The OFT will oversee NHS mergers. What does that tell us?


The Office of Fair Trading (OFT) yesterday published guidance on its role in adjudicating the mergers of NHS Foundation Trusts (FTs) and other NHS bodies.

A reading of the announcement, and of the ‘FAQ’ that it links to, reinforces much of what most worries (or if you’re not worried by it, you should be) NHS observers and activists about the way this government views and treats the NHS – and reveals a few new bits of information that do nothing to reduce those concerns.

What’s in a name?

A lot, really. The Office of Fair Trading tells you all you need to know, in a nutshell, about how this government regards health care – a business matter, a financial transaction. A trade, But let’s ‘unpack the nutshell’ a little.

‘It’s independent, Jim, but not as we know it!’

The OFT styles itself as ‘an independent competition authority’. However, for all its supposed independence it seems to have swallowed the government line on what’s good for us hook, line and sinker. Sheldon Mills, the OFT’s ‘Director of Mergers’, is quoted:

Preserving choice and competition can lead to better quality clinical outcomes for patients, as well as providing greater value for money for the taxpayer and commissioners

I don’t know about you, but to me that could be lifted straight from a Tory party campaign leaflet, or any of Andrew Lansley’s statements in the run-up to the Health and Social Care Act (NSCA), or any of Jeremy Hunt’s since.

(There seems to be a lot of it about, this business of entities calling themselves ‘independent’ while pushing a distinctly Tory line, especially where it concerns the NHS!)

The idea that competition is good for healthcare is simply stated (or regurgitated) as fact, with no hint that there are divergent opinions on the matter – and there are many.

It’s just business

In speaking of the entities under its remit, the OFT describes them as

NHS foundation trusts and other businesses.

It’s well-known to those who pay close attention to what goes on in the NHS that Foundation Trusts are indeed intended to be run as businesses (although slightly odd ones). But this isn’t obvious to those merely observing casually. To see it stated so baldly should serve as a wake-up call to anyone who, like me, believes that hospitals should be run on other principles than those of business and profit – and to pose the question as to what the government’s intent is in forcing every NHS Trust to become an FT by 1 April 2014.

What makes a ‘good’ merger?

In its ‘frequently asked questions’ document, the OFT poses itself the question

How will the OFT take into account the clinical and financial circumstances affecting the merger parties?

(emphasis mine)

But the resulting answers do not touch at all on the clinical results of a merger. The only things addressed are effects on competition. The OFT begins its answer

The OFT considers the effect of the merger compared with the most competitive counterfactual [alternative scenario] providing always that it considers the situation to be a reasonable prospect.

The only mention of clinical considerations is that the OFT says it might consider a merger that might otherwise be judged uncompetitive if

one of the merging NHS providers is failing to meet its duty to provide high quality and safe services to patients within the funding that is available..

In other words, if a hospital is failing, a merger might be allowed even though the merger is considered ‘uncompetitive’ – but if a hospital is not failing the clinical consequences for the people it serves are not even a factor in deciding whether the merger can proceed, as long as the competitive aspects are considered satisfactory.

So much for ‘taking into account the clinical circumstances‘. There is no room for consideration of whether a merger might be clinically worse for patients than what they already have, or of other adverse factors such as travel distance if a merged Trust decides to close their local hospital.

No, it seems that the OFT is so sold on the idea that competition is automatically good for patients that nothing else comes into the frame when it will make its decisions.

As if to banish any lingering doubts we might entertain about just what a hospital is, in the OFT’s ‘independent’ worldview, it adds this, when speaking of its criteria for judging the permissibility of a merger:

what would have happened to the sales of the business in the event of its exit

and refers to patients as ‘customers‘.

Apparently, the OFT is so convinced of the idea that competition is automatically good for patients that no other factor really matters, and wider considerations of what is good for patients barely figure.

For example, when listing the factors to be considered when deciding whether to refer a proposed merger to the Competition Commission (CC, which will soon become the ‘Co-operation and Competition Directorate‘ of NHS regulatory body Monitor), the OFT considers

whether an NHS merger between such providers is likely to reduce competition between providers of these services

worthy of its own section in the guidelines. But when it comes to what’s good for patients, only

patients’ willingness to travel

is considered, and only as one of a list of several criteria. Not whether it’s good or better for a patient to have to travel further, but whether they’re willing to do so – as if you have any choice in the matter if you’re ill and the treatment you need is a distance away.

The document does say that it will consider

views of local patient networks, relevant commissioners, and local health boards

but that’s only ‘consider’ – there’s no commitment to respect those views or wishes, and it’s only the views of ‘patient networks’ and not the good of individuals affected.

