I can’t find a way of giving a link to this information in my legal service: look at my listing of useful legal services to gain access

http://coknown.com/project/1006

or, if you read Italian, try the website for Garante:

http://www.garanteprivacy.it/garante/navig/jsp/index.jsp?solotesto=N

The fly in the syringe driver, I had to point out, is that the boundary is actually a seriously legal one. People in healthcare tend to assume that all care is free and don’t think about the limits on what they provide. But of course social care is not; the local authority is obliged to charge for it.  So what happens when we are providing palliative care (free) and social care (not free) and the local authority decides it is going to tighten its criteria and provide less social care, whereas we think more is needed? The boundary between the two will not be about applying for continuing care or community care funding and waiting for the officials to differentiate. Increasingly, the decision will be made by our home care staff on the ground as they work out what the boundary is between one indistinct caring job and the next. And this is going to turn increasingly nasty, I fancy.

That is why it is worth reading an interesting report from the Nuffield Foundation, which discusses whether there should be an agreed ‘national benefits package’ for the NHS, that is, a list of things the NHS will provide, and by implication a list of things the NHS will not provide. They argue against doing this, but obviously some steps towards it are necessary, because decisions under the new Health and Social Care Act are going to be much more localised, and so what is available is likely to vary more. With competition, there is going to be a demand for greater clarity.

One of the assets of this study is that it compares the position very informatively with what they do in other countries, so you can see what different countries have decided to about what healthcare they are going to guarantee to provide and what not.

And it presents a useful way forward. The most practical course seems to be to list the things that will not be provided: this is the easy thing to do. On the other hand it is quite difficult to guarantee that you are going to provide all that might be desirable. People’s positions are infinitely variable and the healthcare world changing regularly. So, the next move is to decide what kind of staffing and other resource is required to meet the NICE guideline: we would then be aware when a local commissioning group is trying to skimp too much.

Then people are going to be ‘nudged’ in the direction of what NICE says is the most efficient and cost effective care. This idea uses David Cameron’s favourite over-simplified book on economics. Unfortunately, there is no evidence that ‘nudging’ works in the economic market, so what I suspect we are going to see is a lot of vicious rationing and attempts to get slices of the action from various private providers using various dubious claims of economy and efficiency that will not hold up in the long term (in just the same way that I see the government is looking at ways of making the cost implications of old PFI contracts for capital projects of ten to fifteen years ago more affordable – since they clearly are not affordable, this is going to be a bit of a problem for them).

Fascinating stuff; and since we’re thinking about it in healhtcare, why not a serious discussion about a benefits package in social care. The Law Commission, looking at adult social care law, suggested this would be too inflexible. I can hear the government (any government) agree with them – they want to be able to ration the increasing demand for increasingly expensive care without anyone being too clear what should be on offer. there’s trouble in store.

You can find the report on the web here: http://www.nuffieldtrust.org.uk/sites/files/nuffield/publication/rationing_health_care_240212_0.pdf

The citation: Rumbold, B., Alakeson, V. and Smith. P. C. (2012) Rationing health care. London: Nuffield Trust.

You can see the site on the web here: http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5415&site_id=494&detail=yes#page=1

Among other provisions, the Act has implemented a number of significant competition and regulatory changes. The current Independent Regulator of National Health Service (”NHS”) Foundations is to be renamed Monitor. Monitor will have additional competition oversight and will be required to exercise its functions with a view to preventing anti-competitive behavior in the provision of health care services for the purposes of the NHS which is against the interests of people who use such services.

In relation to the provision of health care services in England, Monitor will have concurrent functions with the Office of Fair Trading (”OFT”) to:

• enforce the prohibition on anti-competitive agreements and abuse of a dominant position (Chapter I and Chapter II of the Competition Act 1998 and Articles 101 and 102 of the Treaty on the Functioning of the European Union); and
• carry out market investigations of the healthcare sector under Part 4 of the Enterprise Act 2002

In order to do that, the Office of Fair Trading had to carry out a market study of the private healthcare market, which provides a very detailed account of how the market works and what the problems are. If you want to comment on, criticise or support private healthcare, here is a golden amount of official information, and some nice diagrams. So I thought you’d want the reference.

