Health Policy and Politics

Alison Hann

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317123309
• Edition: 1
• Topic: Medicine
• Subtopic: Health Care Delivery

What is the relationship between politics and health policy in the UK? How are the interests of the medical profession, civil society and the state weighed and balanced in the making of health policy? Health Policy and Politics offers a sophisticated critical analysis of policy-making in the National Health Service. The team of contributors comprises established academics who have been actively involved in both research and policy-making in this field. They examine the 'macro' level of policy-making at governmental level, and then consider professional institutional relationships and struggles, and interpersonal decision-making and power relations within small organizations and departments. Unique in the variety of perspectives and topics covered, the volume will be required reading for those teaching and studying on a range of courses in health, social care and public policy, and for health professionals within the NHS.

Chapter 1
The Impact of the European Union on the NHS1

Nick Boyd

This chapter examines, from a UK Government perspective, the impact of developments in the European Union on the UK health service (the NHS). It examines UK Government policy to date on the role of the EU in health services and how various drivers in recent years have influenced and refined that policy position.

Existing UK Policy

The Labour administration which came to power in 1997 was committed to signing the social chapter of the European Treaty, and participating fully in the debates on social developments in Europe. As far as health services were concerned, however, it reconfirmed the position held by previous administrations that the organisation and delivery of health services was a member state responsibility: the Union had no competence to intervene in this area. During negotiations on the Amsterdam Treaty of 1998, the UK backed a specific reference in Article 152 of the new Treaty – in the public health chapter – which read:

Community action in the field of public health shall fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care.

At the same time, the Government acknowledged that, while responsibility for the organisation and delivery of health care services needed to be retained at national level, there were some public health issues on which action at European level was needed in order to protect and improve the health of citizens of its Member States. Indeed, there were already powers in the Treaty of Maastricht for the Union to take supportive measures in the field of public health – which led to the public health programmes of the 1990s – and the Government also supported Commission initiatives to use single market powers in certain areas, such as tobacco control, to take legislative measures.

Drivers for Change

The years that followed implementation of the Amsterdam Treaty saw several drivers which affected this policy position.

The strengthening of public health powers in the Treaty raised questions about the grey area between ‘public health measures’ where the Union had new legislative powers – for example on the safety of blood, tissues and cells – and ‘health service interventions’ where it had no competence. In other words, it had competence to legislate on standards of safety in the procurement and transport of blood, but not on how it was used in clinical interventions.

Proposals for the new Constitutional Treaty (proposed Article 179(4)(d)) would have further strengthened these public health powers – particularly in the area of communicable disease prevention and control – no doubt giving rise to similar questions.

Discussions on social protection in the EU have developed in new directions, too. Whereas in earlier years, their focus had been on labour market policies and employment protection, they came to embrace pensions policy and social exclusion, too. The European Council decided to add to these three existing arms of social protection work the need for sustainable, accessible and quality health services. Since 2001-2 this latter field has been subjected to the ‘Open Method of Coordination’ process – a structured system of discussion between Commission and Member States to exchange best practice, and in some cases set objectives and carry out peer review and benchmarking.

Perhaps the most powerful driver for policy change has been the further development of the single market and the application of its rules to health service. It has always been the case that health services in Member States are directly influenced in one way or another by EU legislation, much of it based on internal market provisions in the Treaties. Since the 1970s there has for example been legislation to regulate licensing procedures for pharmaceutical products and, to a lesser extent, medical devices; and legislation on the mutual recognition of professional qualifications, including for doctors and nurses. Health and Safety provisions apply to the NHS workforce as to any other (e.g. the Working Time Directive). Similarly, the NHS must observe EU Directives on procurement.

However, from 1999 onwards there have been a series of highly influential decisions from the European Court of Justice establishing caselaw which applies internal market rules to the provision of, and access to, health services. These cases (e.g. Kohll and Dekker (1998); Smit-Geraets and Peerbooms (2001); Müller-Fauré and van Riet (2003) and others) arose often from referrals from Courts in member states considering complaints from individuals about the refusal of their sickness fund to reimburse treatment they had, without prior authorisation from their fund, sought in another EU member state. In some cases this was because the individual concerned could not access the treatment they wanted at home without waiting; in others, because the treatment was not available in their home country, or they found it more convenient to have it abroad.