Since, as we’ve already seen, the ‘clinical and financial‘ circumstances to be taken into account in deciding to approve or block a merger are, in reality, only financial, it’s clear that the wishes of patients are really very far down the list of priorities.

So much for ‘choice’.

The clincher

The FAQ document refers to a decision the OFT has taken with regard to a merger as an example for NHS bodies to use as a guide in considering mergers. This example – decision ME/5351/12 on a proposed merger between Poole and Royal Bournemouth & Christchurch Foundation Trusts – provides a perfect illustration of the lack of genuine concern for patient safety and benefit.

However, since a key concern already outlined above is that a merger might be approved without considering whether it’s good, surprisingly the Poole/Bournemouth decision provides its illustration by not approving a merger. But the point is still clear.

The OFT’s decision acknowledges frankly that not allowing the merger to go ahead is likely to have adverse impacts for patients and potential patients:

absent the merger, each of them would need independently to work closely with their commissioners to establish how they can best achieve balanced budgets whilst causing the least detrimental impact to the delivery of patient services.

In other words, if the two Trusts do not merge, they argue that the only alternative will be ‘damage-limitation’ – finding the ways of meeting budgets that are ‘least detrimental’ (but not not detrimental!) to patient services – or, even more briefly, ‘If we don’t merge, patients will suffer!’

Whether or not this assertion by the Trusts is actually correct, the OFT doesn’t query or contest it.

But in it’s decision, at the end of a very long document, the OFT decides to block it anyway, and refer it to the Competition Commission because it has concerns over the impact of the merger on competition.

It accepts that not merging will be worse for ‘patient services’ – but blocks the merger anyway because competition trumps what’s good for patients.

If there was any doubt that what’s really at the heart of the way the government has ‘reformed’ the NHS via its HSCA 2012 is finance and profit, this surely removes every last trace of it.

Whatever lip service is given to competition as a way of improving patient choice and healthcare standards, when it comes to the crunch under this government and the Act it forced through in spite of outspoken disapproval from patient groups and all professional healthcare bodies, financial and competitive considerations beat clinical concerns and patients’ interests. Hands down. Every time.

It is said, ‘by their works you shall know them‘ and ‘actions speak louder than words‘. This government will say any old thing to shore up its rotten-to-the-core claims that the NHS is safe in its hands and that it has only the best interests of patients at heart – but if you ignore the words of Cameron, Hunt and co and look at what they’re actually doing via their legislation, the truth is inevitably clear:

The Tories hate the very ethos of the NHS and are doing everything they can to turn it into an enterprise devoted to making money instead of institution dedicated to providing the best possible health-care ‘free to all at the point of need’.

(If you want to help defend the NHS against the government’s sometimes obvious and sometimes creeping privatisation, please visit my CCGWatch page and consider making a donation.)


Launching CCGWatch: please help ‘crowdfund’ NHS privatisation-prevention

It’s always been a point of pride and principle for me that I’ve never taken a penny for any of my writing or activism. It’s a matter of personal passion and conviction that has led me to devote virtually every spare moment to researching and writing, contacting experts and MPs, travelling to meetings etc.

It’s cost me money, but I have never even taken expenses – I believe we need to put our time and money where our mouth is to defend what’s important. But I believe it’s now necessary to depart from my usual rule in one very specific area, and I’m hoping you’ll help.

If you’ve visited my ‘SKWAWKBOX‘ blog, you’ll know that the NHS is under sustained, concerted attack by the Tory-led government, which is using every means possible to erode, dismantle, wither and sell off the UK’s greatest social achievement. The attack is based on ideology and greed – and a complete lack of concern for the wellbeing of ordinary men, women and children.

In April, one of the most major and far-reaching changes kicks in as the new Clinical Commissioning Groups (CCGs) become responsible for commissioning all health services in their local area. Through its ‘Section 75’ secondary legislation, the government is trying to force CCGs to include private healthcare providers in every bid for services.

But even if this move is defeated, CCGs will be under significant pressure to include private bidders in tenders for health services – and to award contracts to those private, profit-taking companies. Private health providers have already attempted to gain influence over CCGs by creating joint ventures with GPs that will participate in CCGs, and the government has a clear preference for ‘marketising’ the NHS.

Monitor (the regulatory body that oversees NHS services) will impose a ‘lowest-cost’ interpretation of the Health Act’s ‘best value’ provision, even though a true NHS provider – which doesn’t take profit out of the NHS funds and will keep health facilities in public ownership – will inevitably represent true best value. Once gone, true NHS bodies will be lost permanently and replaced by private bodies subject to profit targets and the vagaries of market forces.

