House of Commons - Health

Select Committee on Health First Report

II THE CONCORDAT

10. The policy goals set out in The NHS Plan were substantiated in October 2000 when the NHS entered into a Concordat with the Independent Healthcare Association (IHA) "to set out the parameters for a partnership between the NHS and private and voluntary health care providers".[11] The opening sentence of the Concordat marked a significant shift in Government policy: "There should be no organisational or ideological barriers to the delivery of high quality healthcare free at the point of delivery to those who need it, when they need it". The Concordat indicated that work would focus initially on three areas:

"elective care - Primary Care Groups or Trusts (PCG/Ts) were to be able to commission or rent accommodation from the independent sector with either the service delivered by NHS staff under their NHS Contract, or the NHS subcontracting the provision of a service to the private or voluntary health care provider; alternatively, PCG/Ts could commission directly from a private and voluntary health care provider

critical care - NHS Trusts were expected to work with local independent providers to coordinate planning in the provision of services in a given geographical area, agree the circumstances in which patients might be transferred between the sectors and the standards of care applicable, and negotiate costs

intermediate care - Partners were to consider "the supporting role private and voluntary nursing homes, residential homes and home care could play in providing these services".[12]

11. The NHS Plan also indicated that the Concordat would assist in winter planning and the drive to reduce waiting times.[13] Finally, it suggested that the Concordat was intended to be "the start not the end of a more constructive relationship [with the independent sector]". The NHS would now explore the potential for further collaboration with the private sector in such areas as pathology, imaging and dialysis,[14] and join the NHS in commissioning research and development in "new centres of excellence".[15]

12. We wanted to establish the extent to which the Concordat had been used to date, its impact on waiting lists, its relationship with mainstream public provision and the long-term implications of its use.

13. The Secretary of State told us that he proposed to double the amount of money to be earmarked for Concordat activity, from £20 million in the financial year 2001-02 to £40 million in 2002-03.[16] General Healthcare Group, one of the major private providers, recorded that 70,000 NHS patients had been treated by the independent sector since November 2000.[17] Only part of this activity was financed by Concordat funding. Figures supplied by the Department indicate that the £20 million assigned to the Concordat purchased 10,527 operations from the private sector during winter 2000-01.[18] The Secretary of State suggested that currently somewhere between 50-60,000 operations a year are funded by the NHS in private sector facilities.[19] The IHA maintained that it was now realistic to expect each independent hospital to treat on average 1000 patients a year, giving a possible annual total of around 200,000, a figure which it described as "large enough to make a real difference to the lives of many people" but in no way sufficient to "threaten the dominance of the NHS".[20]

Capacity

Definitions

14. The Secretary of State suggested that shortages of capacity in the public sector constituted the principal factor prompting him to make greater use of the private sector, and indeed were "the biggest problem" across the health care system.[21] NHS hospitals were currently running very "hot" with bed occupancy averaging 89-90% as against an optimum capacity of no greater than 82%.[22] His approach was both to develop greater capacity in the NHS and to make targeted use of the private sector while this was coming on stream. The private sector was currently working to 55-60% occupancy giving it much spare capacity: BUPA had told him that the number of NHS patients using its hospitals had increased threefold but that it could still accommodate a "doubling" of NHS patients coming through its doors.[23]

15. We asked the Secretary of State whether there was a risk that Concordat activity took place at the expense of the NHS. We wondered whether the same incentives that would persuade clinicians to undertake extra activity within the independent sector, to ease pressures on the NHS, might not have the perverse effect of taking staff away from the NHS. As the Medical Practitioners' Union pointed out: "it would be absurd if the Concordat resulted in fewer NHS operations and more waiting list cancellations because staff were at the local private hospital 'helping the NHS to cope'".[24] The Secretary of State responded that capacity shortages in the NHS were not confined to shortages of consultant time alone, but also included shortages of beds, a lack of operating theatre capacity, and shortages of nurses.

