10 tips

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Ten tips to help save the NHS from privatisation
Caroline Molloy from Stroud explains how to fight privatisation of the NHS at a local level, based on
her own experience in a Gloucestershire campaign that successfully reversed a decision to transfer 8
local hospitals out of the NHS, at the eleventh hour, keeping them instead in an NHS Trust.
1. Understand the legal situation
As we found, even after the Health & Social Care Act 2012, health services DON’T HAVE TO be
tendered (ie forcing NHS providers to compete with bids from private providers). Decisions about
who provides local health services, are generally made not by central government, but by the local
commissioners (budget holders) – currently the PCT (Primary Care Trusts), with CCGs (Clinical
Commissioning Groups) taking over in April 2013 (and already meeting in shadow form).
Of course there is pressure on commissioners from government to exercise this choice through
competitive tendering of services, but much of this is policy, not law – so local commissioners can
exercise their discretion as to whether they follow it (though they may be very reluctant to admit
this!). Indeed, Lansley gave CCGs written promises in letters in February 2012 (1, 2), saying “I know
many of you have read that you will be forced to fragment services, or put services out to tender.
That is absolutely not the case….you as commissioners, not the Secretary or state and not
regulators, should decide when and how competition should be used to serve your patients
interests.”
Will CCGs hold the government to these promises? Whilst the PCTs / CCGs do have to make
‘commissioning’ decisions (the ‘internal market’), there is no clause in the Act that requires this to be
done through tendering (or indeed through AQP, see below). And EU Procurement Law doesn’t
apply, if an arrangement is simply made with another NHS Trust to provide services. Such
arrangements have been made, for example, in the case of many community services (district
hopsitals, health visitors, etc), and is what ultimately happened in Gloucestershire – even after the
Act, and reversing a previous decision to outsource. The legality of not tendering was also confirmed
in a letter from Simon Burns MP, Health Minister, in May 2012, where he states if services are
transferred to an NHS Trust, there is ‘no case for tendering’ and ‘an administrative transfer should
not raise the risk of credible challenge under procurement law’ (3).
As well as tendering, another key avenue for privatisation is the policy of AQP (‘Any Qualified
Provider’), where private companies are pre-selected to be on a shopping list, and doctors are
encouraged to refer patients to this list, for an increasing number of services. AQP is even worse
than tendering. If it takes off, our health services will be broken into tiny pieces, meaning hassle for
patients and little control or oversight by doctors or anyone else. The rump of the NHS that is left
(dealing with the difficult cases the private sector doesn’t want) will struggle to survive.
Essentially, CCGs have 5 choices in commissioning (buying) health services – (i) AQP (ii) competitive
tendering (iii) ‘single tender actions’ (iv) extending an existing contract or arrangement with an NHS
provider, or (v) coming to a new arrangement with an existing or new NHS Trust, without tendering.
Of these, the first two will be likely to lead to privatisation. The third and fourth options are
mentioned in the government guidance to CCGs (4), though this guidance also makes clear there will
be heavy pressure only to use them in ‘exceptional’ cases, also not for ‘innovative’ services – so
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campaigners may have to make these arguments. Only the 5th option – the one we got in
Gloucestershire – guarantees the private sector will be kept out of NHS services. It is not mentioned
in the guidance to CCGs, but our solicitors have confirmed it is perfectly legal, reasonable, and in line
with the political promises that were made.
So the question will be, how can campaigners ensure the CCGs keep NHS services out of the hands
of the private sector? The rest of this guide suggests ways to do this.
2. Understand the political situation
Although the Act sets up various shadowy bodies who may put increasing pressure on CCGs to
tender out services, campaigners can use the government’s promises of putting patient ‘choice’,
patients and clinical values first, to argue for the local choice to stay in the public sector. The
government does not want to be seen to be breaking its word and overruling local clinicians and
communities, and has shown it is prepared to make exceptions where this will is expressed strongly
enough. This is where media campaigns, online and street petitions, surveys, lobbies,
demonstrations, ‘no private provider’ requests (see KONP in resources) and letter-writing campaigns
all have a part to play, as well as legal challenges.
