NHS competition regulator Monitor inadequately tries to show that competition and coordination go together

Coordinating NHS and social services has been a policy and practice for decades, arising because if you coordinate everything into one organisation, you get an oversized blob. In any case, social services and the NHS have to be separated in some way, because the government would otherwise be forced by the political obligation to  provide health care to extend that to free social services, and they’re never going to do that. (You ask: why? Partly because of the cost but mainly because social care helps people with the problems of everyday living, not something exceptional and definable like an illness, and government doesn’t want to pay for what people would normally do for themselves, like getting up, getting bathed and getting fed).

Monitor, the NHS regulator which is supposed to ensure that competition works, is issuing a lot of guidance about coordination. The political reason for this is that they need to show that the competitive market that they promote does not prevent coordination. To do this, they have latched onto the idea of personalisation, or person-centred services: the idea is that services slot together around people’s needs, so they naturally coordinate.

So in its requirements of providers (a sort of contract that NHS providers are supposed to adhere to), it has an integrated care condition:

The Integrated Care Condition states that NHS provider licence holders should not do anything that could reasonably be regarded as detrimental to enabling integrated care. It also includes a patient interest test which means that the obligations only apply to the extent that they are in the interests of people who use healthcare services.

The problem is that the aim of removing barriers to coordination does not actively make it possible, and what NHS providers do is not the major barrier – lack of resources and options in service provision is. But the requirement not to do anything to the detriment of coordination provides a potential protest and advocacy point for people who want to change something that an NHS provider is doing.

Link to the Monitor Guidance, which also has lots of useful links to other documents on integration.

Accepting the risks of people living in their own homes – a Court of Protection case

Any social worker with older people will have experienced the situation where the extent of care someone needs makes them unhappy: nobody likes to be dependent, and often people have to put up with it. But this is also sometimes about the end of life. It’s not possible to work in end-of-life care for long without coming across someone who wants to go home, but is putting themselves at risk by doing so, because their care cannot adequately be provided at home. The professionals often react to this by refusing to accept the risks. A Court of Protection case looked at a deprivation of liberty case that raises some of these issues.

The case was unusual in that M, a woman of 67 years, was only considered not to have mental capacity in relation to her diabetes care; she was fine in other aspects of her life. There was a record of her going home, not managing her diabetes properly and having to be expensively re-admitted to hospital. The CCG (clinical commissioning group) paying for her care would not fund 24 hour care at home,which would probably be too intrusive for M anyway, and regular nurse and carer visits were not enough to make sure she kept to her regime, so they were paying for her to be in a care home, where her condition and diabetes management had improved. But M found this particularly unpleasant, being a private person who disliked a communal lifestyle. Many of the other residents were much older and had dementia – not attractive company for a youngish woman. She also had a partner who supported her, but was not living full-time with her and could not provide for all her care needs. It seemed she was being deprived of her liberty simply to keep her alive for as long as possible. One of the witnesses said: ‘…at the care home there is almost complete certainty of physical safety at the cost of the happiness of M’ (para 32).

The decision was about the balance of risks: should she put up with a unwanted lifestyle simply in order to have her life preserved? The judge’s conclusion is:

In M’s case there is little to be said for a solution that attempts, without any guarantee of success, to preserve for her a daily life without meaning or happiness and which she, with some justification, regards as insupportable (para 38).

So he allowed some time for arrangements to be made and then withdrew authority for the deprivation of liberty order.

The judge makes the point (at para 41) that he accepts that the court should take responsibility for such decisions rather than the professionals, whose duty of care means that they should not have to make this judgement. I’m afraid I’m a bit more critical of the professionals. What is a care professional for, but to help service users balance their various needs? One of the lacks in this case seems to me to be a social work perspective which sees people holistically, not as patients having services delivered, but as human beings living a social life with relationships that are important in themselves, and whose preferences for the kind of life they want to lead having an important place in the decision-making. Also, I can’t help imagining that the CCG was not wanting a return home because it would have to pay the expenses for re-stabilising her care in hospital again if the return home failed – the care home was the cheap option. Perhaps improving the quality of care and the relationships between its staff and M and her partner was too much like expensive hard work.