16. What needs to be carefully considered is how capacity is defined and what the impact of additional publicly funded activity in the independent sector will be on capacity within the NHS. There is a danger in equating capacity in the public sector directly with capacity in the independent sector. In fact, the relationship is rather more complex. Most acute hospitals in the independent sector do not employ consultants (though nurses are often directly employed). Instead they grant practising privileges ("admitting rights") to self-employed consultants. The consultants themselves, as the IHA confirmed, are in the vast majority of cases also working for the NHS (usually under maximum part-time contracts).[25] In its report into consultants' contracts, our predecessor Committee noted that 16,000 out of 23,000 NHS consultants maintained private practices.[26] The supply side may be limited in the NHS but the same constraints do not necessarily apply in the independent sector. To some extent the spare capacity in the private sector to which the Secretary of State alluded reflects a lower bed occupancy rate designed to achieve elasticity of supply: in the event that demand rises, capacity can be increased further. Bed availability is also easier to manage in the private sector since private hospitals take virtually no emergency work.[27]

17. It remains to be demonstrated that greater use of the capacity of the independent sector poses no direct threat to resources in the public sector. Careful definitions need to be adopted when defining "shortages of capacity" in the NHS and "surplus capacity" in the independent sector. We recommend that the Department should commission an independent assessment of the impact of the purchasing by the NHS of activity from independent providers on staff availability within the NHS.

Short-term fix or long-term relationship?

18. Using the private sector as a short-term fix to ease the pressure on the NHS and drive down backlogs in NHS waiting lists was generally supported by our witnesses. The Medical Practitioners' Union, for example, accepted there was no objection to using "spare capacity" in the private sector provided that this was a "temporary expedient".[28] The NHS Consultants' Association, though opposed to long-term use of the private sector, agreed that it was reasonable to explore "short-term options to increase capacity".[29] UNISON also felt that there would be "some justification" for the Concordat if it were a short-term expedient but drew attention to what it saw as the undesirability of a "longer-term reliance" on the private sector.[30] The Chartered Society for Physiotherapy called for the Concordat to be "time-limited", believing that too much reliance on the private sector would inevitably cause it to flourish at the expense of mainstream NHS provision. It felt, however, that there was scope to extend the Concordat within the voluntary sector, particularly in areas such as neurology, paediatrics and learning disabilities.[31]

19. The main focus of the Concordat has been on the use of private and voluntary sector elective treatment facilities and nursing home/intermediate care facilities. In both these areas, the NHS has, historically, used private facilities to support waiting list initiatives and targets and to expedite discharge from hospital. But this has been largely on a piecemeal, spot purchasing basis dependent on local initiatives, using whatever capacity the independent sector happened to have available. The key change indicated in the Concordat is a shift towards long-term and continuing relationships between the NHS and its providers in these areas. As the Secretary of State put it to us, there needed to be a move away from "a one night stand" towards "a long-term relationship".[32]

20. BUPA argued that longer-term planning would yield many benefits. It said that although the spot-market approach offered the advantages of being very flexible and responsive it had the disadvantages of being more expensive and limiting the amount of planning that could be conducted.[33] The Secretary of State himself favoured longer-term relationships, believing that these would help level out some of the peaks and troughs of activity in the NHS.[34] The leaders of a project monitoring the success of Concordat activity in East Surrey similarly observed: "The private sector is willing to be a short-term safety valve but is strongly in favour of longer-term arrangements to avoid the annual waiting-list panic, and we fully support this. Fire-fighting at the end of the year is a demoralising and exhausting ritual and does the NHS's reputation as a strategic organisation little good - nor is it the best way to treat patients".[35]

21. We have no objection to the NHS combatting shortages of capacity (in terms, for example, of lack of theatre space or shortages of beds staffed by nurses) by making use in the short-term of the independent sector. Moreover, we acknowledge that waiting lists of themselves entail costs in terms of additional burdens on social care, the welfare system and the health service itself as a consequence of the additional expense of treating more advanced conditions. Above all longer waiting times have a real impact on patients' quality of life. However, we think it imperative that the NHS develops sufficient acute capacity to keep down waiting times. The extensive capital development programme under way needs to be complemented by contractual arrangements which ensure that the NHS has the consultant time and other resources it needs to carry out this higher level of activity. We recommend that the Department, together with trusts, should look at ways of providing further incentives to staff to work for the NHS.