Office of Fair Trading (2012) Private Healthcare Market Study: Report on the market study and final decision to make a market investigation reference. London: OFT

The Report on the web here: http://www.oft.gov.uk/shared_oft/market-studies/OFT1412.pdf

As an example of the sort of stuff that’s here, this is a graph of different sources of private hospital funding. Of course, the main source is private medical insurance (PMI) but look at the funding from the NHS. This has been rising over the period covered, 2004-10, while insurance-funded treatment and people paying for themselves has been declining. Did the chicken or the egg come first? Have private hospitals gone after NHS funding becuase their market was otherwise declining? Or did increasing funding of the NHS mean that people stopped using private insurance and self-pay?

The bit that I found interesting and new to me was the process by which local NHS hospitals and local private hospitals ‘partner’. The study seems to say that some of these arrangements may give advantages to the private hospital in competition.

All of which continues to suggest that a close watch on competition regulation may be a good way of finding out the unfair wrinkles that will affect the new NHS. Local people might want to ask about what partner arrangements exist in their area, and what the benefits are for private hospitals. You can bet there will be some, because otherwise they wouldn’t agree the the contracts. The question is, does the local deal also benefit NHS patients?

Anyway, there’s a news item about Li Ch’in, a Chinese entrepreneur who is supposed to be earning a fortune providing mourners to sob at the graves of loved ones, if you don’t have time to visit. ‘My staff are very skilled wailers…I teach them how to cry, wail and sob at the drop of a hat…’

Who’s going to pick this up for inhibited Britain?

You can get the alert from a law firm on this topic here: http://www.kslaw.com/imageserver/KSPublic/library/publication/ca040512.pdf#page=1

The Office for Fair Trading has referred the private healthcare industry to the Competition Commission for investigation, and there is a consultation – you have about a month to reply.

The report starts:

The private healthcare market was valued at £5 billion in 2009 and is expected to grow in line with an ageing UK population and a consequent growth in the demand for healthcare provision.

And, you might add, because the government seems intent on having more private provision as part of the NHS. One of the ways of testing that intention out, as I said yesterday, is by using competition regulation to check that they are doing business in ways that benefit the public, not their own financial interests.

So what are the OFT’s concerns?

First, existing biggies in the market make it difficult for new providers to start up. So all those charities and social enterprises hoping to play a part in their local markets are likely to be kiboshed by the big providers making it tough for them.

Second there is no comparable information for patients and their GPs about how good or economic they are. We’ve spent years trying to get the NHS to ante up information about the efficiency and quality of our local hospitals, now it seems we’ll have to start all over again getting the private providers to disgorge information about how well they’re doing.

Third, there are only a few significant players in the market and the few national providers (the BUPAs etc.) might have too much power in the market because there is very little realistic choice. The reason is the same as the Dutch problem I looked at yesterday: most patients want local provision; if there is no choice in local provision, there is no choice.

Also there is the problem of ’shortfall’ payments. This is where your friendly profit-making consultant doctor wants to do things that the insurer won’t pay for, so they zap you with a bill afterwards for the extras. But they don’t tell you in advance. If you have a plumber, they have to give you an estimate and stick by it. Not private sector doctors apparently.

These are some of the OFT’s recommendations:

A commitment by private healthcare providers to publish clear, accessible and comparable quality information.

The development of a ‘choice-tool’ for private patients by which self-pay prices could be better compared between rival facilities.

A recommendation to NHS Trusts or the Department of Health that certain partnership arrangements should not be undertaken with a private healthcare provider that has more than a certain share of the local market, or be subject to establishing certain conditions of access.

