Health and Social Care Bill

Memorandum submitted by UNISON (HS 11)


1. UNISON is the major union in the health service and social care sector. We represent more than 450,000 healthcare staff and 300,000 social care staff employed in the NHS and local government, and by private contractors, the voluntary sector and GPs. Our members include nurses, student nurses, midwives, health visitors, healthcare assistants, paramedics and ambulance staff, occupational therapists, operating department practitioners, cleaners, porters, catering staff, medical secretaries, clerical and admin staff, pharmacy technicians and scientific staff, and primary care staff.


2. UNISON opposes the Bill’s plans to introduce wholesale competition to the NHS, including price competition. The Bill will give hospitals the option of prioritising those who can afford to pay for their care over NHS patients. It will lead to instability and potentially to services being lost to patients. Proposals for Health and Wellbeing Boards need considerable strengthening to sustain the claim that greater democratic accountability is being brought to the NHS. The plans will also have a massive impact on staff – most obviously with the 20,000 job losses predicted by the government, but also related to terms and conditions, and the regulation of social workers.

3. With huge structural upheaval and full-blown competition introduced at a time of unprecedented financial pressure, UNISON’s overriding concern is that the Bill endangers the whole future of our National Health Service, with its genuine public service ethos and improving levels of healthcare for patients. It is therefore deeply disingenuous of the government to suggest that the Bill represents a logical, evolutionary step from what has gone before. It is also extremely disappointing that, in attempting to build support for its plans, the government has felt the need to deride the achievements and improvements of the NHS and its staff over the past decade – all the more so when the government’s use of evidence has been proven to be highly selective at best.

Wholesale competition

4. UNISON opposes the Bill’s plans to introduce wholesale competition to the NHS for its own sake, subjecting healthcare services to economic regulation and opening the NHS up to European competition law. Contrary to the government’s claims, the Bill also permits the regulator Monitor to pay private providers at a preferential rate.

5. UNISON will therefore be seeking amendment to Clause 52 in which the first duty of Monitor, the foundation trust regulator, will in future be to "promote competition" as an economic regulator.

6. Crucially, UNISON will be seeking to amend Clause 104 which permits Monitor to vary prices "in relation to different descriptions of provider", meaning that Monitor could decide to provide extra incentives to bring new private operators into a market by insisting that commissioners pay them a preferential price (despite the government claim that "we will not rig the market in favour of the private sector").

7. UNISON will be seeking to amend Clauses 60-68 on Competition, which contain virtually no reference to boosting choice or to attempting to enhance the quality of service. The repeated references to the Competition Commission and the Office of Fair Trading are completely at odds with a public health service that must be treated as distinct from the likes of the privatised utilities.

8. UNISON will be seeking to amend Clauses 15 and 60, which refer directly to compliance with EU legislation and would give the Secretary of State legislative backing to enforce EU competition law. Once services are commercialised and put out to tender it is virtually impossible under these rules for them to be taken back into a public sector health service.

9. In terms of transparency, UNISON will also seek to amend Clause 67, which states that the private companies entering the new system can "exclude from publication… commercial information" which will damage the proper scrutiny of new providers. As currently worded, this sets up a two-tier system of scrutiny, in which NHS organisations would be obliged to open their papers and accounts to the public, but private companies would not.

Price over quality

10. UNISON is particularly worried about plans to bring price competition into the NHS with repeated references to the use of "maximum prices". A strong consensus exists among commentators and academics – including those that are avowedly pro-market, such as Zack Cooper from the LSE and Carol Propper from Bristol University – that price competition will have a detrimental impact on the quality of care received.

11. The government has attempted to portray their policy as merely a continuation of the previous government’s plans for the NHS, prompting the controversy at the Bill’s Second Reading which focused on misleading comparisons between a paragraph each from the final operating framework of the Labour government and the first of the Conservative-Liberal Democrat government.

12. The most obvious difference to point out is that the previous government neither legislated for price competition nor suggested that it planned to. Secondly, there is a major difference between the approach of the previous government which was to drive down the prices paid to existing providers by commissioners, and introducing maximum pricing into a system of unconstrained market forces, as envisaged by the current government’s plans to subject the NHS to Competition Commission, Office of Fair Trading and EU rules and regulations. The pursuit of "best practice" tariffs is something which both governments have in common, but this is not about price competition – rather about bringing fixed prices down to the level of the most efficient for particular services.