Private pay beds

22. We asked the Secretary of State if he would consider creating extra capacity within the NHS by ending the current provision of private patient units and pay beds in the NHS.[36] His response was that the 3000 beds provided in such settings generated income (which is not to be confused with profit) to the NHS of the order of £300 million per annum. The Secretary of State accepted that this figure did not take account of any "hidden subsidies" provided by trusts, but thought that trusts would not want to look elsewhere to find the considerable income such units provided. He felt there could be scope for innovation here, pointing to the example of the Daresbury Orthopaedic Unit at Warrington Hospital. This private unit effectively went bankrupt, and the Secretary of State praised the enterprise of the local trust Chief Executive who bought it for the NHS "at a knock down rate". He equated this initiative with the purchase by the Department of the London Heart Hospital, a transaction he also regarded as being "a really good deal" for the NHS.[37]

23. The current balance of provision between public and independent sectors is clearly under review. So we believe that now would be an appropriate time for the Department of Health to ensure trusts have undertaken a recent cost-benefit analysis of the reclaiming for the NHS of capacity utilized to provide private pay beds in NHS hospitals. This could establish whether there are any trusts which might find it more cost-effective to use this capacity within the NHS instead of buying in operations from independent hospitals.

Consultants work in the private and public sectors

24. We asked the Secretary of State whether there might not have been a substantial impact on waiting lists if those consultants who were working part time in the NHS could be persuaded to work full time. According to the Department's own calculations, this would yield capacity amounting to 1,500 whole time equivalent consultants to the NHS, offering an additional 6% consultant hours.[38] The Secretary of State told us that such a course of action would be unfeasible. A legal ban on consultants working for both the NHS and the private sector would, he felt, trigger an exodus of consultants from the NHS. Offering consultants compensation for eschewing private work would be costly and potentially inequitable. If compensation were restricted to those consultants in specialties which offer the scope for lucrative private practices, who might be entitled to compensation running to £100,000 per annum or more, this would have the effect of rewarding those consultants who had undertaken least NHS work relative to those who, perhaps by virtue of their specialty, had done most.[39] On the other hand, the option of compensating all consultants might cost as much as £1 billion per year, and would mean the NHS was paying some employees much more for the same amount of work.[40] However the Secretary of State agreed that the status quo could only be described as "confusion and mess" and needed reform. He felt that the best way forward was to pursue the proposal set out in The NHS Plan to try to ensure NHS consultants worked exclusively for the NHS for a period of seven years following their qualification.[41] It is not, however, clear to us how much extra consultant time this would produce for the NHS. We recommend that the Department publishes data on the impact of this measure on NHS capacity to enable planning of the other resources needed to match any additional consultant availability.

25. The Department also acknowledged that there remained great uncertainty as to the quantity of work undertaken by NHS consultants in the independent sector and admitted that too few NHS consultants had job plans, an omission it regretted. We would like to point out that it is now almost two years since our predecessor Committee published its report into Consultants' Contracts which expressed "astonishment" that job plans, reviewed annually, were not in place for every consultant. Our predecessor Committee's report prompted the then Government to say that it regarded job planning as "a clear and compulsory activity".[42]

26. An issue arising from the blurred division between consultants' work for the public and private sectors, to which our predecessor Committee drew attention, was the possibility that consultants might have a perverse incentive to cultivate long waiting lists in the NHS. This they might do in the hope that it would persuade more patients to take up their services in the private sector, where the patient would get an appointment more quickly and the consultant would receive substantially more pay.[43] We would emphasize that most consultants have a strong sense of public duty, and we believe that very few consultants would deliberately exploit this by openly suggesting such a course of action to patients; but we are concerned that patients might be subtly made aware of the existence of a two tier system. In our view, too much onus is placed on individual consultants themselves to keep competing interests apart. We feel some structural reform is needed here to ensure probity.

27. We believe that the Department should ensure that all consultants have job plans and that this is an essential prerequisite for the appraisal of NHS consultants.[44] Since appraisal and revalidation are being progressively introduced for all registered medical practitioners, there is scope for consideration to be given to the impact of any work done in the independent sector on a consultant's NHS responsibilities. We recommend that this opportunity is taken and that the resulting mechanisms should include provisions (for example, sanctions in relation to pay and conditions) which guard against the potential conflict of interests for consultants working in both the NHS and independent sectors.