The judge also commented how good it was that the judge at first instance – this was an appeal – had visited M at the care home and listened to her views. He said:

The visit has therefore had the dual purpose of informing the court of M’s views and of making M feel connected to the proceedings without putting her into the stressful position of having to come to court in person. I commend this as an approach that may be of value in other cases of this kind (para 42).

So let’s have no nonsense about courts not stirring from their imposing buildings and going out into the real world.

Link to a legal commentary. This lists the law firm’s newsletters; scroll down and click on: Mental Capacity Law Newsletter – December 2013 mc_law_newsletter_december_20132.pdf

Link to the report of the court case.

Tips for voluntary organisations dealing with NHS and social care commissioners

A legal advice newsletter points out that with voluntary organisations increasingly being commissioned to provide NHS and social care services, they are also increasingly being asked for loads of information, but also need to be supported in doing so. You have to ask, as ministers in Parliament do when asked questions by MPs, whether the cost of collecting the data is justified. If it’s a real drag on service provision, and/or the commissioner won’t pay adequate admin costs, the voluntary organisation should seriously consider saying ‘no’ or ‘pay us for it’. Here are the points the newletter suggests a volorg should consider:

• The time involved in giving this support. Smaller organisations in particular need to ensure costs are covered.
• Organisations need to ensure any information they provide is not used out of context or in any way that could damage their reputation.
• Confidentiality – if the information is not in the public domain, does your organisation have the right to pass it on?
• Data protection – take care in passing personal data to commissioners as you will need to meet your data protection obligations.

I’ve often thought that voluntary organisations are naive about whether the local NHS or social care administration is on their side: my answer is that of course friendly relationships are necessary, but they also need to accept that volorgs take a business-like approach to  the relationships. Commissioners often think that because they’re paying the volorg staff are inferior in some way and should be expected to jump around doing whatever they decide. Good relationships work from both ends of commissioning; the volorg is not a supplicant, but an equal professional partner in providing a service. The article sees supporting the commissioning relationship as an important role for the commissioner.

Link to the original article on commissioning support

 

Competition to provide healthcare in the USA and UK

Curious readers who are interested in finding out about how the Obama changes in the American healthcare system are going might like to read this newsletter from an American ‘elderlaw’ firm:

Link to Elderlaw Newsletter.

The changes come into effect soon, in January 2014, and will mean that there will be local ‘marketplaces’ for health insurance.

This is all the more interesting in the UK, because of the recent Competition Commission report suggesting that local markets are not working in healthcare in the UK; this probably means that the system can only get worse, as healthcare reforms bite in England (which is the most privatising of the UK countries in the way that it is providing healthcare). Alan Maynard in The Guardian recently was critical of the whole history of ensuring competition in UK healthcare. He argues that we must try harder for transparency and competition if we are going to have a more marketised healthcare system.

Link to Competition Commission documents

I have suggested here before that competition regulation is going to be an important area of campaigning if we are going to continue to support fair healthcare provision in England.

Guardian comment by Alan Maynard on healthcare competition.

Compensation when complex care goes wrong: we need public service not medical negligence

An interesting comment from a lawyer about whether a ‘no fault’ basis for claims against the NHS would be better than the present system where people who are dissatisfied with their care on the NHS and seek compensation have to go to court. She’s writing on a blog about clinical negligence. Her view is that because you have to have expert evidence, it discourages people trying it on, and leads to a fair outcome. Many people also argue that the court system has a formula for compensation which is more realistic than the amount that would normally be arrived at by a bureaucratic system, in which the government would inevitably have a hand.