A ban on agreements between private healthcare providers and private medical insurers that concern the recognition of new, rival facilities.

All eminently reasonable – so much so, you wonder how they’ve been allowed to get away with it. People who are concerned with how the NHS may be affected by how the private sector operates need to look at competition regulation very carefully. Since very few people used private providers in the past, nobody bothered too much about how they operated. In future, we must all take a much closer look at this, and turn up the heat to make sure these people behave properly for the benefit of patients.

The article here: http://www.guardian.co.uk/society/2012/apr/10/older-person-had-it-good

It’s a small bit of it that caught my eye:

How far do people think that volunteering or simply having a hospice in the area is insurance for getting good care at the end of life? And is it true? Has anyone ever surveyed hospice volunteers to find out?

It might be. After all, if they know you, they’ll probably be sympathetic. And if you know them, you know what to ask for. It’s a characteristic of knowing how to work the system.

The report here (towards the end of this newsletter): http://www.debrauw.com/News/LegalAlerts/Documents/Competition/Competition%20Newsletter%20-%20March%202012.pdf If you go down to the citations, you can see links to the original Dutch regulator news releases. Some of these are in English.

NMa, the Dutch competition regulator, blocked the planned merger between two healthcare providers (in this case of nursing homes) because they were local competitors and the evidence was that for this service people wanted a local service; they didn’t want to travel far. So by merging, the nursing homes would have restricted the choice of patients.

The regulator has four main rules for judging healthcare provision, stated to be:

(i)            transparency of the quality of the healthcare,

(ii)           clients’ travel behaviour,

(iii)          potential entry of new healthcare providers and

(iv)          health insurers’ impact on the choices clients make.

The merger would thus have affected the quality of healthcare services since the two healthcare providers would no longer have been stimulated to differentiate themselves from each other through e.g. innovation.

The second part of the document discusses merger decisions by NMa (which is soon to merge with two other regulators – regulator merger disease has been bad for CQC in England – it’s sad to see the Dutch following the same process). In one case, being notified of a possible merger, NMa stopped it:

…the NMa carried out an investigation, looking into, among other aspects, to which hospital patients currently travel to, and what the weighted average travel time is to other hospitals in the vicinity of Tilburg. This investigation revealed that the majority of patients from the greater Tilburg area (for outpatient and inpatient care) go to the hospitals of the concerned parties. Since the concerned parties primarily compete with each other, and since competitive pressure from other hospitals is less intense, the proposed merger was provisionally blocked by the NMa.

In two separate opinions, the Dutch Healthcare Authority (NZa) stated it shared the NMa’s view that both mergers may negatively affect accessibility, affordability, and quality of nursing home care in the region of Veluwe, and of hospital care in the greater Tilburg area.

Then the press release looks at the longer term record of decisions about mergers:

Since 2004, the NMa has taken more than 150 decisions with regard to concentration assessments in the Dutch health care industry…When reviewing concentrations, the NMa aims to safeguard the quality and efficiency of health care by preserving health care options of patients.

You have to wonder about these statements. Is it true that competition is required to stimulate ‘innovation’ in healthcare? And is it true that preserving the options of patients is an important factor in healthcare ‘quality’? Possibly innovation in management may come from competition, but that might mainly be innovation in cost-saving. Innovation in quality of service will mainly come from the professional qualities of staff and possibly the stimulation of being part of a critical mass of colleagues. Generally, innovation in palliative care has come from larger hospices that have the flexibility and resources to try something new. A small healhtcare provider such as a hospice or care home may well come up with something new, but to develop, research and generalise a clever idea usually requires size and critical reflexiveness in the people working on the innovation.

But it is good to see that competition regulation can (and perhaps should) start from the patterns of actual behaviour of patients, rather than the wishes of the private providers. In the coming competitive NHS, looking at competition regulation and the policies it operates by may become an important way of preserving important aspects of a local NHS.