The campaign against the Bill (now Act) presented what plans could mean for the NHS, but this
campaigning required some simplification, which has perhaps resulted in confusion, even despair.
No doubt there are plans afoot even now, to put compulsory tendering on a stronger statutory
footing than it currently is. So the danger is that if we don’t shout about, and use, the wriggle room
that the (muddled) Act presents to local campaigners, we could lose these chances.
3. Focus on a local issue
Focus on a local issue (whilst making the link with the national picture) so that people feel there is a
chance of influencing things, and follow the money. CCGs hold the budgets and make local decisions
about services so they are an obvious focus for campaigning. Supposedly the CCGs are made up of
doctors and represent doctors in their areas, but most GPs have had very little involvement – some
may be willing to speak out. One way of encouraging CCGs to stand up for the NHS in face of
government pressure, is to get them to make commitments to fairness and publicly owned health
services in their constitutions (which are being settled now but are also open to revision). 38 degrees
have come up with one suggested form of wording, and other groups – including the British Medical
Association – have endorsed a stronger form of words (5). Why not ask the CCG to also include a
commitment in their constitution that they will not offer any services to the private sector without
properly considering NHS options and fully consulting the public and staff first. Our lawyers have
confirmed this would be perfectly legal and reasonable.
Moving away from the commissioning side, you can often boost a campaign by looking at the
providers, too. Privatisation weakens NHS providers by cherry picking what’s profitable (often with
unfairly advantageous contracts) until what is left in the NHS isn’t sustainable. PFI and Foundation
Trusts (both ‘market reforms’) have saddled the NHS with expenses, debts, and fragmentation.
Where the NHS is struggling and making cuts as a result of all this, such problems are then used as
an argument for more privatisation! Look out for talk of ‘efficiency savings’ and ‘reconfiguration’ – in
other words, cuts and hospital/bed closures.
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Don’t be fooled by claims that ‘there is no money’ – if government can find billions to bail out the
banks, why can’t it keep NHS hospitals afloat, and even write off PFI debts? Where ‘integration’ or
‘innovation’ are presented as solutions, be aware that it is politically easier to privatise a ‘new’ or
‘innovative’ service, than an existing one. Meanwhile, private sector providers make huge profits,
pay very little tax (6), and are not averse to using their money to try and influence politicians and
decision makers (politicians and CCG members have to declare their financial and business interests,
which can sometimes yield interesting results if you dig around! (7, 8)
4. Do your research
Do your research to find out where privatisation is threatened, both by talking to people locally
(especially staff/unions), and using the resources at the end of this article. At least half the battle is
to find out what they are planning, before the contracts are signed. Look at PCT/CCG board papers
and minutes which should be online. Look out for harmless sounding language like ‘innovation’,
‘integration’, ‘partnership’, ‘transforming’, ‘modernising’, ‘choice’, ‘diversity of providers’, ‘outcomefocused’,
‘contestability’, and ‘co-production’ – all often used as code for privatisation. Follow up
references to sub-committees (eg Audit committees), ‘expert advice’ and ‘closed sessions’ where
vital information is often buried – these minutes and reports should be public too.
Publicly challenge commissioners on any assertions that their plans will make services ‘more
inclusive / sustainable / better’ – ask them what evidence they are basing this on. If their evidence is
missing or unconvincing, publicise that they have ‘failed to demonstrate how services will be
protected’. Ask why NHS options aren’t being considered properly. If they say they have ‘no
alternative’ but to open things up to the private sector, or that they ‘can’t’ give you commitments to
public ownership, ask why not – what legal obstacle (ie a specific clause or regulation) they are
referring to.
Make Freedom of Information requests for papers, letters and reports (including asking for any 3rd
party/ consultant reports they may have commissioned in relation to the service provision) if
necessary. FOI requests may be refused on grounds of ‘commercial confidentiality’ but you can, and
should, appeal on grounds of public interest. Check Supply2health.nhs.uk to see what services in
your area may be being prepared for privatisation. (We found that even if commissioners advertise
for ‘expressions of interest’ or ‘pre-qualification questionnaires’, this is a pre-tendering stage, and
does not commit them to actual tendering).
