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Choosing to profit: how private NHS providers will be able to select or reject patients

Image of bloodied hand over NHS signIn Monitor's licence conditions for private health providers, Richard Blogger finds worrying evidence of patient selection criteria - the legitimising of private provider cherry-picking of patients who are most likely to be profitable:

Last year, the at the Liberal Democrat Spring Conference, the party put forward a motion congratulating itself on the Health and Social Care Bill.

Few people agreed with such hubris and the Social Liberal Forum put forward an amendment that totally replaced the motion with one that was highly critical of the Bill.

One clause of the amendment said:

14. Commissioning to be governed by a requirement/duty on Commissioners, when considering contracting with any new provider – or offering the choice of a new provider – to be satisfied that broader service stability is safeguarded and that cherry-picking and cream-skimming are avoided." (My emphasis)

This clause said that while the Liberal Democrats were happy with private providers delivering NHS care, they were not happy for those providers to choose the easy cases and turn the more complicated (and expensive) cases away to be treated by the NHS.

Independent Sector Treatment Centres (ISTC), New Labour’s attempt to use private providers, had a habit of doing this. In 2009, Allyson Pollock and Graham Kirkwood (BMJ, paywalled) said that Netcare, who were contracted to provide an ISTC in Scotland and were “paid up to £3m for patients who did not receive treatment”.

The government got the jitters about the Bill and so Cameron created the “pause” - the period where a government hand-picked committee – called the Future Forum – evaluated the Bill.

Although the members of the Future Forum were chosen for their support of the Bill, they still expressed their concerns, saying “the Bill contained insufficient safeguards against cherry-picking” (pdf).

They concluded that “private providers should not be allowed to ‘cherry pick’ patients and the government should not seek to increase the role of the private sector as an end in itself. Additional safeguards should be brought forward.”

In response to the Future Forum, the government said:

5.40. We fully agree with the NHS Future Forum’s recommendation that we need to do more to guard against providers competing on price for NHS services and being able to cherry-pick the profitable, “easy” cases, as this could undermine quality, and potentially destabilise services.

5.42. We are therefore introducing a suite of additional safeguards, including: strengthening safeguards to ensure providers are only able to turn away patients on clinical grounds if there are strong and legitimate reasons for doing so. Such grounds should normally be agreed in advance.

These statements appear unequivocal: cherry-picking was to be banned.

We now know that this is not the case.

Monitor is the new economic regulator with a mandate to drive competition in the NHS (stated as “prevent anti-competitive behaviour”). Under the Health and Social Care Act, a healthcare provider must be “licensed” before it can provide NHS care.

Monitor has drawn up the licence conditions which are now open to consultation.

Within these conditions are “patient eligibility and selection criteria”:

Condition G8 – Patient eligibility and selection criteria

1. The Licensee shall:

(a) set transparent eligibility and selection criteria,

(b) apply those criteria in a transparent way to persons who, having a choice of persons from whom to receive health care services for the purposes of the NHS, choose to receive them from the Licensee, and

(c) publish those criteria in such a manner as will make them readily accessible by any persons who could reasonably be regarded as likely to have an interest in them.

2. “Eligibility and selection criteria” means criteria for determining:

(a) whether a person is eligible, or is to be selected, to receive health care services provided by the Licensee for the purposes of the NHS, and

(b) if the person is selected, the manner in which the services are provided to the person.

This clearly says that private providers can reject patients as long as they reject them according to “selection and eligibility criteria” that they have already published. This is legitimising cherry-picking.

For example, a provider could say that they will not treat someone over a certain age, or someone with a BMI over a certain value, or someone who has a complicating condition like diabetes or asthma. Indeed, it is likely that their criteria could be summarised as “we only treat fit, health people”.

Where will the rejected patients go? Back to the NHS. This is not “patient choice.” It is provider choice - and it is designed to allow private providers to choose the easy cases upon which they can make the most profit.

Richard Blogger writes about the NHS and social policy at NHS Vault.

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