28. In order to ensure greater accountability, we recommend that details of payments for NHS activity made to consultants working in private settings should be published by trust boards.

Equity in access

29. Evidence from the Department suggested that spending under the Concordat was resulting in marked geographical inequities. Whereas 3,294 cases have been commissioned by means of Concordat funding in the South East, only 444 have been commissioned in the North West.[45] The Secretary of State responded that pressures, such as workforce shortages, were perhaps more intense in the South East leading to a greater incentive to make use of the private sector. However, he agreed that a key factor underlying the disparity lay in the uneven geographic distribution of private sector capacity, which was heavily weighted towards the southern parts of England.[46]

30. A possible redress for this imbalance, and one alluded to by the Secretary of State in oral evidence, may lie in the location of some of the new Diagnostic and Treatment Centres anticipated in The NHS Plan in areas where waiting lists and waiting times are long and private sector capacity short.[47] General Healthcare Group has indeed offered to build at its own expense and risk, and with no up-front NHS contracts, a £30 million Diagnostic and Treatment Centre in just such an area, provided it can be assured that "no political impediments to such a facility building a long-term relationship with NHS purchasers will be introduced".[48]

31. It would be invidious if the uneven geographical distribution of independent sector provision exacerbated inequalities in waiting lists and times. Therefore we recommend that further money aimed at reducing waiting lists and times should not be earmarked specifically for Concordat activity or restricted to the use of private and voluntary sector provision but should be available for use in whatever way is best suited to local circumstances. This may include the development of local NHS capacity.

32. One of the Secretary of State's prerequisites for additional private sector involvement was that it should be "consistent with public sector values, including that treatment is determined by clinical need and that staff are treated fairly". We put to him the case of a private sector provider, Thornbury Hospital in Sheffield, which had treated NHS patients from at least two different health authorities. In correspondence, the Secretary of State had suggested that "a reasonable degree of consonance had been secured between waiting times" and "clinical priority had not been compromised". We suggested that the protocols relating to these episodes made no mention of clinical priority. The Secretary of State conceded that this was "a very reasonable point" and said that it gave further impetus to his policy of seeking long-term relationships with private sector providers, rather than using them for spot purchasing at one or two peaks in the year.[49] The proliferation of commissioners, with the growth of Primary Care Trusts (PCTs), adds to the danger that inequalities in access to care may grow.

33. A basic tenet of the National Health Service is that there should be equal access for those with equal need. This principle underpins the Government's policy of national targets for waiting times, for access to cancer treatment and the progressive development of national service frameworks. Strategies for the development of services take account of the drive for equity of provision, though clinicians themselves will rank the priority of individual patients. We judge it to be essential that the use, by the NHS, of clinical capacity within the independent health care sector does not depart from these positions. NHS waiting times should therefore be maintained on a basis that ensures equity of access to health care services contracted from the independent sector irrespective of the locality of the commissioning authority.

Value for Money of Concordat activity

34. Another of the Secretary of State's key tests for extending the role of the private sector was whether this activity constituted value for money. We sought to ascertain the extent to which this had been achieved. The Secretary of State told us that one way of establishing the extent to which value for money was being achieved would be to use NHS reference costs as a benchmark.[50] However, the severe limitations of proceeding on this basis, at least at present, were exposed by Mr Auld of General Healthcare Group:

The Secretary of State accepted that it was "impossible" to believe that an NHS hospital could carry out a hip replacement for £800 and that the disparity in the range of figures caused him to be "slightly concerned". More credence, he felt, could be placed in the inter-quartile range of reference costs, which offered much less startling discrepancies.[52]

35. We asked the Secretary of State why there were such widely differing costs for episodes of treatment under the Concordat, with the average cost in the North West being £2000 and in the North and Yorkshire, £3000.[53] He acknowledged that "differential" prices were being negotiated with private sector providers both in different parts of the country and even within the same areas, with "some hospitals ... negotiating better deals than others". He felt that the best way to ensure value for money was to bring greater "standardisation" to the process.[54]

