A core principle of the NHS is that healthcare is provided as a comprehensive service with access based on clinical need, not the ability to pay.
Any scheme which involves patients paying for treatment they are deemed to need appears to run counter to this principle. It is understandable, therefore, that the NHS Foundation Trust running the My Choice scheme may feel compelled to display the following notice prominently on its website in June 2019 in light of the media revelations and criticisms of “NHS privatisation” being imminent, or already here.
My Choice scheme and current media coverage
You may be aware of the current media coverage regarding the above scheme. We would like to reassure you about this.
For the avoidance of doubt, we would wish to be very clear that Warrington and Halton Hospitals Foundation Trust does not charge NHS patients for NHS treatments and we have no intention of doing otherwise.
The My Choice scheme, as described by the CEO of Warrington and Halton NHS Foundation Trust, offered a possible solution to the problem of NHS commissioners declining to fund certain elective procedures by offering these to “self-pay” patients in the local NHS hospital at the NHS Tariff rate. In other words, if a patient is not deemed eligible to receive a procedure on the NHS, My Choice appeared to offer a third option, in between not having the procedure at all, or “going private” to receive treatment from a private healthcare provider.
Whether this fits with the two common conceptions of “NHS privatisation” is moot.
“NHS privatisation” – Conception No.1: expansion of private sector delivery of NHS services and competition reforms
This more widespread understanding of “NHS privatisation” can relate to New Labour policies to develop Independent Sector Treatment Centres (ISTCs), and the subsequent expansion of private sector delivery facilitated by the Health and Social Care Act 2012 reforms by the Liberal Democrat-Conservative coalition government and the more recent Conservative governments. Expansion in private sector delivery of NHS services has been explicitly linked with competition reforms via patient choice policies under New Labour as evidenced, inter alia, by the NHS Constitution and latterly enshrined by the National Health Service (Procurement, Patient Choice and Competition) Regulations (No.2) 2013.
The ISTCs were developed to help manage NHS waiting lists. The Cheshire and Merseyside Treatment Centre referred to by the Daily Mirror as one of the providers delivering My Choice scheme services, was established in 2006 to host a private provider delivering NHS services, but has been run by the NHS since 2011. Beyond this, it would seem that the My Choice scheme does not fit within this conception of “NHS privatisation”, which is reinforced by the status of NHS patients remaining unchanged, regardless of whether their treatment is provided by an NHS or private provider. An example would be an NHS patient being transferred to a private hospital for an elective procedure (at the NHS’ expense) because the waiting list target was not met.
“NHS Privatisation” – Conception No.2: expansion of the private healthcare market to include NHS providers
A less-commonly used conception of “NHS privatisation” goes to the heart of the complex relationship between the NHS and private healthcare sector in existence since 1948.
This system requires a distinction to be drawn between “NHS patients” and “private patients”. This is because Department of Health guidance is explicit about the need to maintain a strict separation of NHS and private healthcare treatment in order to avoid even perceptions that the NHS may subsidise private healthcare. This guidance provides various illustrative examples of where and when patients may combine NHS and private healthcare treatment and how their associated status varies. In essence, it is possible to distinguish between a patient who has a hip replacement operation on the NHS but becomes a private patient for follow-up physiotherapy, and a patient who receives chemotherapy on the NHS, but makes a ‘top-up’ payment for an additional drug not routinely available on the NHS.
Thus the image of a patient “going private” may be more diverse than first thought, and the dynamics of patients moving between the NHS and private healthcare providers can vary: for example, uptake of private medical insurance and access of private healthcare is acknowledged to have declined following the economic downturn of 2008/9, but may be expected to be increasing currently at a time of severely reduced NHS spending.
How the My Choice scheme fits within this conception of “NHS privatisation” is unclear: offering patients certain procedures at the NHS tariff rate in NHS hospitals may or may not amount to the same thing in practical terms as patients accessing treatment in Private Patient Units at NHS hospitals.
The My Choice scheme: A third conception of “NHS privatisation”, or a separate controversy about “NHS eligibility”?
On the face of it, the My Choice scheme suggests an additional blurring of the distinction between the status of NHS patients and private patients.
If NHS hospitals offer a self-pay service to NHS patients for NHS services, this may effectively suggest an expansion of the private healthcare sector and development of competition on price between NHS and private healthcare providers if the NHS Tariff rate for a procedure is more favourable than the price charged by private providers. Thus NHS and private providers compete more directly.
However, the above notice by the Warrington and Halton Hospitals NHS Foundation Trust also suggests an evolving “NHS eligibility” and clarification of who can be classified as an NHS patient, thus able to access healthcare services based on clinical need.
In other words, a reduction in the range of patients eligible for NHS treatment means an expansion of the private patient body. Concerns about evolving NHS eligibility are evident in other contexts – such as foreign nationals’ access to NHS care and access to NHS Continuing Care Funding for patients with complex healthcare needs. The latter has prompted notable judicial review cases: more cases may emerge if NHS eligibility becomes less clear-cut.
It should be noted that the aforementioned Department of Health and Social Care guidance dates from 2009. Since then, the implementation of the Health and Social Care Act 2012 and the CMA’s 2014 Private Healthcare Market Investigation have done much to re-shape both the NHS and private healthcare landscapes. Revelation of the My Choice scheme would seem to underscore further that this guidance may no longer be fit for purpose.
In the meantime, patient demonstrations and the Daily Mirror help highlight what needs further review at government level, namely what a comprehensive healthcare service based on clinical need, not the ability to pay, actually means today.
This blog post draws on Dr Mary Guy’s recent article, “Between ‘going private’ and ‘NHS privatisation’: patient choice, competition reforms and the relationship between the NHS and private healthcare in England” (Legal Studies First View), and monograph, Competition Policy in Healthcare – Frontiers in Insurance-Based and Taxation-Funded Systems (Intersentia 2019).
 The controversy surrounding the implementation of the Health and Social Care Act 2012 led to an emphasis on competition on quality, rather than competition on price in respect of competition reforms in the NHS.
 The National Health Service (Charges to Overseas Visitors) Regulations 2015, SI 2015 No.238 and the National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017, SI 2017 No.256.
 For example, R. v North and East Devon HA Ex p. Coughlan  Q.B. 213,  7 WLUK 371; R. (on the application of Grogan) v Bexley NHS Care Trust  EWHC 44 (Admin),  B.L.G.R. 491,  1 WLUK 490.