Through these cases, the Court established several important principles. Some of the key ones were:

• EU single market rules do apply to health services, whether publicly or privately provided;

• The requirement for prior authorisation by a funder of health services to treatment abroad is an obstacle to the free movement of services, and thus in conflict with single market rules;

• There are however legitimate considerations to bear in mind when applying single market rules to health services – for example the need for Member States to plan hospital provision and to run their own social security systems: they can legitimately refuse to take action which would make such planning impossible or undermine the financial stability of their health system;

• A requirement for an individual to seek prior authorisation before going abroad for hospital treatment can be justified, but authorisation can only be refused in certain conditions. These include that the treatment in question is not part of the home member state’s package; and that it can be provided in the home member state ‘without undue delay’. There are others.

Although these cases all arose in the context of countries with social insurance systems, the ECJ confirmed in its decision on a case relating to the UK NHS (Mrs Watts) in 2006 that its caselaw applies to tax-based systems such as the NHS as well.

The significance of this caselaw is that it establishes that the Commission does have competence to propose measures, based on internal market provisions in the Treaty, concerned with ensuring freedom to provide health services across the EU, and the conditions under which European citizens can gain access to those services. In its original proposals in 2004 for a general Services Directive, the Commission did in fact include provisions relating to provision of and access to health services. The Council and the European Parliament did not believe that a general Directive applying to a wide range of services was an appropriate vehicle for dealing with sensitive and complex health service issues, and this part of the Directive was dropped. However, the Commission subsequently announced plans for separate health service-specific legislation, and their proposals for such legislation is expected in 2007. This is likely to cover the kinds of issues raised by the caselaw of the ECJ.

Enlargement

It is still too early to assess the full impact of the enlargement of the EU in 2004, but it is likely that this, too, will bring new perspectives regarding the role of the EU in health service policy. The 10 new member states represented the single largest expansion the EU had experienced, and created a new dynamic. The wealth gap between poorest and richest States was widened. The proportion of small to large Member States also grew significantly. In the original EU 15 there were 4 countries with a population of less than 6 million. In EU 25 there are 11. Many of these countries have relatively underdeveloped health service infrastructures, and also relatively weak health Ministries within Government. It is possible that they will look more actively to the Commission, and to the EU for support in capacity building in health services (for example on health technology assessment). Although they will be careful to safeguard their own policy control and guard against cost pressures arising from European actions, they may not have the same cautious attitude to EU active involvement in health service policy as some of the older Member States have traditionally had.

Conclusion

Taken together, these developments have created a new and different context for Member States to develop their thinking on the role of the EU in health services policy. There remains widespread acknowledgement in the Institutions of the EU that Member States are responsible for the organisation and delivery of health services, but the debate about how this responsibility relates to competences the EU has in the internal market and other areas is one in which all parties are now fully engaged.

1 Presentation to a colloquium of the Politics of Health Group, Merton College, Oxford, 9 September 2005.

Chapter 2
The Politics of NHS Deficits and NHS Re-form

Calum Paton

The perplexing question about the (English) NHS at the end of 2006, which would strike the proverbial ‘Man from Mars’, is how it has seen what New Labour likes to call ‘record investment’ (actually expenditure, as investment is mostly private) yet a major structural problem with record deficits. This question is indeed perplexing not only to a putative Man from Mars but also to the Prime Minister and New Labour Health Ministers; to senior managers and clinicians; and (of course) to the long-suffering, much spun-upon NHS staff and English public. For the scale of the deficit as Financial Year 2005–2006 progressed was a major surprise on an increasing scale as it was reported ‘up the line’ from individual Trusts, to Strategic Health Authorities, to the Department of Health management team, to health Ministers and finally to the Prime Minister.

