Health reforms: a lawyers' heaven

3 Jun 11
Colin Talbot

We learnt last week that National Rail employs 600 lawyers. But this will look paltry compared to the numbers the NHS will need to employ in ten years’ time if the current plans are implemented

Back in the early 1990s I was living in London and my then GP was Dr John Dunwoody, ex husband of formidable Labour MP Gwyneth Dunwoody and himself a former Labour MP. John ran a singleton practice on the edge of Clapham Common.

I was visiting John as a patient just after the first wave of ‘market’ reforms of the NHS introduced by the then Conservative government. I was reminded of this last week when both David Cameron and Nick Clegg made speeches in which they extolled the virtues of ‘working for patients’ – they didn’t use the exact phrase, but that was the key sentiment.

The main 1992 reform was to create a ‘purchaser-provider’ split in the NHS. On the provider side would be NHS trusts – mostly based around a single large hospital, or in some cases two or three smaller ones. The main purchasers would be District Health Authorities (DHAs) and a small number of voluntary ‘GP fundholders’. This new ‘internal market’ would, it was claimed by the government, ‘improve patient choice’.

At the time I had been studying public policy, and ‘Working for Patients’ translated at the individual level into a wonderful example of ‘unintended consequences’, which John and I experienced first hand.

I needed some specialist treatment, and John was going to refer me to a central London teaching hospital. In the past, he’d have just discussed it with me and made a choice.

But now, with the purchaser-provider split and contracts in place, life was more complicated. He could only refer me to a hospital with which our DHA had a contract, which turned out to be a very limited number. We could get what was called an ‘extra contractual referral’ (ECR) if John made a case to the DHA, but the whole process was a lot more complicated and slow. In the end, we did just that but the effect of ‘Working for Patients’ turned out to be ‘working to contract’, not improved choice.

What made me recall this incident last week was the juxtaposition of the ‘working for patients’ rhetoric of Cameron and Clegg with the stories about our wonderful privatised rail system, or ‘working for passengers’.

We learnt last week that National Rail employs 600 lawyers – this supplements the widely quoted figure of some 20,000 legal contracts between the national rail provider, twenty-odd train companies and numerous sub-contractors, running stock providers, etc. And this is a relatively simple system compared to what we’d have in the NHS if Andrew Lansley’s proposals go through in their current form.

So, back to my ‘participant observation’ report on being the patient for whom the NHS should be working.

The essence of the argument put forward by Lansley & Co. is that GPs are best placed to ‘work for patients’ and translate this, via purchasing, into the correct structuring of the NHS.

So let’s start with the GP-patient relationship. John Dunwoody was unusual as a GP – he had been a junior Labour minister in the Department for Health (1969-70) so he had a pretty good grasp of how the system worked. Even more unusually, he was actually interested in how it worked. And he was a very good doctor from a patient’s perspective – he took his time and listened.

This was – and I’d argue is – an unusual combination. My observation is that usually the more ‘patient oriented’ a GP is the less s/he is interested in the machinery of the NHS. My current GP is just such a doctor. He is great with patients, taking his time to listen and work with you. But he’s almost completely disinterested in the business-side of things. He’s part of a GP consortium that has been in existence for several years already, and when I asked him about it he said he was not really involved and “just did what he was told”.

Conversely, in my experience most GPs who are interested in ‘the business’ are also those that are most ‘efficient’ and ‘business-like’ with their patients – i.e. you are in and out as quickly as possible and with the least possible discussion or dispensing. Yet it is these GPs who are most likely to end up running the commissioning system.

And from these shaky assumptions about GPs relationships to patients we have to go through several organisational layers to get to GP commissioning. My GP is part of a group practice, which in turn would be part of a consortium and even possibly a consortium of consortia. At each level we are meant to assume that ‘the best interests of patients’ will be expressed.

And that is before the unintended consequences kick-in. The early 1990s NHS internal market, or the railways lawyers’ heaven, would look positively simple compared to the plethora of organisations and labyrinth of contracts we’ll see if the current plans are enacted.

And we don’t even have to imagine – just look across the Atlantic to see how much of US health spending (double ours in GDP terms) is absorbed in ‘transaction costs’. I confidently predict that National Rail’s 600 lawyers will look paltry by comparison to the numbers the NHS would be employing in ten years’ time. All ‘working for patients’, of course.

This post first appeared on Whitehall Watch

Did you enjoy this article?