Tag Archives: law

Group Shot

So we all agree? (Photo credit: Jayel Aheram)

“Linda Sanders, director of social care at Hillingdon, accepted that Steven and his father had been let down by collective errors of judgment.” [from the UK Telegraph]

There is a court in the UK that belies belief that such an authoritarian and secretive judicial entity could exist in a democracy. Away from public scrutiny, legal injustices occur in the name of protecting the interests of vulnerable people. Maybe.

But what this particular case indicates, and the quote is not the whole story, is that vulnerable people can be held essentially captive (the court ruled that his human rights had been violated and he had been ‘unlawfully detained’). It is further evidence that vulnerability and disability lead to a net diminution of an individual’s rights. I worked on the legal rights of disabled people at the beginning of my career, cataloguing one of the first directories of how officialdom removes rights from individuals through a systematic and bureaucratic process, sanctioned by law, and in this case enforced by all the power of the state.

What is worrying is the director’s comment that it was ‘collective errors of judgment’.  This is grovelling code for ‘group think‘.

Group Think is a deadly force that infects organisations, and allows bad things to happen because people fail to challenge injustices, go along with the crowd, or ignore their ethical and moral compass.

Collective errors of judgment are not accidents of nature either. They arise from systemic elements in organisational design and structure, reinforced by leaders that see dissent as evidence that someone is not a team-player, where deep ethical issues are viewed as interesting but not relevant to the task at hand. It emerges when no-one looks at a situation as a whole, and asks what is going on here, and why. The old adage, would you like to see your decisions on the front page of the newspaper, on Facebook or Twitter, apply.

It is hard not to blame the culture and management of social care organisations, as this is not the first case where there is evidence of systemic failure. It revolves around how organisations form opinions about the care needs of individuals, how individuals (not collectives) arrive at those decisions and in what way, how they discourage alternative perspectives, and fail to change their views when confronted with new evidence, evidence to the contrary, or as in this case, a clear challenge to their authority. A patronising organisational response no doubt prevailed.

Group think also infects decision-making in any organisation where actions are based on an hypothesis about what needs to be done, and from which various actions flow. Getting that initial starting point wrong, means actions flowing from it are wrong. This is not a collective error of judgment, it is evidence of deep failure of decision-making processes. Other social organisations work in this way.

The way forward includes directors of social work not blaming some vague collective, but examining how decisions are made, how challenges to decisions are received and their attitude to dissent. A clue is here: an organisations that describes itself as a ‘family’ is likely authoritarian. Family language means dissent is suppressed within an organisational type that is either matriarchal or patriarchal in form.  And you know what it means to disagree with your parents.

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Surpluses (and deadweight loss) created by a m...

If only it were that simple!

The current debate in the UK, specifically England, on reforms of the publicly funded health service have raised the red-flag of privatisation. Hostility has centred in the main on private firms offering health services and the scope and meaning of ‘any willing provider’.  Signals from politicians are confusing given they are walzing back and forth across the dancefloor depending on criticisms. Indeed, there appears to be some risk that dance partners may change, as the Lambs, for instance, change sides to avoid slaughter in the arena of public opinion. Such self-interested face-saving aside, is there an issue to answer here?

Article 106(2) TFEU as a general interest exception: which involves invoking public interest grounds, specifically, “undertakings entrusted with the operation of services of general economic interest … shall be subject to the rules contained in this Treaty … in so far as they application of such rules does not obstruct the performance … of the particular task assigned to them. The development of trade must not be affected to such an extent as would be contrary to the needs of the Community.” [Community here referring the EU, not the local community.]

In operationalising competition arrangements, the EU approach is built on simple foundations, of equal treatment, and that firms given special treatment cannot also be protected through public measures which favour them.  There has always been some debate about public monopolies and what has been called ’emanations of the state’, and through it all a recognition that state organisations are deemed to have a dominant position that they cannot abuse — perhaps more importantly, state organisations delivering a service cannot be protected by the government engaging in abusive market practices simply to protect them. It is certainly an abuse for a government to create a monopoly that cannot deliver the services required.

From an EU perspective, can states create a monopoly situation simply because they want to avoid competition in a particular area of the economy? Well, presumably yes, if it is of general economic interest, and if the prohibition of competition is necessary for the resulting bodies to do their job.

