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A glimmer of hope: we can stop the privatisation of the NHS

In this article, Stroud Against the Cuts campaigner Caroline Molloy explains how Gloucestershire people achieved a major victory earlier this year when they managed to stop a major NHS privatisation decision through the courts.

A set of guidance notes for other campaigners accompanies this article.

What did Gloucestershire campaigners do?

Earlier this year, local health bosses in Gloucestershire were forced to scrap plans to outsource NHS services to a social enterprise following a legal challenge by Michael Lloyd, 76. Lloyd's challenge was backed by Stroud Against the Cuts and other community groups. Nine NHS hospitals and 3000 district nurses, health visitors, podiatrists, physiotherapists and others were at risk of outsourcing.

When the case got to the High Court, NHS Gloucestershire was forced to back down and sign a consent order. They agreed to halt plans and go back to the drawing board.

How did campaigners achieve this extraordinary result?

Essentially, lawyers argued that the healthcare that Michael Lloyd received would be damaged if services left the NHS. They used existing procurement law to argue that the Primary Care Trust could not just "give" services to a body (that include social enterprises) outside the NHS without a competitive tender. They argued that health bosses had acted unlawfully when they ruled out NHS options without proper consideration. The PCT crumbled and failed to defend the claim.

Local anti-cuts groups had realised that the term ‘social enterprise’ (really, a ‘Community Interest Company’, or CIC) was being used by local health bosses to disguise backdoor NHS privatisation in Gloucestershire.

A CIC is a private company. Compared to the NHS, a CIC has higher tax liability, wasteful reorganisational costs, no internal democracy or external accountability and is required to turn a profit. Cut loose from NHS financial and administrative support, CICs would be forced to compete as minnows in a shark-filled sea – which never ends well. The only way for CICs to survive and compete is to cut corners and services and staff terms and conditions (as revealed in a secret KPMG options appraisal which was disclosed in court).

NHS Gloucestershire bosses ignored strong staff opposition to their plans and deliberately evaded public scrutiny - while brazenly talking about ‘greater ownership’ and invoking ‘the spirit of the Rochdale co-operators’. A horrified senior figure in the co-operative movement described the plans as ‘a management buyout without the cash’.

Lessons for other campaigners

A clear lesson from the Gloucestershire case is that what all PCTs can (and should) do is try and find a home for health and care services inside the NHS, in existing or new NHS Trusts, without needing to tender. NHS options have been chosen without tender in most other places (even since the passing of the Health and Social Care Act - though expect devious moves ahead).

Circumstances on the ground will vary, so if you want to try using the law to halt privatisation, you need to consult solicitors without delay. We used the excellent Leigh Day & Co.

You will also need a claimant who uses the services, is willing to be named publicly and who is eligible for legal aid (like Mr Lloyd in the Gloucestershire case). You will be expected to raise some funds as a community (we raised £7,000) and to be prepared for hard work and research.

Another line of attack is consultation - or, more specifically, failure by "reformers" to consult with people about proposed changes. The law is weak, but if health bosses have plans to change NHS services, PCTs/Clinical Commissioning Groups must at least ‘involve’ the public.

If you do decided to pursue the "we haven't been consulted" route, you can expect "reformers" to claim that services ‘aren’t changing.’ You can also expect to be told that misleadingly advertised ‘stakeholder events’ to which hand-picked people were invited in fact amounted to ‘involving’ the public. Again, it is worth talking to lawyers, because these claims deserve challenging as far as possible - both in law and in the media.

Above all, remember the NHS privateers' main weapon everywhere is secrecy (or misleading rhetoric). Shining a light into the dark corners of decisionmaking is essential. It may reveal enough evidence of unlawful actions to take a court case, or rouse public opinion to an extent which will force a rethink. All these things help campaigners elsewhere.

The time to act is now

Ask tough questions of PCTs (who are still responsible for a year) and the new shadow clinical commissioning groups about their plans now. If they are going to try and privatise, they should at least have the decency to tell us!

Remember - if anyone tells you they are legally obliged to tender services currently in the NHS, ask them to put that in writing, tell us, and talk to lawyers! Local health bosses are under undoubted political pressure to tender out services, but ultimately it is their choice, and ours to influence any way we can.

Beyond the courts

A legal case in itself can only halt a flawed, unlawful decision. It buys time for a political campaign to make health bosses do the right thing and to keep our NHS public. In Gloucestershire, several demonstrations (there were 500 people at the largest), regular public meetings with up to 350 people, film nights, letter writing, pledges, postcards, lobbies of elected representatives and board meetings, as well as town leafleting and working with unions, have all helped raise awareness and funds. The campaign is ongoing.

“The key aim now is to get the PCT to heed the popular will, and also to get another NHS body to come forward to take over services,” said James Beecher, Chair of Stroud Against the Cuts, who estimates that nonetheless, 5 or 6 strongly committed local campaigners is enough to make a difference "and to focus the support and feelings of hundreds if not thousands more in their communities."

There are battles ahead to be fought – and won. To save the NHS, we need to find out what privatisations are planned, let people know, and make as much noise as we can to stop them, whether in court, in your local papers, on the streets, to our elected representatives, or where the privateers themselves are doing their business. In a possible taste of things to come, the last week has seen both Virgin stores and a Gloucestershire NHS privateers conference shut down by protestors.

Meanwhile the last word should be left to Mr Lloyd - who is old enough to remember a time before the NHS, before ‘”freedom from fear”. He says simply “The NHS isn’t perfect, but it’s a lot better than the American-style system they are trying to introduce. There is no place for the market in the NHS.”

Caroline Molloy is a campaigner with Stroud Against the Cuts.

See also: Richard Blogger on Where to now with the NHS and Stone Soup: how campaigners can work together to share information and campaigning work. Eoin Clarke at the Green Benches also has very good posts on getting involved to halt the privatising of the NHS

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