Health Act
1999:
A New Arrangement for the NHS that is More Consistent With
the Ant-Social Direction for the NHS
Much has been reported in the media recently about the
crisis in the NHS. Generally speaking, whether it has been the recent flu
crisis, crisis of waiting lists, or the crisis in the quality of various
treatments as compared with other countries in Europe, the government and media
have speculated along the lines of how the NHS is funded. Perversely they have
pushed the very agenda which is causing the crisis which is reducing the
investments in health care in real terms, developing the internal market in
health care between NHS services and with the private sector, increasing the
penetration of finance capital into the NHS under the Private Finance
Initiative PFI, increasing prescription and other charges and so on.
However, very little has been said about the Health Act which gained the
Royal Assent in June 1999, and by which the government has launched this
agenda.
In looking at the Health Act 1999 it is important to
understand what it is that New Labour was trying to amend. Under the previous
arrangements brought about by the Conservative Health and Community Care Act
1990 an internal market was set up whereby District Health Authorities,
instead of providing health care for their District, became purchasers of
health care. At the same time, NHS Trusts were set up as providers of health
care at hospital and community sites and in addition to this within each
hospital departments became responsible for their own budget. The internal
market included the buying and selling of services between Health Authorities
and NHS Trusts, between NHS Trusts, between these bodies and the private sector
and between individual departments of NHS Trusts. GP fundholders were also set
up at many practices that had over eleven hundred patients. These GP practices
then became purchasers able to buy hospital and community services from
whatever part of the country they chose.
What has to be remembered is that this whole anti-social
direction for the NHS was becoming exposed under the Conservative Government.
Most blatant were the arrangements with GP fundholders who were able to use
their position so that their patients could jump the waiting lists which was
dramatically exposing inequality in service and quality of treatment. At the
same time, the fact that these GP fundholders could purchase services outside
of the districts in which they worked was causing crisis at local NHS trusts
who were providing these services but not receiving the contracts from their GP
fundholders.
When New Labour came to power it set about by claiming that
it was putting forward an agenda for a modern health care system. The White
Paper "The New NHS - Modern Dependable" was released in 1998 before
the Health Act 1999 was passed by Parliament. The White Paper embodied
New Labour's claim for a "Third Way" for the NHS. Its direction was
characterised as being opposed the return to a single health care system which
was planned and provided by health authorities but at the same time opposing
the "internal market" in health and the inequalities it was causing.
It was claimed that there was a "Third Way" that was fairer and the
way forward for the NHS to safeguard its future. It was an agenda of
"major reform" improving the "quality" of care and doing
away with the "internal market of the Tories" and replacing it with
new Primary Health Care Trusts (PCTs) that will provide a modern localised
health care system "led by doctors and nurses".
In the Introduction the Health Act 1999 proclaims
that it is an "Act to amend the law about the national health service,
make provision in relation to arrangements and payments between health service
bodies and local authorities with respect to health and health related
functions; confer power to regulate any professions concerned (wholly or
partly) with the physical or mental health of individuals; and for connected
purposes." What is striking about the Act is that it is stripped of all
the grandiose claims in the White Paper, and is a collection of legal
enactments mainly concerning financial arrangements, many of which are obscure
and the significance of which is not immediately apparent. But the Act repeals
the law about fundholding practices and creates a new local administration of
health services in the form of Primary Health Care Trusts for England and
Wales. In Scotland, it repeals the law about fundholding practices. The rest of
the act deals with financial and other arrangements between NHS Trusts and
Health Authorities and Local Authorities. It also deals with the question of
the "quality" of health care provided by all of these bodies.
The Act repeals only sections 14-17 of the National
Health and Community Care Act 1990, which was the main legislation of the
previous Conservative governments. In repealing the law on GP fundholding
practices, the Act does not do away with the internal market, which was the
purpose of the 1990 Act. Thus, the purchaser provider split between Trusts
selling and buying health services, both externally and internally and with the
private sector is not ended but given the credence of a "Third Way"
by New Labour's Act. The Act does not scrap the Private Finance Initiative
(PFI) which is a mechanism introduced by the previous government to
allow finance capital to directly profit from treasury allocations to the NHS
and an arrangement to bring the private sector into ownership of hospitals and
other buildings.
In doing away with GP fundholding the Act sets up Primary
Health Care Trusts (PCTs). The setting up of PCTs in a short section 2 (1) 16A
16B of the act mentions only in passing the role of PCTs "with a
view" of "providing or arranging for the provision of services under
this Part of this Act. However, there are no mention of "duties"
until the main thrust of the Act starts with section 3 Primary Care Trusts
finance which outlines paragraph by paragraph and page by page the
financial constraints that the new PCTs and Health Authorities must operate
under.
Under 97C - (1) (1) It is the duty of every Health
Authority, in respect of each financial year, to pay to each Primary Care Trust
whose area falls within their area-
(a) sums equal to the trust's general Part II expenditure,
and
(b) sums not exceeding the amount allotted by the authority
to the trust for that year towards meeting the trust's main expenditure in that
year.
Under 97D-(1) Financial duties of PCTs "It is the duty
of every PCT, in respect of each financial year, to perform its functions so as
to secure that the expenditure of the trust which is attributable to the
performance by the trust of its functions in that year (not including
expenditure within subsection (1) (a) of section 97C above does not exceed the
aggregate of -
a) the amount allotted to it for that year under subsection
(1) (b) {above} of that section.
b) any sums received by it in that year under any provision
of this Act ( other than sums received by it under that section), and
c) any sums received by it in that year otherwise under this
Act for the purpose of enabling it to defray any such expenditure."