36. Some evidence does point to the NHS getting good value for money in respect of some of the work it has commissioned from the private and voluntary sector. In the first year of the Concordat, South East region was allocated £5.1 million for use in the private sector. Some 3,326 patients across the region were removed from waiting lists during the first three months of 2001, a third of these from the East Surrey area.[55] The results from East Surrey have been analysed and they suggest that "prices were comparable to, and sometimes cheaper than, the NHS" with the average cost per treatment being £1,120. The following table illustrates some of the procedures undertaken and compares the price paid under the East Surrey project with both the NHS reference cost and typical private sector prices:

Examples of procedural prices compared across NHS and private sector
Speciality	OPCS code	Procedure	East Surrey HA project (£)	NHS Reference Cost (£)	Private Provider (£)
Trauma & Orthopaedics	W371 W819 T521 W879 W792 A651	Hip replacement Sub-acromial decompression Fasciectomy Arthroscopy+treatment Arthroscopy Bunlonectomy Carpal tunnel	5,466 1,770 1,400 1,300 848 900 690	4,608 1,498 1,796 1,208 832 713 795	6,097-8,500 2,500-2,700 2,335 1,815-2,500 1,135-2,200 1,430-2,300 1,355-2,300	**
Ophthalmology	C712	Phaco-emulsification with lens	900	1,065	2,260-2,604	**
ENT	F343 E031	Excision of tonsils Septum of nose	975 975	2,390 1,275	1,550-1,700 1,525-1,600
General surgery	T209 L851	Primary hernia repair Ligation of varicose vein	1,200 1,030	1,329 1,174	1,705-1,800 1,800-2,180
Source: Project Bids to SERO, NHS Reference Costs 2000, ** Good Hospital Guide and local private hospitals[56]

37. Thus, for seven out of 12 procedures the East Surrey project actually achieved prices below NHS reference costs, and in all cases the prices were well below the rates for self-funded private patients. The factors underlying this, according to the project leaders, were a reduction in 'did not attend' rates (0.3% compared with 8% in the NHS);[57] and higher consultant productivity as a consequence of financial incentives, smaller units encouraging greater team work, seamless operational and administrative processes and the use of more dependable equipment.[58] BUPA's suggestion that its own survey of NHS commissioners had reported that "74 per cent thought that BUPA provided good value for money and high quality care" offers further support for the idea that Concordat activity can represent good value for money.[59] In contrast to this encouraging analysis is the assertion of the NHS Consultants' Association: "Information so far suggests that the use of the private sector is almost invariably more expensive than providing services within the NHS".[60] The Socialist Health Association acknowledged the evidence from East Surrey, but believed that a move to longer-term arrangements might ultimately weaken the NHS by reducing the pool of staff available to it so that the NHS might become dependent on the independent provider which could in due course charge more.[61]

38. The results of the East Surrey survey of the costs of Concordat activity are encouraging, but given the very wide regional variations in the costs of work carried out under the Concordat, we find it hard to see how the public can be confident it is always getting value for money. Moreover NHS reference costs, which are themselves subject to wide variation, are not yet an appropriate means of judging value for money. We believe that the Audit Commission should urgently review a representative sample of this activity to assess value for money. We also believe that the Department should take urgent steps to improve the methodology underlying NHS reference costs so that they can eventually act as a meaningful benchmark.

39. We are also concerned that independent providers may sell activity to the NHS with a view to establishing a dependence on their services which would then put them in a position to increase prices to the NHS in the future. We have received no assurance that if there is to be a longer term relationship with the private sector then contract prices with the NHS will be protected in the longer term. Where spot purchasing is taking place, for example to reduce waiting lists, in general we would expect the prices to be below relevant NHS reference costs as the NHS should be able to use its bargaining power to pay not much more than marginal cost for this activity. We recommend that the Audit Commission is given a right of access to independent sector providers of NHS healthcare, and that "open book accounting" principles should operate in respect of these providers.

40. We further recommend that the Government introduces guidelines on the basis of which all NHS trusts will be required to develop explicit, publicly available protocols setting out the principles governing their use of the independent sector.