The scale of the problem

With over 200 CCGs taking over the commissioning of services from April, it will be incredibly hard for the public and health workers to know what’s happening with regard to their services in time to do anything about it effectively – and extremely difficult for activists to have a clear picture of what’s going on, let alone to co-ordinate action.

But there is still hope. A couple of weeks ago I discussed with Shadow Health Secretary, Andy Burnham:

The NHS Constitution

The NHS Constitution gives statutory rights to patients and public, and places specific, statutory duties on NHS bodies. The rights include:

  • to be involved in discussions and decisions about your healthcare, and to be given information to enable you to do this. (NB: not just treatment, but wider healthcare)
  • to be involved, directly or through representatives, in the planning of healthcare services, the development and consideration of proposals for changes in the way those services are provided, and in decisions to be made affecting the operation of those services

In addition there are (non-statutory) commitments that form part of the constitution. These include a commitment

to provide you with the information you need to influence and scrutinise the planning and delivery of NHS services (pledge); and to work in partnership with you, your family, carers and representatives


to engage staff in decisions that affect them and the services they provide, individually, through representative organisations and through local partnership working arrangements.

The document also places expectations on anyone working within the NHS:

  • to play their part in sustainably improving services by working in partnership with patients, the public and communities
  • to view the services they provide from the standpoint of a patient, and involve patients, their families and carers in the services you provide

Based on these rights, duties, commitments and expectations, I believe that it will be possible for the right person or group to:

  • engage with local communities and unions to be named as a ‘representative’ to allow a legally-underpinned interaction with CCGs
  • require of CCGs to provide timely information on any plans to change how services are provided, especially details of planned tenders or approaches to the Any Qualified Provider (AQP) marketplace
  • work with local communities and unions to demand representation on the CCG and involvement in both discussions and decisions about awards of contracts to provide NHS services
  • demand that ‘best value‘ is applied in its widest sense of long-term sustainability, public ownership, community impact (through lost wages and restricted services due to private companies taking a profit margin etc) and the retention of public NHS personnel and infrastructure that, if lost to a private provider, will be very hard ever to reacquire or rebuild
  • provide a central, easily-accessible source of information for individuals and community action groups to know what their CCGs are doing or planning and a partnership to help co-ordinate the above actions
  • challenge awards to non-public entities

If these rights and duties can be effectively harnessed, they will provide the means to prevent, or at least seriously impede, the government’s back-door sell-off of the NHS to private health interests that will seriously harm the interests and wellbeing of ordinary people until we can oust our odious excuse for a government in 2015.


With a view to this, I am launching CCGWatch. If I can get it off the ground, CCGWatch will:

  • build contacts with local unions and activists to engage them in the process
  • contact every CCG to remind them of their statutory duties and to require them to provide information on their activities and tenders
  • publish details of tenders, bidders and decisions
  • co-ordinate resistance to the transfer of services to private providers based on the information obtained as a legal right

Can you help?

It will take a lot of time and resource to start and maintain such a service – to do it properly will be a full-time project and might also mean employing others once things are fully up and running. There will also be significant costs involved in travel to meet local community groups, unions and CCGs, in communication and possibly in legal expenses if CCGs or private providers contest the involvement of local people.

To meet this challenge, I’ve decided to try to crowdfund the project, so that I can devote myself to it full-time for the next couple of years leading up to the 2015 general election. If successful, this will provide a powerful statement to politicians and clinical commissioners of the public’s commitment to the NHS – and it will fund what may be the best chance of minimising the impact of the government’s attrition of genuine, public health-service provision between now and the next general election.

To this end, I’ve set up a crowd-funding page. If you’re a believer in a national NHS that is truly publicly-owned and that will continue to deliver health-care ‘free to all at the point of need’ as it was founded to do – and if you think that the idea I’ve outlined is a worthwhile effort to help preserve it – please click the link and donate what you can. Any amount, great or small, will be a massive help.

If I’m unable to gather sufficient funds to make the project work, I will donate every penny collected to health- and disability-related charities, and will give the idea to any non-profit entity that can make it happen.

If I am able to collect enough to run the project, I will take professional advice on how to set up the finances for best efficiency and transparency, and will set up a section of this blog for full reports on funding received and how it is spent. I believe transparency and integrity are essential to combat the deceptions and misleadings this government employs to achieve its ends, and I want supporters (and opponents, for that matter) to be able to see how every single penny is raised and spent.

Thank you for your help if you choose to offer it, and for reading this far even if you don’t.