5. Explain what privatisation means for patients
The other half of the battle is to explain to both decision makers and the public, why tendering &
privatisation is bad, focusing on the impact on patients & frontline services (be as local as
possible).Because this is happening so fast & so secretively, you may need to speculate what the
likely impact is, drawing on experiences from elsewhere of how markets damage healthcare. Speak
to others that have had similar battles, and also look to recent examples like dentistry, Independent
Treatment Centres, PFI, the NHS IT debacle, and of course the notorious American system.
We argued that privatisation would mean fragmentation, loss of access to specialist equipment /
NHS expertise & funds, loss of assets (with hospital buildings transferring over to a new company,
‘PropCo’), loss of accountability, additional VAT costs (private companies can’t reclaim VAT, unlike
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the NHS), and additional admin costs (in the US system, $1 in every $3 is spent on admin, tendering
itself is hugely expensive, & every major NHS reorganisation in the last 30 years has resulted in a
doubling of admin costs).
Ultimately the only way private companies can make shareholder profits from healthcare is by
cutting services and/or staff, and/or charging patients (something the Health & Social Care Act
makes easier). Privatisation wastes money – and remember the NHS is already facing £20-40billion
of cuts. Privatisation is part of the problem, not part of the solution, to cuts – it is politically easier
for private companies to inflict cuts, than accountable public servants.
If you have information (for example from the unions) on impacts on staff (9), use it to make links
with the impact on patients – less well-trained or demoralised staff, loss of public sector ethos, etc.
Most people respect the views of health workers and recognise they are best placed to understand
the complexities of the changes. In Gloucestershire the fact that 91% of staff opposed privatisation
was definitely influential with the public. Could the union conduct its own ballot of staff views, if
senior managers haven’t consulted them on changes?
6. Build a local network
Build a local network to share information and tasks – hold public meetings and events, and always
collect contact details. Publicise your events and network through posters, leafleting (with calls to
action) and street petitioning (have a stall or banner to attract attention), through social media, and
local press and radio. Cultivate friendly journalists with regular, locally focused press releases &
photo opportunities about every action you undertake, & persuade reluctant editors of local interest
through sustained letter writing campaigns focusing on personal experience. Seek out existing local
groups – ask Keep Our NHS Public if there is a local group (and if not, set one up or affiliate an
existing group).
Other organisations concerned about the NHS which may already have a local presence include 38
degrees, UK Uncut, the National Pensioners Convention, disability campaigners, and (as in our case)
an active local Anti-Cuts group. There are also a wide range of groups focused on specific health &
disability issues, friends of hospital groups, and so on, that may or may not be willing to get involved
in campaigning.
Seek out health workers, especially union reps and branch officials. If possible hold joint meetings
and training. All TUC-affiliated unions (Unite, Unison, GMB) oppose privatisation, and in practice,
most professional organisations (eg Royal College of Nurses, British Medical Association) often do
too. So they are important allies. Be aware that the health workers are under many attacks, from
pensions and pay freezes to staff cuts, that unions’ ability to take lawful action is constrained, and
that whilst they can draw on national support, they are only really as strong as their local
organisation. So encourage people to join, and get active within, unions. Privatisation can be a great
issue to organise around, and build union links with the local community. The local Trades Council
(10) (if there is an active one) can also help spread the message to other local union members.
Unemployed, student and retired people can also be union members.
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7. Include but don’t rely on politicians
By all means include politicians in your network, meet with them, and, if you want, share platforms
at meetings with both political supporters and opponents (perhaps organised by a 3rd party). They
have access to information, publicity, and networks. Having them on side will put pressure on local
decision makers (MPs can put pressure on the Department of Health on your behalf too, if
necessary).
Remember, though, that politicians aren’t necessarily experts, and they obviously have both an
electoral agenda and a party line, which sometimes turns people off. They often make vague
statements that they ‘support the NHS’ – ask them if they will publicly commit that they support
public ownership of the NHS, or at least, whether they support their electorate’s right to decide
whether the area’s services stay in the NHS, (something it’s hard for them to be seen refusing!) and
push them to sign up to a short public pledge to this effect. We used this tactic to effectively put
pressure on our local Tory MPs (11,12,13). Ownership is key – don’t accept fudges on this!