The interoperation of public and private healthcare: regulatory and training issues

41. The Government's policy of encouraging greater interaction between private and public sectors led us to ask the Secretary of State whether the time had not now come to bring the independent sector into the same regulatory framework as the public sector. The Secretary of State told us that this was an issue that needed to be looked at. He pointed out that the Commission for Health Improvement (CHI) and the National Care Standards Commission (NCSC), which will regulate the independent sector from April, were empowered, under section 9 of the Care Standards Act 2000, to work jointly, and were able to subcontract staff from one organization to another. He also argued that CHI was empowered to follow the NHS patient whether treated in the public or independent sector.[62] The Department drew attention to other differences between CHI and the NCSC: unlike CHI, the NCSC is a regulatory body which registers care providers; the NCSC is mainly concerned with social care services, with the consequence that health care services represent only a small proportion of its activity; and in many of the health care settings covered by the NCSC (for example those dealing with cosmetic surgery) no NHS patients will be treated.[63]

42. Since our inquiry began the Government has issued its reply to the public inquiry into children's heart surgery at the Bristol Royal Infirmary 1984-95, chaired by Sir Ian Kennedy. The Kennedy Report called for closer inter-operation between CHI and the NCSC and in its reply the Government seemed to accept the force of this argument, asserting:

43. We note that the Government plans to make regulations so that the Commission for Health Improvement may exercise the National Care Standards Commission's function of inspection in relation to independent hospitals.[65] We would be very concerned if such arrangements resulted in a diminution of health care skills in the regulation and inspection of nursing and health care services provided to people accommodated in social care settings - including those of care homes in which nursing care is provided.

44. Our predecessor Committee voiced reservations about levels of cover, facilities and staff qualifications at some independent sector hospitals in its report The Regulation of Private and other Independent Healthcare. It argued in favour of greater interaction between private and public sector regulators in order to ensure that patients treated in the private and voluntary sector were not placed at undue risk. A question the Department will need to consider is what the impact on public confidence in the Concordat would be if an NHS patient suffered a serious adverse clinical incident in a private hospital.

45. Our predecessor Committee's report into the Regulation of Private and other Independent Healthcare drew attention to some of the difficulties caused by separate arrangements for the regulation and accountability of the public and independent sectors. Ever greater degrees of transfer between the two sectors place even greater question marks over the sustainability of separate regimes. In the light of the Government's reply to the Kennedy report and the Secretary of State's argument that CHI and the Care Standards Commission have been developing powers to share their work, we recommend that the Government produces a common regulatory framework as a matter of urgency.

46. It is clear to us that the major providers in the independent sector would welcome a common regulatory framework. But a more mature understanding of the mutual inter-dependence of public and independent sectors perhaps also entails wider shared responsibility. Training clinical staff places a considerable burden on public expenditure. So we asked Mr Hassell of the IHA whether he felt that there was a case for a training levy being placed on the private sector. He asserted that the independent sector already participated in training: for example, the sector took about 2000 clinical placements from the training system and was working to take more.[66] However, we believe there is a case for the independent sector taking on more of the burden of training staff and call on the Department to consider imposing a levy on the independent sector towards the training, including first qualification, of some health professionals.

11 For the Benefit of Patients: A Concordat with the Private and Voluntary Health Care Provider Sector, para 1.1. Back

12 Concordat, para 2.10. The principles governing the relationship between the statutory and independent social care, health care and housing sectors were set out in the Department of Health document Building Capacity and Partnership in Care, October 2001. Back

13 NHS Plan, para 11.9. Back

14 NHS Plan, para 11.10. Back

15 NHS Plan, para 11.15. Back

16 Q6. Back

17 Ev 214; Q829. Back

18 Ev 275. Back

19 Q9. Back

20 Ev 224. According to DH HES data, 6,468,404 operations were performed by the NHS last year. Of these, 15% were classed as 'emergency', giving a total of approximately 5,498,143 'non-emergency' operations. However, there are procedures that go beyond strictly 'elective' as they include maternity procedures as well. The other figure given in these tables is for 'Waiting list' surgery (approximately 4,075,095 operations) but again this is not a true figure for all elective surgery as it does not include what DH classifies as 'planned' surgery (where there is a wait for surgery but this is due to medical or social reasons rather than capacity). Back

21 Q21; Q15. Back

22 Q14; Q34. The figures for optimum capacity, according to the Secretary of State, were derived from work the Department had commissioned from York University. The Department referenced this to an article from A Bagust et al, in the BMJ 1999, vol. 319, pp. 155-58. However, this article gives a figure of 85% not 82%. Back