Posted 19/09/2013

How is the new NHS supposed to work then?
We in the medical negligence team at Ashtons Legal can claim in a modest way to know something about the way the NHS works.  We spend our lives examining problems which have arisen from its treatment which has gone wrong in some way, and between us we have over 90 years of experience in working with every part of the way the NHS provides treatment.

So when the government announced in 2010 that it planned a fundamental reorganization of the NHS, we were concerned.  The re-organization was explained as a means of ‘giving control to GPs’, but that was always a naive and misleading way of trying to explain it.

GPs are very busy people.  They spend every moment looking after their patients.  (One GP of our acquaintance estimates he deals with over 70 patients a day, and that’s probably not unrepresentative.)  So there was never any possibility that these over-worked people could find time for another full-time job buying-in medical services for their practice.

Is that what happened in practice?
What happened in practice, of course, was predictable.  GPs’ practices came together to form consortia so they could ‘bulk buy’ services, then merged further so that they became enormous buying groups called ‘clinical commissioning groups’ (or CCGs).

But at the same time as re-organizing the NHS, the government had decided it needed to introduce competition, in the form of private medical companies. They would now compete with the NHS for the ‘business’ offered by the CCGs.

Only the CCGs were by now made up not only of GPs but representatives from outside the NHS – in some cases from the private healthcare sector.  And the contracts up for grabs were worth tens and sometimes hundreds of millions of pounds.

So where does that leave us?
Instead of having a system in which your GP refers you to your local hospital for further treatment, you will now be referred to the provider who has won the contract from the CCG.  And if you need more than one sort of treatment, then it’s likely you’ll be referred to some other provider who has won the contract for that other treatment.

Sometimes your provider will be your local NHS hospital; but increasingly often it will be a service offered by a large private healthcare company.

Now over the years we have come to the conclusion that many NHS errors in which a patient is inadvertently injured arise not through the incompetence of a particular GP or surgeon or nurse, but a breakdown in communications and the system.  A doctor doesn’t write up his notes well enough to be understood by another.  A nurse isn’t properly trained in how to use a piece of equipment.  There is a misunderstanding over a drug dose.

But the new system deliberately breaks up the NHS into smaller units, each with its own responsibility and quite often with little or no appreciation of what’s happened further up or down the chain.  It’s been fragmented.  So since the NHS has been deliberately broken up into smaller and separate pieces, our experience tells us that it’s almost inevitably going to lead to more misunderstandings and breakdown in communication and so more things going wrong for patients.

That brings in new complications and potential dangers
We are also concerned at another development, however.  We have no issues in politics or principle with private healthcare companies being given contracts to carry out NHS work.  But our experience of dealing with the private sector tells us that they don’t share the same public service ethos as the NHS and too often, in search of profits, they cut corners and leave patients in potential danger.

Too often we have found that private healthcare companies refuse to consider patient complaints against them.  Clearly we can’t speak for the whole private healthcare sector and many companies may behave perfectly responsibly.  But in our experience many employ too few staff, so as to reduce costs.  They are secretive and refuse to co-operate with claims procedures.  They insist on imposing confidentiality clauses as a condition of settling cases, to avoid a scandal.  They sometimes employ less experienced (sometimes even not properly qualified) and so cheaper doctors.  In the past there have been instances of claims against private providers which have been mysteriously met instead by the NHS, even though the errors were not theirs.

One major healthcare provider has admitted deliberately misrepresenting data under one contract regarding the number of staff they employed on duty 252 times.  They have been accused of fraud.  The same company has admitted fraud in another government contract and is being pursued by the Serious Fraud office.  But this huge company is still bidding for NHS contracts, to treat NHS patients.

What’s more, we have evidence which we are pursuing that often the procedure by which NHS contracts are awarded is deliberately skewed against the NHS winning the work and in favour of the private sector.  That’s something we’re pursuing through the media and Parliament.

What happens next?
The government has been working to set up the new structure of the NHS for three years.  The old cumbersome bureaucracy has been dismantled but replaced with another which looks even more complex and difficult to understand.  In fact because of its complexity, it seems that situations arise that the government never envisaged and so more and often ad hoc tiers of bureaucracy are added.

Will these changes bring the benefits we were promised?  It may be too early to tell.  But the fragmentation of the NHS which concerns us (above) has in fact now become a cornerstone on which the new changes have been built, in the name of competition.  The government’s view is that health providers competing for business will improve services.  But our experience tells us that fragmentation leads to those breakdowns in communication we have already explained.  Add to that the tendency of private health providers to hide behind ‘commercial confidentiality’ and that dangerous fragmentation can only become more marked.

We also fear that the traditional ethos of the NHS has been fractured.  We are more concerned about new healthcare providers being influenced by the perfectly legitimate interests of their shareholders as much as those of the NHS patients for whom they are paid to care.

As we write this, NHS contracts worth £1 billion are under consideration in Cambridgeshire.  Those bidding are believed to include the company above which admitted fraud; another company which has been convicted of illegal trafficking in human organs; and yet another which has already so disastrously run its present NHS contract that it has asked for a government bail-out of many millions more.

At the moment we have no idea how those contracts will be awarded.  But we will be making our voice heard on behalf of patients through the news media, in Parliament and elsewhere.

Follow the Ashtons Legal medical negligence team on Twitter: @Sandra_Patton1