The main argument for a no fault system is that if you need compensation for something that has gone wrong, you have needs that should be met, and meeting those needs should not depend on whether you can prove someone was at fault. Often things go wrong and nobody is at fault, but your care needs still have to be met. And it means you have to go into battle, in public, and the medical profession has it well-sorted to defend themselves at all costs. Also, it often means that people who can prove a fault and get compensation get more choice and better, more luxurious care than someone with just the same needs you cannot prove a fault. Why should the wronged get better care than the unlucky?

One view of the interests of public policy, which this comment alludes to, is that having an adversarial system encourages the NHS (which after all is a public service) to conceal problems rather than seek to get it right for you and, by improving their services, for later patients too. Also, of course, it sets people against their doctors and service providers, when they will continue to need care later in their lives, but might often be seen as troublemakers. And where it is a public service, like social care services still are, a complaints mechanism and political responsibility should still play a part. The problem with just accepting a complaints mechanism and no fault compensation is that it seems to be impossible to get public services to look at their what they’ve done and acknowledge it when they’ve got it wrong. That’s probably human nature.

Added to the natural human tendency to be defensive if you are in the wrong, the market system of care, with bits of the service increasingly privatised, make it increasingly hard to tell what you should hold a public service responsible for. In the Guardian today, film-makers are complaining about the BBC ‘commissioners’ interfering in their creative processes to pursue the channel ‘demographic’, by which I mean some marketing policy that they’ve drawn up to differentiate their channel from some other piecemeal provision. Are NHS or social care commissioners likely to be any better at valuing creative but expensive care, or ideas that don’t fit the standard mold of policy that is in fashion at the moment? NHS and social care managers are also inclined to interfere with openness with patients to protect the market view of their bit of the health service; I suspect this is the main source of the problems over the Care Quality Commission, also in the papers over the last few weeks. It’s not that the people at the top were inherently evil-doers, it’s that in the environment that our politicians have created in which everything, including our health and social care, is bought and sold, the selling bit of the job means that managers have to abandon honest human relationships in favour of brand management. And they’ve learned as part of the influence of private sector management on the public sector this over the past twenty years, so they’ve lost the public ethos of service and concern for patients.

But the real problem with compensation claims for medical negligence is that it deals with a particular kind of medicine, but not the broad care services of which medicine is a part which we have seen in the news lately. What is the point of suing a doctor for compensation if the problem is with the coordination and integration of a whole care service? Nurses and other professionals, including social workers, are involved and all kinds of provision, which are not the subject of a prescription or an operation. One bad thing about this is that it encourages people to see doctors as the people ‘in charge’ who order everyone else around, and the doctors to feel that they are entitled to do that because they are legally responsible if the care goes wrong. This creates the wrong attitudes among some doctors and encourages a handmaiden approach among other professionals rather than multiprofessional teamwork.

What is the role of medical negligence in end-of-life care, for example. Yes, it is possible that the doctor gets their dose of morphine wrong, or a nurse fails to respond to a frustrating patient on the buzzer for the nth time, but the quality of the service mainly depends on a seamless integration of a wide range of helpers mainly in people’s own homes. This may include social work, whose role is particularly undefined and poorly understood by everyone involved, and so therefore not readily liable to some kind of compensation culture. We do need a sensible way of judging whether someone got a good deal for services like these when they are dissatisfied or need compensation. And since hospices are small providers in an increasingly commercialised world, you do wonder whether the new NHS is going to mean that marketing is going to be to the fore and admitting mistakes and improving service quality will fall by the wayside.

And what about the medical care which fails to acknowledge end-of-life care at all? Most people who have worked in hospices have experienced the well-off patient (and occasionally not so well-off) transferred at the last minute from the private hospital whose cancer doctor has been telling them for weeks that the latest (expensively charged-for) procedure is certainly going to cure them, and who then need to get them off the premises quickly before they actually die. I’ve noted before that the caring ads of the private insurers that you see selling their cancer care wares, while increasingly recognising the psychological elements of care that they need to be concerned with, still fail to mention that actually quite a lot of people still die from cancer.