In other words, in the setting up of the PCTs and the
financial arrangements it imposes on Health Authorities and NHS Trusts, the
Health Act 1999 does not enforce the duties on these bodies to guarantee
that the health care they purchase, or provide, will ensure a comprehensive
service for the people of the area they serve but on the contrary the Health
Act places the main "duties" on them to "perform their
functions" so that their expenditure does not "exceed the
aggregate" of revenue allotted to them for that year. The only duties on
quality of care come later in the act on the setting up of a Commission for
Health Improvement concerning the quality of health care supplied by Health
Authority, NHS Trust and PCTs. These are "arrangements for the purpose of
monitoring and improving the quality of health care which it provides to
individuals." In other words, the Health Authorities, NHS Trusts and PCTs
are only expected to put in place arrangements Health Improvements (HIMPs) to
improve the quality of care they do provide to individuals but there is no
requirement to provide the quality of a comprehensive health care system at the
highest level for the whole population covered by them that meets the needs of
all.
Under the heading of partnership the Act amends the
1977 Act to include PCTs, in the provisions which make it a duty for health
Authorities, NHS Trusts, and local authorities to co-operate with one another.
The provisions of this section, which come from the 1977 Act, make it the
"duty of each Health Authority, at such time as the Secretary of State may
direct, to prepare a plan which sets out the strategy for improving –
a) the health of the people for whom they are responsible,
and
b) the provision of health care to such people."
What is most striking is that the question of implementing
such a plan is not even discussed let alone enforced by the 1999 Act. Once the
Health Authority has prepared this plan and providing it keeps it under review
then it has discharged its "duty". In other words, even this
strategic plan for health care which is prepared with all present revenue
restraints can be reviewed and changed providing all the health bodies review
the plan. However, the main change to the 1977 Act is to facilitate and empower
payments by NHS bodies to local authorities and payments by local authorities
to NHS bodies for services or facilities. These new arrangements put in place
ensure that services provided by the NHS for the local authority "shall
not affect - any power or duty to recover charges in respect of services
provided in the exercise of any local authority functions." This new
arrangement is highly significant in the development of the internal market in
health care in that for first time NHS bodies could find themselves providing
social and other services, purchased by local authorities, for which they are
expected to charge the patients. How long will it be before New Labour, or a
subsequent government, use this mechanism to extend charges for other health
care provision within the NHS itself.
Under previous legislation Health Authorities and Trusts
have increasingly cut bed numbers and staff to dangerously low levels. This has
been driven by the Conservative 1990 Act, which enabled the government to
impose "efficiency savings" on NHS Trusts. NHS Trusts have been
forced to, pay from their revenue "efficiency savings" of 3% a year
had to pay interest and dividends on their capital assets. The hospital
buildings that the Trusts "purchased" from central government, have
in reality been paid for over and over again by the people often by local
subscription before the NHS was set up and since. This has forced the selling
off of land and assets to cover debt and interest payments on hospital
buildings. NHS Trusts have been forced government to put all new building
projects to tender under the Private Finance Initiative PFI. The New
Labour government has taken up this same agenda put forward by the Margaret
Thatcher and the Conservatives to try and consolidate it. New Labour has
removed the obstacles to PFI and introduced more Hospital PFI
projects than any previous government. It has closed even the loophole to an
NHS Trust carrying over their "overspend" to the following year by
forcing them in the act to spend no more than the "amount allotted to it
for that year". These are all part of the new arrangements re-enforced by
the Health Act 1999.
It is no accident that the Health Act 1999 states
that its main objective is an "Act to amend the law about the national
health service, make provision in relation to arrangements and payments between
health service bodies and local authorities with respect to health and health
related functions". The Act does not to deal with the overall anti-social
direction which successive governments have taken the NHS. It does neither
defends the NHS, nor safeguards its future, but on the contrary it is plunging
the NHS into even deeper crisis where the people know to their cost from last
winter that even basic health care is now not being provided in terms of beds
and nurses to staff them. The Act does away with GP fundholding but only to set
up PCTs, with some token local doctor and nurse input. What it is in reality is
another arrangement of purchasing and providing health services that is more
consistent with this ant-social direction in health care. It will achieve a
"fairer" way of providing "quality" health care but health
care rationing will continue apace and more and more people will have their
lives ruined, or die prematurely as a consequence and health care workers will
be forced once again to bear the burden of the crisis and increased work loads.
Only a health act that is opposed to health care rationing,
that presents a pro-social direction for the NHS to provide a modern health
service that guarantees the inviolable right of all to health care at the
highest level, that increases the investments necessary to meet all the health
care needs of the people, can truly be called a modern arrangement for the NHS.
Such an Act would start by writing off all the debts of NHS Trusts other health
bodies. It would scrap the PFI and implement a moratorium on interest
payments on the National Debt so as to find the investments necessary to plan
for the future, provide the investments and provision for the NHS and other
social programmes. It would legislate to enable health workers and local people
to directly decide the plans of Health Authorities and other NHS bodies and
ensure that these plans are implemented in practice. It would legislate on the
chronic staff shortages and end the divisive and low pay of most health
workers. Such a health Act would be a first step to ensuring a longer-term plan
for the development of health care. This is the agenda which must be taken up
by health workers, as well as the working class and people, in the fight to
defend and safeguard the future of the NHS in Britain.
Workers’ Weekly Health Group
