Mary Guy and Okeoghene Odudu[1]

The run-up to a UK general election typically invites reflection on National Health Service (NHS) reform, and claims and counter-claims of ‘NHS privatisation’ often arise between the different parties across the United Kingdom (UK). The current period is already no different, with a seemingly closer alignment of Labour and Conservative policies on the use of private (independent sector) providers to deliver NHS services.

Media coverage suggests that ‘NHS privatisation’ is anchored first and foremost in questions of rationing – from lengthening waiting lists, via payment for treatments not available on the NHS, to a ‘postcode lottery’ for access to NHS care – but is also connected with issues of patient safety. Campaigns such as Keep Our NHS Public mean that ‘NHS privatisation’ is kept high on the political agenda via activism, and new books exploring NHS history now include direct references to it.

Despite this prevalence, ‘NHS privatisation’ remains not well understood. In our recent article for the Northern Ireland Legal Quarterly (‘Understanding “NHS privatisation”: from competition to integration and beyond in the English NHS’), we explore a further dimension, namely, how claims of ‘NHS privatisation’ are invoked in UK parliamentary debates about developing NHS reforms in legislation. We focus firstly on the controversial ‘Lansley reforms’ of the Health and Social Care Act 2012 (HSCA 2012) in light of the connections drawn with 1980s utilities liberalisation. We then contrast this with the repeal and revision of the HSCA 2012 competition provisions by the Health and Care Act 2022 (HCA 2022).

Locating ‘NHS privatisation’ – the ‘four categories’ model

We first locate claims of ‘NHS privatisation’ across ‘four categories’ derived from the wider interaction between the NHS and private healthcare which has existed since the inception of the NHS in 1948.

• Category 1: Public Purchaser & Public Provider
• Category 2: Public Purchaser & Private Provider
• Category 3: Private Purchaser & Public Provider
• Category 4: Private Purchaser & Private Provider

Category 1 encompasses NHS providers treating NHS patients, and Category 2 is private providers treating NHS patients, facilitated by successive ‘patient choice’ policies since the New Labour Government of the early 2000s. In contrast, Category 3 sees NHS providers treating private patients (via private patient units in some NHS hospitals), and Category 4 encompasses private providers treating private patients.

It may seem that ‘NHS privatisation’ involves an irreversible direction of travel from Category 1 to Category 4. However, this does not account well for Category 2, which most often underpins claims of ‘NHS privatisation’. Nor does it engage with Category 3, which has received significantly less attention, despite this arrangement being traced back to the National Health Service Act 1946 and ‘NHS pay-beds’, the precursor of private patient units.

The HSCA 2012 and the HCA 2022 enshrined apparently divergent policy directions of competition and integration, yet the latter generated claims that the NHS would and would not be privatised as a result. This led us to look at other proposals of NHS reform for further clarity.

Perhaps surprisingly, the HSCA 2012 and HCA 2022 start to assume more of a centre ground when juxtaposed with the National Health Service Bill and the National Health Service (Co-funding and Co-payment) Bill. The NHS Bill was introduced initially by the Green MP Caroline Lucas, and subsequently by Labour MPs under the Corbyn leadership between 2015 and 2019. Its aim was to return the NHS to a fully publicly funded system, so would appear unlikely to attract criticisms of ‘NHS privatisation’. In contrast, the NHS (Co-funding and Co-payment) Bill was introduced by the Conservative MP Sir Christopher Chope in almost every parliamentary session between 2017 and 2023. This offered a contrasting view with its aim of expanding out-of-pocket expenses and facilitating the combination of NHS and private treatment, so could thus be expected to invite claims of ‘NHS privatisation’. 

However, a striking feature of these two Private Members’ Bills is their failure to gain traction to even progress to a second reading. This seemingly indicates reluctance by any UK Government to make a decisive move towards or away from ‘NHS privatisation’, amid the need to manage the inconsistencies posed by the coexistence of NHS and private healthcare. Competition and integration then can be seen as different – but not necessarily contradictory – policy levers which have been favoured at different times with regard to this management of the NHS–private healthcare coexistence inconsistencies.

‘NHS privatisation’ in parliamentary debates – some reflections

Across the debates preceding the HSCA 2012 and the HCA 2022, we identify uses of ‘NHS privatisation’ as representing at least two dimensions: a general and vague concept (but nevertheless something to be avoided); and a process with indistinct start and end points. Beyond these dimensions, it is also possible to identify different facets of ‘NHS privatisation’: from the difficulty of grasping the full extent of NHS and private sector interaction due in part to its controversial nature, via a sense of expanding private sector delivery and receding NHS provision (notably in dentistry), and the scope for conflicts of interest regarding governance of the new Integrated Care Boards which replaced the Clinical Commissioning Groups of the HSCA 2012.

Ultimately, we consider that ‘NHS privatisation’ is connected fundamentally with questions of accountability and reflects a dimension of the wider tensions between market and state. Some of the controversy of the HSCA 2012 lay in the removal of Secretary of State oversight powers in favour of bodies such as the Competition and Markets Authority (CMA) and NHS England. However, the re-incorporation of a larger role for the Secretary of State with the HCA 2022 appears not to equate to a lessening of concerns about NHS and private healthcare interaction. Rather, the NHS oversight landscape becomes more complex with the interaction of the now well-established and recently expanded NHS England and a continuing role for the CMA alongside the Secretary of State, an office which has seen no fewer than five incumbents since the enactment of the HCA 2022.

By anchoring ‘NHS privatisation’ in UK parliamentary debates, it is possible to see that it holds a curious power which may be replicated across, and provide learning for, political debates in Wales, Scotland and Northern Ireland, even though the private healthcare sector is demonstrably more developed in England.

On the one hand, it may explain some of the criticisms which led to the protracted passage of the HSCA 2012 (January 2011–March 2012), and some of the modifications to this legislation which meant the competition reforms were less well-developed than the Coalition Government had originally intended. On the other hand, the very enactment of the HSCA 2012 and the HCA 2022 suggests this curious power is circumscribed: there are still elements of it in the interaction between the NHS and private healthcare which suggest that competition has been revised, rather than removed. Furthermore, the lack of progress of either the NHS Bill or the NHS (Co-funding and Co-payment) Bill may suggest that concerns about ‘NHS privatisation’ operate to keep NHS reform within a centre ground.

Counterintuitively, claims of ‘NHS privatisation’ may therefore inhibit discussion of more radical healthcare reform, whether questions of who should pay for healthcare, or what may be needed to implement a fully state-funded healthcare system.

 

[1] With apologies to Raymond Carver for the title of this blog.