Different UK health and social care systems: they don’t learn from each other

In an interesting report for the King’s Fund healthcare think tank and the European Observatory on health policy, Nicholas Timmins looks at what the four different healthcare systems in the UK have learned from the differences in each other.

Not a lot is the answer, mainly because they are contemptuous of each others’ policies, and especially of the English market-based system (except when it was found that targets reduced waiting times – and by the look of it, I would say that wavering on targets does not help). The report finds that , if more comparative work was done, it would show over time whether markets or co-operation works best.

This report is an example of the over-emphasis on health. There are four systems of social care, too, and very little research into what works best.

Link to the report.

NHS merger proposal that includes patient benefit in anti-competition decision

Some months ago, I commented on a report of a foreign competition review of hospital mergers and said it would be interesting to see what the UK competition authorities did, faced with a hospital merger. Here is a lawyer’s view of the first one. The Office of Fair Trading looked at a proposed merger between hospital trusts around Bournemouth, decided they were potentially anti-competitive and referred them to the Competition Commission. As with the foreign case that I commented upon, the main concern, reported by the lawyer, were:

It is clear from this first case that the OFT’s chief concern was that the merger would result in diminished choice for patients and commissioning groups and therefore reduce incentives to compete on quality, which would have a detrimental impact on patients using these services.

The OFT identified at least two key parameters for competition between the Trusts:

1 competing to attract patients; and

2 competing for funding from commissioners of NHS services.

What this tells us is that there is a potential, when looking at proposed mergers in the NHS, for someone outside the NHS to look at them and see what the evidence is that patients will benefit, including convenient access, not at what the managers say about how they can save money. This provides a new area where campaigners looking at NHS reorganisations can apply pressure to the healthcare system. No independent body has ever looked before at this kind of evidence.

This is potentially a good counter-balance to financial pressures towards NHS mergers that disadvantage patients, if campaigners can use it.

Here is the link to the report: OFT’s first review of NHS Foundation Trust merger – Lexology.

Long-term care needs to be reliable, with funding certainty: not a government priority

In a useful comment, lawyer Richard Lodge from the solicitors Kingsley Napley comments on compensation claims against the NHS. Someone else has argued that calculating the costs of care through private provision is ramping up the costs, and NHS care should be the main basis for care, but is not accounted for, by law, in the calculations. Lodge points out that most care payments is for the activities of daily life and usually provided by social care, for which the disabled person has to make a contribution. In any case, nowadays and increasingly in the future, it is provided through private care agencies, so the costs are legitimate.

Link to Richard Lodge’s comment.

This is not just a lawyer justifying himself, but reflects a reality which is very little recognised by some people in the NHS and many policy-makers. Long-term care is usually social care, and the NHS with its focus on getting people through an illness, is not the right organisation to be concerned with long-term care. Continuing NHS care is supposed to provide for long-term healthcare needs, but is usually administered very defensively, so you cannot rely on it. Reliable long-term care is a huge commitment, which local authority social care services have to take on without any certainty about funding into the future. And we’re not getting certainty because the government thinks sorting out the economy is more important than reliable long-term care.

No comeback for poor care in privatised healthcare?

The Care Quality Commission (the health and social care regulator) has published its annual ‘state of care’ report, which has had some press coverage, mainly about poor standards of staffing and respect in care in quite a lot of nursing homes and hospitals.

Link to the CQC ‘State of Care’ report here, or click the pic.

It is interesting to surmise what the consequences of this kind of information is. One sign is an interesting article by a lawyer who supports patients making ‘clinical negligence’ claims. She says that because older people have more complex needs, they are likely to be let down by poor staffing, and poor record-keeping may mean there is no comeback, because there is not sufficient evidence of negligence in the records.

