome will actually be for the NHS.

Labour: make sure every problem in the NHS is seen as a consequence of Lansley's reforms; avoid being drawn on alternative plans.

Liberal Democrats: look conspicuously worried about Lansley's reforms; in the event that they are enacted, hide.

Rafael Behr is political columnist at the Guardian and former political editor of the New Statesman

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All doctors kill people – and the threat of prosecution is bad for everyone

We must recognise the reality of medical practice: just because a doctor makes a mistake, that doesn’t mean they’ve all broken the law. 

On 15 November the Court of Appeal quashed the 2013 conviction for gross negligence manslaughter (GNM) of a senior consultant surgeon in London, David Sellu. Sellu, who had completed his prison term by the time the appeal was heard, will never get back the 15 months of his life that he spent in jail. Nor will the personal and family trauma, or the damage to his reputation and livelihood, ever properly heal. After decades of exemplary practice – in the course of the investigation numerous colleagues testified to his unflappable expertise – Sellu has said that he has lost the heart ever to operate again.

All doctors kill people. Say we make 40 important decisions about patients in a working day: that’s roughly 10,000 per annum. No one is perfect, and medical dilemmas are frequently complex, but even if we are proved right 99 per cent of the time, that still leaves 100 choices every year where, with the benefit of hindsight, we were wrong.

Suppose 99 per cent of those have no negative consequences. That’s still one disaster every 12 months. And even if most of those don’t result in a fatal outcome, over the course of a career a few patients are – very regrettably – going to die as a result of our practice. Almost invariably, these fatalities occur under the care of highly skilled and experienced professionals, working in good faith to the very best of their abilities.

If one of these cases should come before a crown court, the jury needs meticulous direction from the trial judge on the legal threshold for a criminal act: in essence, if a doctor was clearly aware of, and recklessly indifferent to, the risk of death. Sellu’s conviction was quashed because the appeal court found that the judge in his trial had singularly failed to give the jury these directions. The judiciary make mistakes, too.

Prosecutions of health-care professionals for alleged GNM are increasing markedly. The Royal College of Surgeons of England identified ten cases in 2015 alone. This must reflect social trends – the so-called “blame culture”, in which we have come to believe that when a tragedy occurs, someone must be held responsible. In every one of these cases, of course, an individual’s life has been lost and a family left distraught; but there is a deepening sense in which society at large, and the police and Crown Prosecution Service (CPS), in particular, appear to be disconnected from the realities of medical practice.

Malpractice investigation and prosecution are horrendous ordeals for any individual. The cumulative impact on the wider health-care environment is equally serious. In a recent survey of doctors, 85 per cent of respondents admitted that they were less likely to be candid about mistakes, given the increasing involvement of the criminal law.

This is worrying, because the best way to avoid errors in future is by open discussion with the aim of learning from what has gone wrong. And all too often, severely adverse events point less to deficiencies on the part of individuals, and more to problems with systems. At Sellu’s hospital, emergency anaesthetic cover had to be arranged ad hoc, and this contributed to delays in potentially life-saving surgery. The tragic death of his patient highlighted this; management reacted by putting a formal rota system in place.

Doctors have long accepted the burden of civil litigation, and so insure themselves to cover claims for compensation. We are regulated by the General Medical Council, which has powers to protect patients from substandard practice, including striking off poorly performing doctors. The criminal law should remain an exceptional recourse.

We urgently need a thorough review of the legal grounds for a charge of GNM, with unambiguous directions to the police, CPS and judges, before the spectre of imprisonment becomes entrenched for those whose only concern is to provide good care for their patients. As Ken Woodburn, a consultant vascular surgeon in Cornwall who was accused and acquitted of GNM in 2001, has said: “You’re only ever one error away from a manslaughter prosecution.”

This article first appeared in the 01 December 2016 issue of the New Statesman, Age of outrage