Editor’s blog Wednesday 18 May 2011: It’s the economic regulator, stupid

The battle for the credit for ‘saving the NHS reform’ resumes, in the wake of Prime Minister David ‘Shabba’ Cameron’s Monday ‘vajazzle-dazzle’ speech.

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The Lib Dems have leaked their latest red lines to The Times and BBC News: they want none of Monitor as a competition and economic regulator.

[UPDATE: The Guardian's excellent LiveBlog has obtained the exact wording of the Lib Dem document section on Monitor. It is also copied below this post.]

That is, if you read the reports of the leaks very quickly. Their actual position might be a bit more nuanced.

The BBC reports the policy document (signed by Deputy Prime Minister Nick Clegg) as saying, "We cannot treat the NHS as if it were a utility, and the decision to establish Monitor as an "economic regulator" was clearly a misjudgement, failing to recognise all the unique characteristics of a public health service, and opening us up to accusations that we are trying to subject the NHS to the full rigours of UK and EU competition law.
"I have come to the conclusion that we must not make this change".

Now, I’m getting Jesuitical on the language here (but then, we’re dealing with politics, which is basically the art of the linguistically possible). But what they are saying is they won’t “establish” Monitor as an economic regulator.

Not that it won’t become one over time.

That may be over-cynical of me, but it’s probably worth a watching brief as the next draft of the Bill develops.

BBC News also reports that Clegg told Lib Dem peers on Tuesday night that Monitor should have a duty to promote NHS collaboration rather than competition. This one has been signaled for some time: again, I’ll be keeping an eye on subordinate lines in the legislation to do with competition.

Clegg apparently also promised that he will ”never let the profit motive get in the way of the essential purposes of the NHS. There must be no change in the way competition law operates in our NHS. No to establishing Monitor as an economic regulator as if health care was just like electricity or the telephone and no to giving anyone in the NHS a duty to promote competition above all else.”.

Now that is more interesting. Because as Clegg’s consigliere Norman Lamb well knows, competition law already applies in the NHS, via a body known as the NHS Co-operation and Competition Panel.

More to the point, read the last line properly:”no to giving anyone in the NHS a duty to promote competition above all else”. Note the phrase “above all else”.

The politics of this are not done yet.

Nonetheless, I sense two possibilities. Either there is going to be some reference in the Bill to Monitor having a secondary role in competition matters, or to the CCP having an advisory role on competition.

Or there would be subsequent legislation planned.

In other news today, the NAO makes the startling revelation that, like a NMC-suspended midwife, the National Programme for IT is not going to deliver.

It baldly states, ” The rate at which electronic care records systems are being put in place across the NHS under the National Programme for IT is falling far below expectations and the core aim that every patient should have an electronic care record under the Programme will not now be achieved. Even where systems have been delivered, they are not yet able to do everything that the Department intended, especially in acute trusts. Moreover, the number of systems to be delivered through the Programme has been significantly reduced, without a commensurate reduction in the cost.

“Today's NAO report concludes that the £2.7 billion spent so far on care records systems does not represent value for money. And, based on performance so far, the NAO has no grounds for confidence that the remaining planned spending of £4.3 billion on care records systems will be any different.”.

It looks as if PM Cameron is getting the grounds for the contract termination he mentioned at last week’s PMQs.

The Lib Dem document on Monitor,  as obtained by The Guardian
This is the area of the Bill which requires the most substantial changes. We cannot treat the NHS as if it were a utility, and the decision to establish Monitor as an "economic regulator" was clearly a misjudgement, failing to recognise all the unique characteristics of a public health service, and opening us up to accusations that we are trying to subject the NHS to the full rigours of UK and EU competition law. I have come to the conclusion that we must not make this change.

We must remove from the Bill changes to establish Monitor as a competition authority, and instead maintain the existing principles of collaboration and competition currently overseen by the NHS Collaboration and Competition Panel - protocols which are understood to have insulated the NHS from the OFT exercising full Competition Act powers. The CCP should become an advisory body to Monitor. We should agree a Memorandum of Understanding between Monitor and the OFT on this basis. We will also need to retain Monitor's role in relationship to Foundation Trusts to be clear they are not "Undertakings" within the terms of EU law. Together these changes should mean we can be clear that we are making no substantive changes to the way in which competition law operates in relation to the NHS.

All references to Monitor being an "economic regulator" should be removed.

Instead of having a duty to promote competition, Monitor's main duty should be explicitly to protect and promote the interests of patients, including recognising the ways in which those interests are met by integrated care. Monitor should be empowered to encourage informed patient choice and act against anti-competitive practices but only when this is in the interest of patients, individually and collectively, and in the interest of equality of access.

Recognising that all the best healthcare systems in the world are moving towards integrated care, Monitor and the NHS Commissioning Board must be directed to develop tariffs for whole care pathways to enable commissioners to contract easily for integrated care.

Monitor in conjunction with the NHS Commissioning Board should be directed to develop the tariff with the explicit purpose of preventing cherry-picking - this would mean appropriate pricing for simple and complex procedures, and for different patient mixes.

We should establish new requirements for Monitor to secure patient and public input; to secure advice from professional bodies and Public Health England; and to act transparently and meet in public.