I’m more cynical than she is. Could private sector providers (where recording is worse anyway) purposely degrade recording so that there is no comeback? Will this be another consequence of poor private sector care provision in the newly privatised NHS?

Link to the law commentary.

Here’s an excerpt from what she says:

It is a frankly astonishing that almost a quarter of the homes inspected did not have adequate staffing levels. These are the nursing homes which provide for complex health needs. 16% of hospital services failed to meet the staffing requirement levels that the CQC considered appropriate. This is a significant number of hospitals failing to provide sufficient staff to deal with care needs of patients.

The other issue which was equally important, particularly for lawyers, is that as a result of the increased pressure on limited employees, the level of appropriate record-keeping was deteriorating. In addition, so was the management of medicines.

As lawyers we depend a great deal on the medical records that were contemporaneously completed. In the private sector medical records can often be poor. In the NHS sector they tend to be more thorough. It is a worrying aspect of the report that across the board record-keeping was beginning to deteriorate. Not all institutions were poor, but a significant minority were not providing the level of record-keeping that should be expected.

And further on:

For clinical negligence lawyers it is likely that we will see an increase in potential claims to consider. What is worrying, however, in addition is that, as lawyers, we may not be able to ascertain fully what is happening because the medical records have not been completed properly.

Whilst by far the majority of inspections clearly demonstrated adequate care, there is a significant minority where the care does not meet the standard and where it is much more likely that serious accidents will occur. At the same time as the legal system is changing so that it will become more difficult for claimants to seek compensation for clinical negligence, we are dealing with a health care system which is failing a number of its own clients. The overall result may be fewer claims to the NHS and other bodies, but that does not mean that the negligence is not happening. It does not solve the problem of what happens after somebody has had an accident and requires further care as a result.

NHS property changes: less good working environment and less money than they think

One of the interesting features of change in the NHS that most social workers probably don’t think about is the way in which property is being reorganised. But we need to. One reason is that it is one of the ways in which the government hopes to extract money from the NHS – and we ought to know and worry about that.

And another reason is that it may have a serious impact on the place where we do our work. A recent National Audit Office report on using the government’s property more efficiently reported that the cost of running the government’s estate was reduced by about £100m in the years 2004-10, and by £212m in 2010-12.

Now look at these figures:

13.2 m² – current average amount of space per person across the government’s office estate

10.0 m² – Operational Efficiency Programme’s recommended average amount of space per person for government office buildings

8.0 m² – Government’s aim for the amount of space per person for new and refurbished office buildings.

£830m – potential further reduction in annual costs if a space standard of 10 m² per person is achieved.

Link to the NAO Report.

Citation: Cabinet Office (2012) Improving the efficiency of central government office property. London: National Audit Office.

Nobody can complain about the government wanting to use space more efficiently, but there is an effect. The government intends to save lotsadosh by cutting back on the amount of space occupied by staff as well as cutting back on the number of staff. If your job survives, not only will you be running round like a blue-arsed fly, you won’t have so far to run. And note that the sum for the money saved is only the recommended amount: the government aims to go much further than that.

We saw the results in a recent pleased announcement by the Cabinet Office and the Department for International Development. DFID is moving in with the Cabinet Office from its present property next to Buckingham Palace, making a very prestigious property available for the government’s friends in property development to turn into multi-million pound apartments or a luxury hotel. It will also give lotsadosh to Westminster Council, another favoured friend of the Conservatives in government.

Announcement of savings from DFID move.

Actually, people in the property business are only too well aware of what anyone employed by government knows, that their working environment is mainly old-fashioned, run-down and inefficient. A recent press report suggests that government estimates of potential gains from property sales are over-optimistic because the property is so poor.

Press report suggesting that government hopes for gains are over-optimistic.

So it’s actually more difficult than the government tells us to make lotsadosh from fiddling around with property.

Now apply this to the NHS.