The ‘get-out’ clause is whether restriction on competition is necessary for the NHS to do its job. What is the job of the NHS?

If it is to procure health services from any “qualified” provider, then it is a procurement body and restrictions on competition would not be appropriate as this might lead to contracting for services from a subset of qualified providers who would be preferred on other than a level playing field — that public and private firms compete on an equal basis. The interesting question underlying the assumption is also that there would be market failure otherwise. But one test of market failure is that there are no providers willing to enter the market. But an any provider situation presupposes that isn’t true, that firms would enter the market and provide health services. So prohibiting competition effectively partitions the market in favour of public providers and that doesn’t seem to sit with the general EU competition tests. There is a subtle change in terminology that may be political but may be important (hah!): between any willing provider and any qualified provider — being willing isn’t enough, being qualified is, but can the determination of being qualified act to restrict access to the provision of health services, as being qualified may preclude organisations that might provide care, i.e. they are willing, but currently aren’t.  A bit like the only way to learn glass is fragile is to break it, the only way to find out if an organisation is qualified is to let it offer services. Of course, with an onus on qualified, there could be a presumption in favour of legacy providers, as obviously they are willing and qualified. (How many angels was that again?)

Does the EU treaty permit monopolists to abuse their dominant position by providing a service to a level less than is needed? In other words, can the purchasers purchase in such a way as to ignore lower cost/higher service level providers in order to protect the legacy NHS providers? Not really, as that violates the simple test of neutrality with respect to ownership status under competition law.

Granted that the purchasers could argue that financial controls are necessary as not everything would be affordable for everyone all at once, but the ECJ healthcare rulings have established a base line test: would the person involved eventually get treated? Saying ‘no’ is not an option for a state monopoly health service as that is called rationing and the ECJ has ruled that such decisions must be made on the basis of international clinical evidence, not administrative niceties.

So we are left with the question whether the prohibition of competition is necessary for the NHS to provide care. This is where it is necessary to decide whether the providers of health services in England are really state-owned entities, or simply contracted-in subcontractors. GPs in England have always been private businesses, though they have badged themselves as within the NHS since 1948, unlike community pharmacies, who similarly have virtually monopolistic contracts with the government, but are more readily perceived as not part of the NHS. It seems that as soon as you create a distinction between the delivery of services from the purchase of those services, you create the basic conditions for a market, for contestability, and by definition have eliminated the applicability of the market failure argument.  So the NHS delivers services of general economic interest, but it is not necessary for the delivery of that service to prohibit competition.

That means that the competition rules apply.

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European Court of Justice
Health Reformers?

The Canadian Supreme Court ruling on private health insurance has alerted us that individual rights do matter and now they matter in health care, more than people had thought. Perhaps the greater impact of this ruling may be the emergence of legal or rights-based challenges to health policy, something the European Court of Justice has shown global leadership on.

Traditionally, health care decisions revolve around money, how much who gets and how; Canadian health politics is littered with the wrangles between the federal government and the provinces, and where has it got us?  Years of polemic perhaps about fiscal priorities, but perhaps little mileage on how to ensure Canadians get the health service they are paying for.  Other countries have been rudely awakened from this complacent slumber and found themselves faced with a steep challenge; in the UK, government spending on their National Health Service is being virtually doubled, to bring average UK spending in line with average spending in the other European countries.  Indeed, it used to be a hallmark of the venerable NHS that is was parsimonious in delivering health care, but the social costs in waiting times and waiting lists became politically unacceptable when compared with the rest of Europe.  Canadians of course compare Medicare to that the US system, and thank heaven that we don’t do that here!  But reality is of course much different, and we are learning daily now that there are things our mother never told us about Canadian Medicare, and finally perhaps the public is asking, “so, remind me again, what is we have been paying for all along?”

How do we know if we are getting a decent health system for our money?  The answer is not easy, but there are some clues.  Unfortunately, waiting lists and waiting times are indicators of resource shortages, not necessarily whether the health system is working well.  It’s a bit like heading into Home Depot to buy some paint, they may have lots of paint, great variety in the catalogues, but you need to line up to discuss the colour with one person, line up to get the cans from someone else, and third person to mix them for you, and you still haven’t paid for the paint!  Canadian health care is fascinated with hospitals, the most expensive, inefficient and labour intensive institutions known to modern society.  Not noted for being particularly safe, people get sick there while they’re recuperating from being sick.