13. UNISON will therefore be seeking a number of amendments to Clauses 103-105 and 110-111, in which price competition is unequivocally introduced with references to the use of "maximum prices" which would potentially allow healthcare providers, including private companies, to undercut prices in order to enter a market or to bolster their position within a market.

Private patients prioritised

14. The Bill will abolish the private patient income cap. There is currently a limit on the amount of private patient income a hospital can make – set for foundation trusts at the percentage they made when foundation trust legislation was first introduced, and more recently set at 1.5% for mental health foundation trusts.

15. The purpose of the cap is to stop hospitals from prioritising private patients that bring in extra income and thereby pushing NHS patients to the back of the queue. In the new ultra-competitive system, hospitals are likely to be tempted to prioritise those that bring extra income over free NHS patients, as they struggle to keep afloat with tariff reductions and a more cut-throat failure regime.

16. Plans for foundation trusts to keep separate accounts listing their private income and their NHS income are so far only referred to in the Bill’s impact assessment, rather than being formally legislated for.

17. UNISON will therefore be seeking to amend Clause 150 that would abolish the private patient income cap.

18. In the interests of furthering transparency and scrutiny, UNISON will also seek to add into the Bill a legal requirement for foundation trusts to produce separate accounts for private and NHS income, which the government has already agreed to in principle.

Instability and threat to services

19. The Bill opens up the possibility of instability and services being lost to patients. UNISON will be seeking to amend Clause 148 that confirms borrowing limits on foundation trusts will be removed, raising the likelihood of hospitals getting into financial difficulty.

20. There will no longer be a fall-back option of failing hospitals being brought back into the NHS; instead hospitals can be sold off and only those services "designated" as essential will have to be provided elsewhere – setting the stage for a two tier NHS. UNISON will therefore be seeking to amend Clause 158 that repeals this aspect of existing legislation.

Democratic engagement

21. The plans for Health and Wellbeing Boards need to be strengthened to ensure greater democratic involvement and to provide a role for education and the voice of staff.

22. UNISON will therefore be seeking amendments to Clause 178 which establishes Health and Wellbeing Boards. For them to express real democratic accountability, a majority of the Board should be elected councillors (rather than "at least one" as currently stated). Boosting the democratic legitimacy of the Boards is particularly important as Clause 180 allows a local authority to arrange for a Board "to exercise any other functions of the authority".

23. In addition, also in Clause 178, UNISON will be seeking to add a representative of the local Schools Forum to the list of those sitting on a Health and Wellbeing Board. As currently worded there is a role for directors of children’s services but not for representatives from education, which is an oversight given the idea of the Board is to join-up services across areas.

24. The Boards also lack the input of trade union representatives, which would be a way of ensuring that the staff voice is heard – UNISON will seek further amendment to Clause 178 in this regard.

NHS staffing issues

25. There is a risk for staff transferred to commissioning consortia that their new employer could move to change their pay, terms and conditions unilaterally, with the Bill stating explicitly that transfers taking place under Transfer of Undertakings (Protection of Employment) regulations could be unravelled after the fact.

26. UNISON will therefore be seeking to amend Schedule 2.

Regulation of social workers

27. The Bill heralds a significant change for social workers who are currently registered with the General Social Care Council but in future will have to register with the new Health & Care Professions Council. This means that the right of appeal will be to the High Court rather than the current Care Standards Tribunal. This is causing great disquiet among social workers because permissible grounds for appeal are much narrower and less responsive to the complexities of social work cases. Pursuing an appeal will become more expensive and risky. UNISON is very concerned that the new system will reduce access to justice as parties have to instruct barristers or solicitors with higher rights and social workers pursuing appeals run the risk of having costs awarded against them. The current Care Standards Tribunal system has proved itself to be accessible, efficient and cost effective in ensuring fair outcomes for social workers.

28. UNISON will therefore be seeking to amend Clause 200 and calling for the current appeal arrangements to be retained.

February 2011