8. Don’t be fooled by social enterprise ‘solutions’
Don’t be fooled by social enterprise / mutual / co-operative / charitable / third sector ‘solutions’.
These are often presented as more ‘inclusive’, ‘liberating’ staff and widening ‘ownership’. But in the
NHS, they have mostly been forced onto unwilling staff, are opposed by health unions (14) , and
have the effect of narrowing ownership of something that previously belonged to all of us.
The commonest forms of social enterprise are also, legally, private companies, so have all the
disadvantages of privatisation listed above, including opening services up to EU Procurement Law.
They have an additional disadvantage in that, cut adrift from the NHS, they are too small to
effectively compete with the private sector – as in Surrey, where one of the first large ex-NHS social
enterprises, much praised by David Cameron, was outbid by Virgin Health in November 2011 (15).
The third sector has an important role in advocacy and providing services the state never has – but
the government’s strategy is to cut charities funding and encourage them to be co-opted into the
‘big society’, ie taking over public services. Francis Maude MP made this ‘backdoor privatisation’
strategy clear. Leaked minutes of a meeting he had with the CBI shortly after the last election
reported the minister saying that ‘wholesale outsourcing to the private sector’ would be politically
‘unpalatable’, so mutuals, co-ops, charities and the 3rd sector would often be used as vehicles for
backdoor privatisation instead (16), as would joint ventures or ‘partnerships’ between public and 3rd
sector or private providers (for an illustration of this latest line of attack, see (17)).
9. Understand insider and outsider strategies
One response to the Act is to try and get NHS supporters onto watchdog bodies like HealthWatch
(replacing LINKs), the new Health & Wellbeing Boards, council Scrutiny committees, and Foundation
Trust boards of governors. Of these, HealthWatch has little power but the Health & Wellbeing
Boards (which include councillors) are currently writing strategies which will have some influence
over CCGs. Campaigners can also use formal and informal links that they have (sympathetic
managers, senior clinicians, board & committee members, politicians) to try find out about, and
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improve decisions – for example, asking searching questions about outsourcing plans before they
are in the public domain, either publicly or more privately and discreetly.
These ‘insider’ approaches have value. However, campaigners should be wary of diverting too much
energy into these routes (committees can suck energy from the best of us!). The system now in
place is incredibly undemocratic, so working within it is always going to be limited. Any information
that committee and board members have is only useful if it is shared with campaigners, and lone
individuals may find themselves under considerable pressures.
‘Outsider’ strategies use the media as much as possible, and include tactics from public meetings,
demonstrations, petitions and lobbies, to legal, industrial and even direct action. Such tactics are
often better able to target power where it is really being exercised, and to mobilise our most
powerful weapon – public opinion.
10. Be aware of what the law can – and cannot – do.
It can be used to stop the wrong thing happening – at least temporarily, and sometimes even at the
eleventh hour (as in our case) – but not to make the right thing happen. For that, you also need a
political campaign that mobilises public opinion and puts pressure on local decision makers,
politicians, and even on private providers.
Talk as soon as possible to solicitors specialising in public law (we used Leigh Day, who were
excellent) if you think you may have a case (if they agree, they will help you understand what
evidence you need to gather). The Judicial Review system (where you think the government or a
public body like the NHS has broken the law) focuses on the process, not the outcome, of decisions.
Has the decision-making process been flawed? We used procurement law (which rules out services
being quietly handed over to a 3rd sector body), but other cases are more likely to hinge on a failure
to carry out consultation, equalities assessments, or to properly consider NHS options – before
offering services up for tender.
A judicial review can be taken by anyone, but can be expensive (up to £50,000) unless it is taken by
an individual who is eligible for legal aid, and who uses the services in question. Campaigners can
provide support. People who are on minimum income related benefits, including some pensioners,
are the mostly likely to be eligible for legal aid. Even so, in such cases, the community will be
required to raise funds – in our case, we raised £7,000 through a public appeal – though if you win,
you’ll get this money back. An initial consultation with lawyers (if they are interested) is always free.