One way to make sense of how well as health system works is to look at how well it treats new entrants, i.e. babies.  Infant mortality is a measure of the deaths of newborns, up to 1 year of age, and measured as a death rate per 1000 live births, so a number of 5 means 5 infants died in year for every 1000 babies born alive (i.e. not still births). High death rates pick up on problems associated with access to health care facilities, medicines, as well as maternal knowledge of child-rearing, diet and hygiene.  Low rates suggest the opposite.

In 1996, Newfoundland had a rate of 6.6, compared to the Canadian average of 5.8.  Nova Scotia had a rate of 4.9, while Nunavik Region in Quebec had a rate of 22.9.  In Ontario, Quinte area, rated by some as one of the best places in Ontario to live, had a rate of 6.8, Northwestern Ontario at 8.6 with the lowest being Halton/Brant at 3.9.  As we head west, Manitoba sits at 7.3, Saskatchewan, the birth place of socialized medicine at 8.7, Alberta, the new driver of health system reform at 6.1 and BC at 5.3.  Nunavuk is 17.9 and the Yukon 8.7.  Quite a spread.  To put it into a different perspective, the infant mortality rate in 2003 in Austria is 4, Finland 3, Romania and Argentina 17 and Colombia at 21.

So, once we survive that first year, how long will we live?  In Canada it is about 78.3 years of disability free life (1996 data).  But the best place to live if you’re a woman is BC with 81.8 years, and the worst place is Nunavut for men at 69.8.  Does the health system have any impact on how long we live?  Probably not, as most people’s encounters with the health system are around accidents and child birth, and the regrettable tenure we endure in our final days when the system’s heroic efforts to keep us alive gradually fail.  Most health system expenditure is incurred within the last 6 months of life, we just know when those last 6 months are.

Does money matter?  Well, you’d think it did, but there isn’t really any accepted correlation with how much a country spends on health care and the results it gets for its spending.  Canada spends a lot of money percapita (per person).  Newfoundland is the biggest spender, at $2151 per person along with BC at $2157, and PEI the smallest at $1718 and Quebec at $1760.  This money is being used to buy the same sorts of things in all these provinces, with varying degrees of success in meeting public expectations and service standards.  But it is how we organize those resources, well or badly, that determines whether we get good value for our spending.  The case may be building that the problems with Medicare are problems with design, the choices we’re made on how to organize it.  The main problem in my view being this fascination with hospitals and the bottlenecks created through them in accessing diagnostic tests for example.  Most countries trying to reform their health system, believing it will improve the statistics mentioned above, are trying to reduce expenditure and use of hospitals, and move resources into the community where the focus is on greater real-time engagement with people to help them maintain their health, rather than respond with a ‘sickness service’.

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Quebec City
Quebec City, Quebec: is this where a revolution in Canadian healthcare began?

The ‘perfect storm’ as the Canadian Medical Association (CMA) so wisely observed, gathers strength, most recently with the endorsement of private health insurance. Health system leadership and politicians have let the system fail on their watch; we face disrepair, and the risk of catastrophic failure.Canada’s relatively unique position, with a front window view of the US health system, has dulled our creative thinking and we have fallen into a false complacency, deaf to the cacophony of reform happening in other parts of the world.  Perhaps, they were paralyzed by the fear of creating a US-style health system.  But times change.

There are two lessons from the Supreme Court’s ruling on Chaoulli v Quebec.  The first is the failure of expert testimony to the Court to provide any evidence from any other health system in the world (!) that private health insurance should be avoided at all costs.  World renowned expertise failed to provide the evidence that health systems with private health insurance were to be avoided: just tell that to the Dutch, the French, the Germans, just about anyone else for that matter.  But perhaps not the Norwegians, who have a 100% publicly funded health system, and the longest waiting lists in Europe, so long in fact that they have a so-called ‘patient bridge’ programme to fly patients to Germany for treatment.

