There are times when, as a lawyer advising NHS bodies, I get close to advising that the law is unworkable. An example emerged the day when I had to deal with the fact that clinical commissioning groups (CCGs) have legal duties to “promote the involvement of patients and their carers in decisions made about healthcare services” under section 14U of the NHS Act 2006. They also have a legal duty to “act with a view to enabling patients to make choices with respect to aspects of healthcare services provided to them” under section 14V of the NHS act. However, CCGs also have precise legal procurement obligations under the snappily titled “National Health Service (Procurement, Patient Choice and Competition) (No.2) Regulations 2013,” which require CCGs to take decisions concerning the placing of healthcare contracts in accordance with a specific set of factors guiding the decision.
The views of patients on how and where they wish to have healthcare services provided to them form no part of the decision making process under the 2013 regulations. So if CCGs take patients’ wishes into account as a major factor in decision making they will comply with their duties under sections 14U and 14V, but will potentially act outside the framework for decision making under the 2013 regulations. Alternatively if a CCG sticks strictly to the framework of decision making under the 2013 regulations it will have to place little weight on patients’ choice and the involvement of patients in decisions about their own healthcare.
There are serious difficulties in squaring this circle because it involves a clash between NHS services as a public service tailored towards individual needs and designed for an individual (the personalised healthcare agenda) and NHS services as contracts that must be placed in the open market in a way that is fair to all potential suppliers of the services (the “NHS as a market agenda”). The CCG decision makers who are in the middle of this political and philosophical clash can look forward to an interesting year ahead.
David Lock is a barrister and QC, No5 chambers. He is a board member of Brook Sexual Health, a member of the BMA Ethics Committee, and a Honorary Professor at University of Birmingham.
Competing interests: I am a member of the Labour Party and chair the West Midlands Branch of the Labour Finance and Industry Group. I am due to become a non-executive board member of Heart of England NHS Foundation Trust, which is due to start on 1 June 2013. My wife is a doctor who is employed by Worcestershire Partnership NHS Trust.