Out of sight, out of mind?

Why NHS 'top up' reform will affect all NHS bodies

19 November 2008

The 'end of the NHS as we know it' (according to some) might have attracted greater public attention if it had not been announced on 4 November 2008, the same day as the US presidential election.

The problem was obvious: a free NHS can’t provide everything for everyone, but it was Department of Health policy that you could not be a private and an NHS patient in the same episode of care, so if you pay privately for something that the NHS will not fund – the latest expensive cancer drug, for example – you risk losing entitlement to all NHS care for that condition. It is easy to see why this caused great media interest and public outrage in high profile cases, not soothed by the fact that some Trusts softened the effect with a more generous interpretation of the policy, adding another layer to the perceived “postcode lottery”. Professor Mike Richards (“the Cancer Tsar”) was asked to review the issue and quickly concluded that the strength of feeling made the status quo untenable.

The solution, however, is less obvious, especially with the spectre of patients in neighbouring NHS beds receiving different treatment for the same condition according to the depth of their pockets, rather than clinical need.

To avoid this, Professor Richards recommends an approach, already accepted by the Government with immediate effect, which is built on the principle of “separateness”: a patient will not lose entitlement to NHS care if they privately top up their treatment as long as the extra treatment is administered separately from the NHS care – quite literally, in another part of the NHS hospital set aside for private patients, or in a private clinic. You will also have to pay for any associated costs of that extra treatment, ie tests, follow up and management of any complications.

A few issues are immediately obvious:

Is it practically possible to separate costs associated with an extra private treatment in this way? How can unpredictable consequences, like (private) drug side effects, be distinguished from effects of other (NHS) drugs?
Given that uncertainty, will greater involvement of private providers at the same time as NHS care lead to more litigation over where liability lies, or the effect of any indemnity, when things go wrong?
Powerful as the image is of different treatment in neighbouring beds, does it really make any ethical difference to wheel one patient down a corridor to have their extra treatment out of sight?
Will the insistence on separation of care, to protect these sensibilities on (perceived) inequality lead to discontinuity of care, in a way that is avoided at all costs in every other clinical context, given the obvious problems for communication, clinical governance and patient safety?
Will separation of follow ups / test etc to ensure payment is made for those associated with the private treatment mean duplication of time and resources, as often the same NHS staff will be delivering both parts of the care, not to mention the challenges of assessing and enforcing these charges?
The definition of the key concept of separateness is unclear, making the scope of the new policy uncertain. The example given in the report says that a privately purchased additional drug (and all associated treatment) can be permitted as separate, but an upgraded cataract implant cannot be bought as it is inseparable from the NHS operation. This seems counter intuitive.

To be fair to Professor Richards, the central thrust of his report (significantly titled “Improving Access to Medicines for NHS Patients”) is that fewer people should find themselves wanting to pay for a private top up, though this relies on a fairly wishful combination of pharmaceutical companies dropping their prices, and quicker and “better” decision making by NICE and funding PCTs. The implication is that saying “yes” to funding a drug is a “better” decision than saying “no”, but of course the NHS will still have to balance the books.

Doctors should explore all NHS funding options before advising on a private top up, but this has real practical problems. Any clinician must advise of all appropriate treatment options at the outset, and a patient in extremis may not want to wait while a PCT reviews exceptional funding. Will the PCT’s decision be affected by private payment already being in place? Will patients seek reimbursement? How will vulnerable patients be protected from “snake oil” sales or the temptations and financial pressure of treatment they can’t afford? How ruthless will the NHS debt collection be where top up treatment is started and then funds run out (or the patient dies before payment)? How can NHS doctors advise on the costs / benefits of private top up drugs without becoming surrogate marketing for those drugs companies, and will this tempt more staff away from the NHS and into private practice?

Just like the Darzi review, this adds to the pressure on PCTs to review and reform their commissioning and exceptional funding policies, collaborating where possible, and they will need to be careful about taking advice on getting this right.

But clearly the implications of the new policy will reach far into every organisation that provides NHS care as well, raising issues of efficiency, clinical and financial governance and patient safety, as well as redrawing the doctor / patient relationship to some extent, making healthcare more explicitly a commodity.

Although draft guidance has been published and is out for consultation until 27 January 2009, the questions are only about the implementation of the principle of separate care, and the policy change is a done deal. We will have to see how the far reaching implications unfold across the whole NHS, private medicine, pharmaceuticals and insurance industries.

For more information or advice, please contact Ben Troke or Simon Tait.

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