Regarding consultation requirements – the law requires ‘consultation or engagement’ where there is
‘service change’. You may be told that ‘change of provider does not equal service change’ (and so
they don’t have to consult – this is what happened when Suffolk hospitals were taken over by Serco).
In fact the law is quite open on this point – in other words, it’s up to you to argue that a change of
provider will impact on services, and that therefore there should be a consultation, at a formative
stage in decision making (which you can then try and strengthen, influence & publicise). The law
here is not as strong as it should be – so if you can’t use the law, you’ll need to work harder to find
shocking examples to shame commissioners into stopping, or at least slowing down and consulting
(whilst you build your campaign).
And finally… don’t give up!
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Public opinion is strongly on the side of keeping the NHS public – fewer than 1 in 5 people want
more competition in the NHS (18) . It is the 2nd most efficient health care system in the developed
world, for all its imperfections. There is barely a jot of evidence that privatisation would improve
services or save money – and much evidence it would, and does, damage services and waste money
in both the short and long term. Those who push privatisation are fighting a battle based not on
evidence, but on an ideological commitment to a very different, and much more selfish kind of
society – one where profits come before patients. Their main weapons are secrecy and confusion,
and the line, “There is no alternative”. But there is, as we have found.
“The NHS will exist as long as there are folk left with the faith to fight for it.”
Nye Bevan, creator of the NHS
Written 12 November 2012 Caroline Molloy, for False Economy and reproduced with their
permission. For more information see http://www.stroudagainstcuts.co.uk,
http://www.keepglosnhspublic.posterous.com
Recommended resources
• False Economy – http://falseeconomy.org.uk/– Why cuts are the wrong cure
• Keep Our NHS Public – http://www.keepournhspublic.com/ – an excellent first port of call to see if
they know what is happening in your area, or have contacts. It costs £10 waged /£5 unwaged to join
and get on their mailing list, and if 5 of you join you can affiliate your group. The website has a huge
amount of resources though it isn’t that easy to navigate (KONP do a great job on a shoestring, and
could do with donations!). KONP also provide campaign materials & postcards (for a small charge)
which allow patients to register individually that they don’t want to be referred to a private provider.
• 38 degrees – http://www.38degrees.org.uktheir CCG guidance is easy to use though I would advise
strengthening the wording, which is quite cautious, to be more in line with the BMA-endorsed
version (see (3), and to have a much stronger commitment to considering NHS options and
consulting the public before any decision to tender is taken.
• Supply2health.nhs.uk – where upcoming NHS contracts are advertised – sometimes at quite an
early (pre-tendering) stage
• “In Place of Fear”, Nye Bevan, 2008 Edition – available from good bookshops and free if you join
the Nye Bevan Society http://www.nyebevan.org.uk/
• Sicko (film), Michael Moore, 2007 – we put on a screening as part of our campaign fund-raising
http://www.whatdotheyknow.com– you can make Freedom of Information requests direct to public
authorities, or (very simply) by using this site – and you can browse other users requests.
• Campaign for Freedom of Information – publish a short guide which is well worth reading before
submitting requests, to avoid common pitfalls http://www.cfoi.org.uk/pdf/foi_guide.pdf
• Register of interests of MPs – http://www.publications.parliament.uk/pa/cm/cmregmem.htm
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• Health Emergency – http://www.healthemergency.org.uk/– a wealth of advice and experience
from John Lister, who has been campaigning against NHS privatisation since the 80s.