The deficit across NHS hospital Trusts and Primary Care Trusts (PCTs) in England for 2005–2006 was c. £1.2 billion (although the government in the end artificially reduced the figure to c. £550,000 by ‘raiding’ education, training, public health and mental health budgets – thus committing the cardinal sin of ‘brokerage to hide deficits’ for which it was simultaneously berating the NHS). The reason it was a surprise of increasing size as the news was reported ‘up the line’ was primarily because of the cultural politics of the NHS.

A Very British (Pre-) Stalinism

This culture can be summed up in the memorable phrase from across the Atlantic, ‘kiss up, kick down.’ NHS Trust bosses are nervous of reporting deficits and seek to under-report until it’s too late. Apparatchiks at Strategic Health Authorities (SHAs), primarily Chairs, Chief Executives and Directors of Finance, do what apparatchiks do – seek to please their superiors in the short term and shift blame ‘down the line’ in the longer line when the former (lack of) strategy unravels. For example, in the Shropshire and Staffordshire Health Authority, half-way through the financial year, the SHA was reporting ‘break-even’. In the end, the SHA-wide deficit was c. £60 million.

The NHS Chief Executive and his management team at the Department of Health are nervous of Ministers such as Alan Milburn (Health Secretary from 1999 to 2003) and John Reid (Health Secretary from 2003 to 2005) with a reputation for what we might call the robust approach - and so fail to tell the Emperor that he has no clothes, or that at least his clothes are looking threadbare. This left the successor Secretary of State who inherited the problem, Patricia Hewitt, open to ridicule when the tactic of denial (of deficits and pending knee-jerk job cuts proposed by ‘macho managers’ seeking to use crisis to ‘kiss up’) was undermined by the facts unravelling in the media (which cannot be blamed, in this case, for reporting reality). From The Guardian to The Daily Telegraph, she was accused (respectively) of scapegoating (Paton, 2006a) and of sailing through the NHS’s ‘Potemkin hospitals’ (Daily Telegraph, 2006) like Catherine the Great viewing the facades of idyllic riverbank villages, oblivious to the truth behind the facades assembled by apparatchiks.

The time-dishonoured tactic of Ministerial head-in-the-sand applied: first, deny that the problem exists; then deny the problem is a large one; then assert that, where deficits are large, they are purely local and caused by bad local management; then, when this unravels, claim that Ministers were not apprised of the real situation (hence one of the reasons for the ‘resignation’ of the NHS Chief Executive and Department of Health Permanent Secretary Sir Nigel Crisp in March 2006, as the end of the financial year loomed); then – when, on reflection, Ministerial ignorance would (rightly) seem incompetent – claim that 2005-6 was a ‘one-off’ and indeed a consequence of the government’s reform programme ‘flushing out’ historical problems. Well, up to a point, Lord Copper. The problem for the government was that the ‘historical problems’ were of recent vintage, and largely down to New Labour’s amateurish zeal in policy-making causing financial anarchy in the English NHS.

Quis Custodes Custodiet?

So how did a creditable record on NHS expenditure after 2002, following the recommendations of the Chancellor’s appointed advisor, Derek Wanless, come to co-exist with record deficits? It is fair to say that the analysis carried out so far has been incomplete. Independent but ‘insider’ commentators such as the (statutory) Audit Commission and the (non-statutory) King’s Fund, parliamentary inquiries such as that by the Health Select Committee of the House of Commons (2006) and pro-market think-tanks such as Reform have emphasised (respectively) technical factors, short-term factors and ideologically-rooted explanations.

Of the above, the King’s Fund published easily the best explanation for the deficit crisis (Palmer, 2006), but Palmer’s paper sought the solution in ‘strategic commissioning’, more technically competent tariffs for paying providers and clearer system regulation. Of these, the first was the old, old story (see below) and the third presents a ‘rational’ case for better regulation and/or management of the market which is unimpeachable on its own terms but exclusive of the main political dynamic of the NHS – a ‘garbage can’ approach to policy initiatives (Paton, 2006).

