University of Bristol Law School

menu

The Participation of ‘For-Profit’ Actors in the Elaboration of Just Health Care Law

Sabrina Germain

The frequency of health care reforms in England raises questions with regard to law’s ability to tackle issues affecting the financing and provision of health care services. The most recent reform of the NHS (Social and Care Act 2012) highlights the pressure put on the public power to find solutions in partnership with the private/for-profit sector. Be it, general practitioners acting as independent contractors, medical consultants engaging in the private practice of medicine, or other medical professionals providing health care services privately, for-profit actors have always participated in the organisation of health care systems and greatly impacted governmental decisions. Indeed, throughout history political institutions have been attuned to the for-profit sector’s direct and indirect input on health care policy. Nonetheless, scarcity persists and problems of access and availability are growing.[1] Thus, the stakeholder’s incapacity to find sustainable systems to allocate resources has often been blamed for the NHS’ shortcomings.

However, in theory, the literature on distributive justice offers various normative models to think about the just allocation of health care resources. Despite the existence of these pertinent normative models, the link between political philosophy’s theories and concrete distributive arrangements achieved through policy and law making has not been sufficiently put forward. Nonetheless, understanding this relationship is an essential first step in solving distributive issues in health care as it will help explain how ideas of justice can be used to craft more adequate health care laws.

Thus, the paper engages political philosophy’s literature and historical sources relating to the evolution of health care policy in the United Kingdom, to determine whether theories of justice have made their way in the legislative process through the discourse of for-profit stakeholders. For this, patterns in and across statements made during legislative preparatory work, namely consultative White Papers and the Second Reading of Health Care Bills before the Houses of Parliament, are analysed. Particular attention is paid to the participation of the medical profession in the legislative process leading to the enactment of the foundational NHS Act (1946), the NHS Community Care Act (1990) and the NHS Health and Social Care Act (2012).

Key Findings

After the war, Aneurin Bevan, Minister of Health imagined a unified system of care whose only goal would be to provide the entire British population with services based on needs and not on means. From then on, the NHS would forever embrace and protect these values thanks to the help of the medical profession. The initial alliance between the state and doctors did not divorce the medicine from the money but separated the practice of medicine from the medical professionals’ income and thereby removed any perverse incentives.[2] This constraint has led the medical profession to be the most fervent defender of the NHS’s fundamental principles. 

The NHS Act 1946

Starting with the foundational NHS Act (1946), the analysis of discourses highlights the consensus surrounding the project of a solidary health care system and presents the lengthy negotiations leading to the enactment of this Act. This legislation was certainly the product of the post-war era, the ground-breaking work accomplished by the Beveridge report, and the ambition of Aneurin Bevan. With this project, Bevan wanted to implement a system that could improve the general health status of the population and benefit the entire British nation.

Members of Parliament agreed with the basic egalitarian principles at the core of the NHS. Resources had to be pooled “as a community [to] pay doctors for general care, irrespective of individual needs”.[3] However, Bevan also brought in Parliament the concerns he had about the medical profession as he explained that “unless doctors [were] allowed to buy and sell practices like hucksters in the market place, and unless they [could] retain their private enterprise, they [were] not going to be good public servants”.[4] However, “the interests of the community demand[ed] that the distribution of medical services (…) be organised with the claims and needs of patients and not the whims and fancies of practitioners as the guiding factor”.[5] Indeed, despite the political consensus, the medical profession had opposed the idea of a centralised system. In fact, even after the enactment of the Act, the British Medical Association (BMA) continued to share its discontent.

It was only after gaining the right of private practice in the hospitals and full-time and part-time NHS contracts that medical consultants joined the ranks of the NHS and helped the government rally the GPs that were eventually contempt after having secured their independent contractors’ status. Ultimately, the profession entered into a tacit concordat with the state, which settled their role in the new system. The egalitarian principles in the final version of the Act result from utilitarian calculations and intense negotiations with the BMA.

NHS Community Care Act (1990)

The 1979 elections marked the first step in an enterprise that would forever change the NHS. Margaret Thatcher and her government undertook a programme of radical economic and social reforms. Prime Minister Thatcher dreamed of a beneficent internal market coming to the rescue of an inefficient health care service.[6] Certainly money had to follow the patient, but ultimately the system’s core values would also have to be preserved.

The medical profession heavily criticised the shift in policy and stood up to the government. In response, the Prime Minister announced a complete review of the health care system from which it excluded the BMA. Medical consultants and GPs were slighted and interpreted the government’s lack of consultation as a deliberate snub to the profession.[7] Indeed, Thatcher had purposely set up a cabinet committee to challenge the medical profession and signal the new and lesser role she was willing to give it in the constellation of power. These feelings of exclusion and affront would shape the BMA’s perspective of the entire project.[8]

Despite the animosity at the consultation stage, the government went forward with the enactment of the NHS and Community Care Act. The core concern of the medical profession was brought forward by Labour MPs that questioned the purpose and consequences of the reform since the system in place was already “popular with the public and professions alike and [was] comprehensive and economical”. The libertarian precepts prescribing more freedom and market competition to achieve a more just allocation worried the BMA. Doctors were categorical in refusing to select treatment options based on financial considerations. It is in great part due to their lobbying efforts that the egalitarian foundations of the NHS remained unchanged. Only the means to obtain equality in health care were now different as a transition from efficiency to effectiveness had been put in place.[9]

NHS Health and Social Care Act (2012)

In 2012, another shift occurred, this time from a patient-focused ideology towards a consumerist approach to health care. Economic difficulties were looming on the country and on the NHS as it faced its longest period in history of low funding growth.[10] The ground-shaking White Paper Equity and Excellence: Liberating the NHS proposed far-reaching changes for the provision of health care in Britain.[11] Greater diversity in health care services was promised and the for-profit sector was to play a greater role in the NHS.[12] The goal was to set up an ambitious but speedy reform that put patients first while improving health care outcomes.[13]

A Bill was quickly introduced to Parliament but the controversy and animosity it created halted the legislative process. The Coalition called for a pause to reflect and listen to the main stakeholders.[14] Opposition came from all sides: politicians, the public, and of course, the medical profession that was outraged by the imminent crime against the core values of the NHS.[15] The Labour Party, the Royal College of General Practitioners, the Royal College of Nursing, and the BMA joined forces to terminate the legislative process. Yet, each clause was discussed and negotiated until a patched-up version incorporating more than 1,000 amendments finally received royal assent on 27 March 2012.[16] During the debates and negotiation the Labour Party established itself as the spokesperson of all opposing forces claiming that “there [was] an underlying sinister motive to advance the market philosophy into the NHS, which will ultimately destroy it. The cherished principles of the NHS as a universal service will indeed be lost forever”.[17]

In fact, the consumerist revolution the Act proposes undeniably changes the character of a patient’s entitlement.[18] A new, more direct role is also envisaged for the for-profit sector. However, the original egalitarian spirit of the NHS for most parts remains.[19] 

Conclusion

Legislative debates and preliminary legislative work reveal how conceptions of justice have guided health care distribution processes. NHS stakeholders have helped to preserve an idea of justice that has, over time, transcended health care policy and law making. The means to achieve the egalitarian ideals may be different from one reform to the next, but the fundamental principles are unchanged.

References

Feedback

Edit this page