In recent months, NHS campaigners and patients have had some success in using judicial reviews to halt – or at least slow – badly made decisions to privatise or cut services. In Manchester, the mental health trust is facing such a challenge on the grounds that it failed to carry out a proper equalities impact assessment. Failure to consider equalities or to adequately consult services’ users are the two most common grounds available to campaigners.
In Gloucestershire, a successful challenge was made in February on procurement law grounds, halting the transfer of nine community hospitals and 3,000 staff to a so-called ‘social enterprise’ – essentially a private company – without properly considering NHS options. David Lock QC argued that the primary care trust (PCT) commissioners could – and should – hand community health services over to an existing or new NHS trust, without needing to put them out to auction (tendering). It could not legally hand them quietly to a social enterprise.
The PCT crumbled, and signed a consent order agreeing to scrap its plans, consult and consider NHS options. Continuing pressure mounted by unions and local anti-cuts group Stroud Against the Cuts forced the government to concede that the PCT could, after all, create a standalone NHS trust, without tendering. 91 per cent of staff have just voted in favour of such a trust, though the final decision has yet to be taken.
The lesson from Gloucestershire is that auctioning off health services is not inevitable. Commissioners can exercise their discretion and transfer services to another part of the public sector without tender. Gloucestershire campaigners and staff were told that if they opposed social enterprise, tendering and full privatisation would be ‘almost inevitable’ (in the words of Neil Carmichael, Conservative MP for Stroud) – or there would be legal challenges by private companies. These threats turned out to be hollow, with the health minister Simon Burns finally admitting that if an NHS trust option is pursued, ‘there is no case for tendering... [and this] should not raise the risk of credible challenge under procurement law’.
This is not about making the NHS the ‘preferred bidder’; rather, it clarifies that a bidding process is not necessary, nor desirable. Even after the passage of the Health and Social Care Act, the ‘any qualified provider’ (AQP) regime that aims to open up services to competition does not (yet) have a strong statutory footing. Indeed, some London trusts have successfully resisted the moves to put services out to AQP. However, once services are out of the public sector, there is no going back. So while commitments to repeal the Act are important, campaigners cannot wait until a change of government to defend the NHS.
As decision-making power shifts to clinical commissioning groups (CCGs) in April 2013, standing up to the legalistic tub-thumping is critical. The latest example concerns the PFI contracts that – along with the £20 billion cuts required by NHS chief executive David Nicholson – are currently steering the NHS onto the financial rocks. If we are to save our NHS, we will need to call the privateers’ bluff; to say, ‘We are pulling out of this PFI contract – sue us if you dare.’ The PFI contracts are indefensible and in many cases have been breached by the contractors. Even if the contractors were prepared to risk the detail of the contracts being dragged through the courts, the results for staff and patients could hardly be worse than the closures currently in the pipeline.
Joining the resistance
So who is joining the fightback?
There are signs that unions are beginning to develop joint community/union campaigns – an agenda Unite in particular is embracing. The GMB, currently embroiled in battles with Carillion in Wiltshire, has been particularly outspoken on PFI of late. Meanwhile, angry Labour and indeed Lib Dem activists are gearing up for motions to their party conferences.
Fighting hospital closures, privatisations, and rationing, is electorally popular. The calculations are influenced by the new NHS Action Party, which is planning to stand 50 candidates at the next election. Cuts to A&E are being resisted as the first nail in the coffin for hospitals, notably at Trafford General.
Talk of ‘shifting care into the community’ is unrealistic, expensive, detrimental to care, and likely to lead to further privatisation. If Labour fails to admit past mistakes, and restricts itself to monitoring the damage done, its poll advantage will evaporate. Shadow health secretary Andy Burnham has admitted, ‘This problem child has at least joint parenthood.’ But the question is not who started the privatisation – it is who is going to stop it?
Working within the new structures, such as the health and wellbeing boards, can help us find out what is going on in time to stop it. But no one should be under the illusion that we can make these structures democratic – and the risk is they will suck energy, co-opt the articulate, and ignore those who are alienated by the consultant-speak. We can instead use existing rights to engage with elected representatives and our unions – and a more assertive use of freedom of information, challenging ‘commercial confidentiality’ on public interest grounds. One flash point is likely to be the 20 or so community health services currently temporarily housed in NHS trusts that will be up for review in the next year or so.
Other tactics can put pressure on commissioners – petitions, demonstrations (including the TUC protest on 20 October) and sit ins, such as the recent boardroom occupation of Camden PCT following the closure of a privatised GP surgery. Strikes are still on the agenda, and there is a link between pension cuts and the privatisation agenda. As Danny Alexander, chief secretary to the Treasury, has said, ‘The new pensions will be substantially more affordable to alternative providers.’
Patients can use Keep Our NHS Public’s cards to register their wish not to be referred to a private provider. And they can push doctors to adopt Health Emergency’s CCG pledge (committing to a transparent, patients-first approach) into their constitutions. Would the Department of Health really be prepared to have a public fight to prevent such a commitment?
Pressure on providers
Campaigners are also putting pressure on the providers themselves. The successful Boycott Workfare campaign shows how effective reputational damage can be. Activists have occupied Virgin stores, and organised protests at Sainsburys (now providing pharmacy services in two big London teaching hospitals), as well as targeting the more anonymous Serco. ‘We need to ask, “Do you really want these people running our healthcare?”’ says James Beecher, chair of Stroud Against the Cuts.
We now have a network of experienced campaigners nationwide, drawing in new organisations such as 38 Degrees, UK Uncut and the student association Medsin, as well as smaller groups such as Health Alarm and Axe the Act.
Jim Fagan of Hackney Keep Our NHS Public emphasises that ‘the tradition of struggle in the NHS dates back at least to the 1970s, when the Elizabeth Garrett Anderson hospital was occupied.’ He is organising relatives and unions in Chingford to defend a small long-term beds unit that is facing closure. ‘While some staff are in a state of shock,’ says Jim, ‘we have campaigners who see the wider strategy – the logic of privatisation starting with the bits they see as soft options, where they don’t expect to find much resistance.’
Part of the reason why much of the destruction of the NHS has gone unobserved, has been that ‘tough decisions have been pushed out to the periphery’, in the words of Clive Peedell of the NHS Consultants Association.
But social media helps activists see that we are all facing the same battles, and build links with campaigners on social care, welfare and disability rights, too, resisting the Trojan horses around ‘integration’ and ‘personalised budgets’ that could lead to means testing and insurance.
As the saying goes these days, ‘We are all in this together.’