The Audit Commission bars itself from political analysis (and in any case builds its national analysis from local investigations – regular annual audits and Public Interest Reports - by accountants whose technical skills are generally in inverse proportion to their understanding of the budgetary politics of the NHS). The King’s Fund’s analysis, as just suggested, might be described as ‘necessary but not sufficient’ – good as far as it goes. The Commons Select Committee, in 2006, has borne the hallmark of many such committees – enough government quasi-loyalists (the disappointed and the dispossessed, from New Labour’s ranks, yes, but not out-and-out rebels) to tone down radical criticism of the Executive, with awareness of electoral politics leading to an eschewal of comments which could form (in this case) Tory soundbites.

Think-tanks such as Reform and Civitas (incorporating the Institute of Economic Affairs’ former Health Unit) have sought the answer in privatisation (of one sort or another) irrespective of the question. They have seen deficits as a problem of public sector productivity per se i.e. the fault of the public sector rather than of political initiatives foisted on the public sector which create contradictory objectives and lower productivity.

Inadequate Policy Levers … or Contradictory Policies

The conventional analysis refers euphemistically to ‘inadequate policy levers’ (Palmer, 2006). This holds out the prospect of all good men and true refining the system in response to evidence. Instead, I would argue that it is contradictory policies which are at fault, and that they have their origin in the politics (Paton, 2006). Furthermore, even assuming a quasi-rational policy process, there is no evidence that ‘improved commissioning’ within a market NHS, as opposed to proper service planning, will get round the problems. I explore the former point now, and the latter point later in this chapter.

Let us consider tacit policy contradictions in as concrete a way as possible. For example, targets may be worthwhile in principle (or in moderation) but expensive at the margin. A classic example was the ‘98 per cent A and E target’, mandating that 98 per cent of patients who arrive at Accident and Emergency in hospitals must be admitted, treated or discharged within four hours of arrival (or four and one-quarter hours of the ambulance arriving at the hospital i.e. the ‘clock starts’ soon after the ambulance arrival whether or not the patient stays in the ambulance while awaiting admission or not … to prevent the perverse incentive of ‘ambulance blocking’ to prevent the clock being started … Such was the NHS in 2005–2006!)

Subjectively, the target per se was good – it focussed the managerial mind wonderfully upon the type of wait which is genuinely distressing to patients and families. Yet ‘ratcheting it up’ from 94 per cent to 98 per cent (one of Health Secretary Alan Milburn’s last gifts to the NHS) meant that a lot of money had to be spent in many Trusts ‘at the margin’ (preventing relatively few ‘breaches’ of the target) which could have been spent to much greater effect in terms of overall hospital ‘productivity.’

Now if politicians want to say, ‘we want to diminish overall productivity in order to pursue a hallowed objective’, then let them – there is nothing incoherent about that, and it is even more politically acceptable if they are accountable in some way for the decision. (It’s what Prime Minist...

Table of contents

• Cover Page
• Dedication
• Title Page
• Copyright Page
• Contents
• List of Figures and Tables
• Notes on Contributors
• Acknowledgements
• Introduction
• 1 The Impact of the European Union on the NHS
• 2 The Politics of NHS Deficits and NHS Re-form
• 3 Analysing Health Services Decentralisation in the UK
• 4 Modernising Health Policy Making
• 5 Consumerism in Health Policy: Where Did it Come From and How Can it Work?
• 6 Choice, Voice and the Structures of Accountability in the New NHS
• 7 Fixing Legitimacy? The Case of NICE and the National Health Service
• 8 Nothing New under the Sun? Regimes of Public Representation in the English National Health Service: Past, Present and Future
• 9 Two Cheers for Public Health
• 10 Taking the Wait Off: An Examination of the Influence of Policy Networks in a Case where Local Policy was Formulated and Implemented, to Reduce Protracted Waiting for Orthopaedic Services
• 11 Sleepwalking to Diversity?
• 12 Politics, Ethics and Evidence: Immunisation and Public Health Policy
• 13 Pharmaceutical Policy in the UK
• 14 The New General Practice Contract and Reform of Primary Care in the UK
• Index