The first thing you have to know is that, in 2011, the NHS set up a property company – known as NHS Property Services Limited (PropCo) – to manage centrally the property of the NHS. In the past, when there has been a reorganisation, NHS property has been passed on locally to whichever organisation is running the continuing service. Not so this time, plans have been announced to transfer a lot of property to Propco, which will manage it more ‘efficiently’. This is about making savings on the government’s balance sheet: the financial benefits will go back to the Treasury, not to local services. All property is being evaluated and if it’s not needed for local services, it will go to Propco. This will wipe out one more way of getting local services out of a financial hole and finding the money to improve them if there is a chance. It will not affect property currently in use for clinical services, but it will remove property flexibility for local services.

A legal commentary says:

NHS Propco is expected to be the recipient of the majority of the existing NHS estate. Looking at existing numbers of employees working in estates and facilities departments of the current SHAs and PCTs, NHS Propco will inherit 2,000-2,500 people – somewhat of a behemoth in property company terms. Commentators also note it can expect to receive assets valued upwards of £4 billion from the PCTs and SHAs placing it on a par with property owning companies such as Land Securities and British Land.

Link to an article on the new property arrangements.

You have to doubt that all this will be as wonderful as the government says, partly because a lot of this property is likely to be irredeemably naff. But to understand a bit more, you have to know about Propcos and Opcos, because the NHS is not the only organisation to have Propcos. For this I turn to a recent article in the Real Estate Gazette (don’t I get around in the service of better information for social workers and others involved with end-of-life care?).

Link to article on Propcos and Opcos

You’re probably vaguely aware of the concept of sale and leaseback, even if you’re not sure how it works. Sale and leaseback involves an organisation that owns the property in which it provides its services (an Opco, short for operating company) selling that property to a company that specialises in managing property (a Propco) and then paying that company rent. Many of your local chainstores are run in this way. The division of responsibility means that managers of the shop can get on with what they know about, which is selling you stuff, rather than worrying about repairing the drains, which the Propco people understand.

But the great glory of this is that there is also a financial manipulation. The Opco gets a cash sum to feed into its business (or increase the managers’ bonuses) and the Propco gets a property. Because property is a nice solid valuable item, they can use it as collateral for a loan, which allows them to spend money buying other properties and developing their empire. The interest on the loan is paid for by the rent the Opco pays for the shop. Even if the Propco and the Opco are divisions of the same company, the arrangement still helps both, because they are financed for their separate activities, and not as one with mixed responsibilities.

But what happens when there is a financial and/or property crash? We know the answer to this, because we’ve been having both over the past few years. You get a Southern Cross situation; that is the residential care homes organisation that ran into difficulties because it could no longer pay the rents on its properties, because local authorities and the NHS squeezed the price they would pay for patients in nursing and care homes and would pay for fewer patients. Patients who paid for themselves also had financing problems and were less amenable to paying high prices. The Opco (Southern Cross) can’t pay the rent, but the Propco can’t reduce the rent because it was assuming that the rent would pay the interest on the loans they had to get financing to buy the properties in the first place. Also, the value of the property reduces and the Propco can only sell it at a lower price.

Transfer this account to arrangements for getting money out of NHS property. All the government’s clever schemes to get healthcrae staff into small local community practices are likely to leave a surplus of hospital property. It is not very saleable. After all, who wants to by an out-of-date hospital or clinic? Because when the market is on the upswing, you could get loans could convert it to nice saleable housing, it had some value. Now we’re in a recession so nobody would want to buy it and convert it and anyway they can’t get the loans to do so.

All of which tells you that the government may be being optimistic about getting much out of the value of surplus NHS property and they’re going to reduce the financial and service flexibility at the local level by running a big expensive property company at a time when making money out of property is quite difficult.

So NHS staff are going to get a poorer work environment and less flexibility in their immediate employer, and the government is probably not going to get as much of a saving as they think, even though they’re going to do their best to sell the family silver (sorry property) to pay off their debts, leaving the NHS with less property flexibility in the future. You can only sell it once.