The second is that government policy can be tested against the Charter.  To paraphrase Richard Titmus, the sociologist and political theorist, a health system is a poor one when it fails to meet the needs of all.  The collectivist rhetoric that has characterized much health debate in Canada, and is a broad theme running through the Romanov work for example, conceals an important shift in contemporary values which has not been fully grasped in Canada.  Perhaps until now, that is.

Other countries have had to come to grips with changing public thinking and are making the movement, albeit slowly, and not always happily, to a new interpretation of the social contract: namely, that governments have no pre-emptive right to deprive individuals of their constitutional rights just to achieve collective social objectives, such as Medicare, and, perhaps more subtly, governments have no right to create monopoly suppliers of public services that manifestly fail to meet the needs of the public.  So services that are underfunded, underbuilt, but publicly funded or delivered are no longer defensible simply because they are public!  Therefore, governments have a new problem, concealed within this Supreme Court decision, that of learning how to provide services that the public will value and use.  It is no longer sufficient to argue that the proper role of the state is to provide public services, if they cannot do it well.

I’d like to think that this new world would be liberating for governments, but perhaps they like to meddle and tinker rather than provide strong leadership and direction, and importantly social purpose to public service institutions, like health care for example.  As was said it seems so long ago, by Osborne and Gaebler in their book Reinventing Government, governments should steer and not row. Put more elegantly by Mario Cuomo, former governor of New York: “it is not government’s obligation to provide services, but to see that they’re provided”.

The debate over private health insurance must not conceal the real problem, that the public purse is financing at federal and provincial levels, health systems in the various provinces that are manifestly failing to deliver value for money, or indeed a service Canadians will value and use.

Where can we look for some ideas?  Often a source of inspiration in welfare state reform, the United Kingdom has embarked on changes that will virtually reinvent the public service ethos there.  Under the banner of ‘consumer choice’, they are reinventing their National Health Service by giving consumers choices in how, when and from whom they receive public services, largely putting to rest the many tired arguments about whether patients cannot exercise informed choice in health care.  One consequence of this is greater private and voluntary sector involvement in service provision. In health care, the shift is virtually seismic, with the dismantling of the NHS as a ‘provider driven service’, characterized by services dictated by what the hospitals and other care providers can or want to do when and how they want to do.  The new ‘patient-led” NHS is focused on buying (what the British call ‘commissioning’) those services, responsible for doing what Cuomo says: ensuring that the health services that are provided are timely, convenient, and to high standards.  We in Canada have a lot to learn from this, as we try to avoid consumer demand, or protect acute care hospitals from the primary care revolution.

Governments can only tax with the will of the people, and when taxes produce substandard levels of service, inconvenience and delay, the public is right to call the government of the day to account.  Increases in taxes cannot be justified unless there is demonstrable improvement in service, and increased value for money. The UK is exploring this new territory, and rethinking in particular how its health service will work.  Funnily enough, much of the impetus for this also came from rulings of the European Court of Justice.  What they have learned, though, is that the government has no moral right to be a monopoly supplier of public services.  Choice is the hallmark of public sector reform there, and offers Canada lessons for its own restructuring.

Will an emphasis on private health insurance be the solution?  To adopt the position that private health insurance is the solution to a failing public system is to abandon the principles that are the logic of an effective system of health care. But countries which have wide-spread use of private insurance, such as Netherlands, Germany or France, also have integrated principles of private insurance into their national health system.  Interestingly enough, these countries also show the value in putting money into the hands of patients and consumers to reinforce the value of their health care decision-making  The private insurance market in the UK is an opt-out from the national system, not a complement to it, and as the reform of the NHS has quickened, the private health market has shrunk.  Other countries have had more success with mixed insurance models and do not appear to have fallen apart or suffered from widespread social inequality, indeed, the WHO rankings would suggest the opposite, with Canada ranked well down after France, Spain, and Italy.

The best direction for new thinking, therefore, is to look for reforming ideas which endorse greater consumer choice, greater consumer purchasing power whether through private insurance or through commissioning reform.  But purchasing choices require greater flexibility in how health services are delivered and this debate is, as Senator Rigby as observed, full of mythology.In the end we need a fully integrated public/private health system.

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