The government is pushing its NHS legislation through Westminster under cover of ignorance. It refuses to release information that the Department of Health already holds about the risks involved. It has also appears to have failed to ask some obvious questions in the first place. The latter includes not examining the success or failure of health reforms elsewhere.

Last week the government fought off a motion in the House of Lords criticising its attempts to obfuscate. The motion asked the government to reconsider its appeal against an order from the Information Commissioner. The commissioner has ordered the Department of Health to publish its register of risks regarding the NHS reform programme. The commissioner said there was ‘a very strong public interest in disclosure’ of the government’s analysis of the risks to the NHS caused by the reform programme. There is a belief in Westminster that the government will use legal processes to delay the release of this information until after the House of Lords has finished reviewing the bill. The expectation is that wilful ignorance will assist Liberal Democrat peers to continue voting for the bill.

It also appears that the government undertook no comparative international research before drafting its NHS reforms. This could be because the current secretary of state is generally a sceptic about the views of foreigners. Or it could be deliberate – intended to avoid any embarrassing intelligence. Either way, it has had the desirable outcome from the government’s perspective of limiting criticism of the health reform proposals.

In the main House of Commons debate, there was roughly five minutes’ knockabout discussion of international health outcomes produced by the chief economist of the King’s Fund, John Appleby. The King’s Fund is an independent health thinktank. Andrew Lansley, the secretary of state for health, claimed the results demonstrated the urgent need for health reform. John Healey, the then shadow health spokesperson, said it showed the precise opposite. There was no discussion whatsoever as to whether or why critical individual elements of the government’s health reform, such as the adoption of competition law regulation,  the abolition of strategic health authorities or the switch to clinical commissioning groups were approaches that had succeeded or failed elsewhere.

Debate in the main chamber is often more theatre than substance. More worryingly, this absence of international review was not remedied in the House of Commons health committee. In the committee, where the bill was examined line by line and where they have power to call witnesses, there was only a slightly greater effort to look at developments abroad. In the 98 hours of the first session of 28 committee meetings, no foreign witnesses were called whatsoever. About half an hour of the 98 was devoted to the views of English experts on international developments.

The government’s claims with respect to general health outcomes appear to be highly contestable. Spokespeople from the Nuffield Trust and the King’s Fund, both independent health tanks said that in their view international comparisons did not suggest that the NHS was ‘broken’ in the way that the government claims. Dr Anna Dixon of the King’s Fund said: ‘the evidence from our comparative study suggests that the NHS has performed well by international standards and has done so at a much lower cost than other health systems. You would not undertake a major new reorganisation of the health service on the basis of international comparison.’

They also told us that they were not aware of any research by the Department of Health into the extent to which foreign experience supported or cautioned against major elements of the reform. Dr Anna Dixon of the King’s Trust told us that the only comparative work that she thought had influenced Andrew Lansley looked at the privatisation and liberalisation of UK utility industries.

Department of Health press officers were unable to confirm whether any research on international comparators had been undertaken.

This is in stark contrast with Germany. When it undertook health reforms in 2007, Dutch politicians were invited to address the German parliament. Dutch pundits and the views of German experts on developments in the Dutch health system were widely quoted in the German press. The Netherlands had adopted major reforms in 2006, some of them similar to those planned for the UK.

It is also in contrast with the United Kingdom itself. For example, when the previous government was considering reform of the UK postal sector, it commissioned comparative international research from the National Audit Office into how universal services might be protected in a privatised industry.

This failure to look beyond existing UK experience could simply be cultural. Such a view would be supported by the failure of the British media to investigate this either. A Nexus search reveals that there have been 2750 articles in the UK national press on UK health reform in the last year.  Approximately 3 per cent mentioned foreign countries. Looking in detail at the nine articles which mentioned the Netherlands and the 28 which mentioned Sweden, two countries with recent reforms in healthcare, the finding is that only two of those articles examined any specific aspect of health reform.

The King’s Fund and the Nuffield Trust have recently published reports focusing on some of the foreign lessons for NHS reform. The King’s Fund published a report in November on economic regulation in health care. On the basis of developments in the Netherlands, one of its findings is that the design of competition law regulation in the Netherlands has negatively affected integrated care. This is because providers have become excessively cautious about the level of cooperation which is permissible under a competition law regime. The report suggests that if guidelines on how Monitor will apply competition law in the sector were adopted, this could serve to remove potentially damaging uncertainty in the UK.

The implications of competition law regulation are wider still. The King’s Fund recommendation of guidelines appears to be based on the assumption that competition law is a known quantity and applied in the same way everywhere. This is not the case. Competition law as it is applied in practice in any complex sector gradually evolves as practitioners come to understand the economics of a sector (which in turn is partly a function of the actual behaviour of individuals and institutions within that sector).

Stephen Kinsella, a partner in the leading law firm Sidley Austin, said ‘There is a widely-held misconception that competition law provides a ready-made template. It is better described as an approach. As a discipline, it still quite new and the economic theories on which it is based continue to give rise to some unresolved contradictions. These contradictions have the effect of giving competition authorities a policymaking discretion. It is notable that there are large differences in the application of competition law between the United States and Europe. Even within the European Union, competition authorities apply ostensibly the same law in different ways. Competition authorities get a lot of things right but they can also get things badly wrong. What is happening to the NHS can only be described as an experiment’.

The government intends that Monitor become the economic regulator for the sector. Until the new legislation is passed it only has an advisory role. Monitor has recently advised that primary care trusts should not attempt to guarantee levels of demand for NHS hospitals by rationing use of private hospitals. It says this would breach competition law if it was applied. And that such breaches would only be defensible if the PCTs could prove that economies of scale or scope existed in the provision of hospital services and that without a guaranteed level of demand NHS hospitals could not finance these services.

If the government had carried out comparative research into competition law itself, it would have found that the European Court of Justice has on occasion rejected the kind of ideological approach which Monitor has adopted. In some cases it has placed an onus on competition authorities themselves to prove that opening a public utility to competition does not create the risk of bankrupting critical public services. Such data is not readily available in the NHS, would be onerous to generate and currently it is no one’s job to produce it. The approach taken by Monitor to date suggests that once empowered to enforce competition law, it may make decisions which are not evidence-based. It should be of major concern that a competition authority is about to be unleashed on a sector in which there has been little research into cost structures. Appropriately, given the context, Monitor might be well advised to bear in mind the Hippocratic oath: first do no harm.

A headline in the Times on 22 October 1957 read ‘Heavy fog in the channel – continent isolated’. Lansley’s experiment with the NHS appears has certainly been undertaken in line with this tradition. There is a strong suspicion that the Department of Health has been busy insuring that the fog does not dispel.

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Dr Andy Tarrant is a 16 years qualified competition and regulatory lawyer and is senior parliamentary assistant to Gregg McClymont MP. He writes here in a personal capacity.

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Photo: Trades Union Congress