• “The Plot Against the NHS”, Colin Leys, 2011 – readable & compulsive introduction to how we got
to this point. This more recent article by the author convincingly warns where we might go next, if
we don’t fight back http://www.redpepper.org.uk/the-end-of-the-nhs-as-we-know-it/
• Unison has produced an up to date guide to trying to use the new structures to block NHS
privatisation http://falseeconomy.org.uk/blog/unison-guide-how-campaigners-can-use-nhsstructures-
to-block-privatisation
• National Pensioners Convention – http://npcuk.org/contact them to find your local group
• UK UNCUT – http://www.ukuncut.org.uk/contact them to find your local group
http://www.twitter.com– a great way of networking/getting NHS-related news, and simpler than
Facebook! For some ideas of who to follow, see https://twitter.com/carolinejmolloy/nhs/
members
• NHS Vault – excellent critique of health policy developments http://nhsvault.blogspot.co.uk/
• A Better NHS – another very thoughtful site, written by a Hackney GP
http://abetternhs.wordpress.com
• NHS Consultants Association – http://www.nhsca.org.uk/a campaigning association of hospital
doctors, led by Clive Peedell, of ‘Bevan’s run’ fame, who has now set up the NHS Action Party to
stand candidates at the next general election
• The Green Benches – http://eoin-clarke.blogspot.co.uk/this site works to publicise where NHS
privatisation is happening or threatened, though it is best to use it for leads and then double check
facts and sources.
• NHS Supporters Federation campaign guide – http://www.nhscampaign.org/campaignactivity/
campaign-tools/new_campaign_guide/fed_campaign_guide.html– quite out of date now,
but lots of detailed tips on the practicalities of campaigning.
• National Coalition for Independent Action – http://www.independentaction.net/– speaking out
strongly against the way the ‘third sector’ is being co-opted into the big society
• Socialist Health Association – http://www.sochealth.co.uk/– if you are a Labour party member its
worth looking at this organisation. Some feel its leadership co-existed too happily with earlier
‘market reforms’ – but it is very open to debate.
• Find legislation here http://www.legislation.gov.uk/(for health acts etc)
• Friends of the Earth has produced guidance on taking Judicial Reviews which is helpful (though it
has an environmental focus) http://www.foe.co.uk/resource/guides/5_1_judicial_review.pdf
Notes
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1 http://www.pulsetoday.co.uk/gps-force-ministers-into-u-turn-over-any-qualifiedprovider/
13507827.article#.UJoUgm-etlk,
2 [CLIFFORD TO UPLOAD PDF LETTER]
3 http://www.whatdotheyknow.com/request/113046/response/286241/attach/
html/10/701443%20Geoffrey%20Clifton%20Brown.pdf.html
4 http://www.commissioningboard.nhs.uk/files/2012/09/procure-brief-2.pdf
5 http://web.bma.org.uk/nrezine.nsf/wd/RTHS-8TPCEW?OpenDocument&C=28+April+2012
6 http://www.corporatewatch.org/?lid=4251
7 http://socialinvestigations.blogspot.co.uk/2012/02/nhs-privatisation-compilation-of.html,
8 http://cheltenham-gloucesteragainstcuts.org/2012/05/04/two-gloucestershire-tory-mpsaccepted-
donations-from-controversial-super-rich-private-health-investor/
9 http://keepglosnhspublic.posterous.com/what-happens-if-nhs-staff-transfer-to-a-priva
10 http://www.tuc.org.uk/union/index.cfm?mins=54&minors=53&majorsubjectID=14
11 http://www.stroudnewsandjournal.co.uk/news/9600907.Campaigners_warn_of_
privatisation_threat_to_NHS/
12 http://www.stroudnewsandjournal.co.uk/news/9666306.NHS_campaigners_take_protest_
to_MP_s_door/r/?ref=rss
13 http://www.stroudnewsandjournal.co.uk/news/9616934.Stroud_Against_the_Cuts_attack_
MP_over_NHS_stance/http://www.stroudnewsandjournal.co.uk/news/9616934.Stroud_
Against_the_Cuts_attack_MP_over_NHS_stance/
14 http://keepglosnhspublic.posterous.com/what-the-health-unions-say-about-social-enter
15 http://www.guardian.co.uk/society/patrick-butler-cuts-blog/2011/sep/19/social-enterprise-bigsociety-
gets-reality-check
16 http://www.bbc.co.uk/news/uk-politics-13273932
17 http://www.guardian.co.uk/healthcare-network/2012/nov/12/william-wells-nhs-privatisation
18 http://cdn.yougov.com/cumulus_uploads/document/ly9ei68uye/YG-Archives-Pol-ST-results-10-
120212.pdf

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