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Benbowphd2018.Pdf This work is protected by copyright and other intellectual property rights and duplication or sale of all or part is not permitted, except that material may be duplicated by you for research, private study, criticism/review or educational purposes. Electronic or print copies are for your own personal, non- commercial use and shall not be passed to any other individual. No quotation may be published without proper acknowledgement. For any other use, or to quote extensively from the work, permission must be obtained from the copyright holder/s. A critical analysis of neo-liberal reforms to the English NHS since the year 2000. By David Ian Benbow Submitted in accordance with the requirements for the degree of Doctor of Philosophy. Keele University Centre for Law, Ethics and Society March 2018 Abstract Solidarity was important in the creation and maintenance of the English NHS, which was the product of class compromise. Its founding principles were that it was to be free (at the point of access), universal, comprehensive and primarily funded from general taxation. In recent decades, successive governments have renewed the neo- liberal project. This has involved new governance mechanisms (quasi-markets and targets) being emplaced in the NHS and private healthcare companies (which have influenced government policy) being afforded increasing opportunities to deliver NHS services. Such privatisation is antagonistic to patient needs. I undertake an ideology critique of the NHS reforms of the New Labour governments and of governments since 2010. I examine the influences on, justifications for, resistance to, and potential reifying effects of, such reforms. Misrepresentations and mystification may legitimate and obscure legal changes. I identify the ideological modes and strategies that governments have employed to justify their reforms. I also analyse several modes of reification (identity thinking, instrumental rationality, depoliticisation and the legitimation effect of law) to assess whether the reforms produced estrangement, which is the opposite of solidarity. Many of the justifications for successive reforms were contested. Although such reforms have rendered healthcare more opaque, solidarity endures. Neo-liberal norms compete with residual norms (including the NHS’ founding principles) and emergent norms (which developed due to the problems of welfare states, such as their failure to empower recipients and the persistence of health inequalities). As validity has been ii given to residual and emergent norms, which have been superficially articulated within government discourse, but which are undermined by neo-liberal policies, a legitimation crisis may arise as public experience increasingly diverges from them. I advocate amending legislation which has undermined residual norms, democratising the NHS to empower patients and the public and increased intervention in capitalism to address health inequalities. iii Contents Abstract…………………………………………………………………………………….ii. Contents……………………………………………………………………………………iv. Acknowledgements……………………………………………………………………….x. Introduction Introduction………………………………………………………………………………….1. Thesis Claims……………………………………………………………………………….7. Thesis Questions………………………………………………………………………….17. Chapter Overviews………………………………………………………………………..17. Chapter One: Healthcare in England Introduction………………………………………………………………………………...25. The Historical Development of Healthcare in England………………………………..26. iv The Creation of the NHS…………………………………………………………………34. Criticisms of the NHS……………………………………………………………………..43. Neo-Liberalism…………………………………………………………………………….52. Neo-Liberalism in Practice……………………………………………………………….63. Conclusion…………………………………………………………………………………74. Chapter Two: Ideology Critique: Methodology and Method Introduction………………………………………………………………………………...75. Marxism…………………………………………………………………………………….76. Marxist Legal Theory……………………………………………………………………...79. Base/Superstructure Metaphor…………………………………………………………..81. Positive Conceptions of Ideology………………………………………………………..84. Negative Conceptions of Ideology………………………………………………………93. Criticisms of Ideology……………………………………………………………………107. Methods…………………………………………………………………………………..109. Conclusion………………………………………………………………………………..113. Chapter Three: New Labour and the NHS (Part One) v Introduction……………………………………………………………………………….118. New Labour………………………………………………………………………………119. Private Finance Initiative………………………………………………………………..126. NHS Plan…………………………………………………………………………………130. Performance Management……………………………………………………………..133. Private Sector…………………………………………………………………………….138. Independent Sector Treatment Centres……………………………………………….146. Patient and Public Involvement……………………………………………………...…156. Conclusion………………………………………………………………………………..163. Chapter Four: New Labour and the NHS (Part Two) Introduction……………………………………………………………………………….164. Foundation Trusts………………………………………………………………………..165. Mimic-Market……………………………………………………………………………..177. Transactional Reforms and System Management…………………………………...180. Commissioning…………………………………………………………………………..181. Patient Choice……………………………………………………………………………191. vi Polyclinics………………………………………………………………………………...202. Conclusion………………………………………………………………………………..211. Chapter Five: NHS Reforms since 2010 (Part One) Introduction……………………………………………………………………………….213. Cameron’s Conservatives………………………………………………………………214. The Coalition……………………………………………………………………………..217. Austerity…………………………………………………………………………………..219. Public Service Reforms…………………………………………………………………225. Equity and Excellence…………………………………………………………………..228. The Justifications for the Reforms……………………………………………………..234. Opposition………………………………………………………………………………...240. Corporate Influence……………………………………………………………………...249. Conclusion………………………………………………………………………………..252. Chapter Six: NHS Reforms since 2010 (Part Two) Introduction……………………………………………………………………………….254. vii The Impact of the HSC Act (2012) on Norms within the NHS………………………255. Residual Norms……………………………………………………………………….....255. Neo-liberal Norms………………………………………………………………………..262. Emergent Norms…………………………………………………………………………274. The Impact of the HSC Act (2012) on the Organisation of the NHS……………….279. NHS England……………………………………………………………………………..281. Clinical Commissioning Groups………………………………………………………..284. Indicators………………………………………………………………………………….292. Privatisation………………………………………………………………………………297. The End of the NHS? …………………………………………………………………...301. Conclusion………………………………………………………………………………..303. Chapter Seven: Conclusion Introduction……………………………………………………………………………….305. Reforms in the Neo-liberal Era...……………………………………………………….305. Alternatives……………………………………………………………………………….314. Conclusion………………………………………………………………………………..318. viii Bibliography…………………………………………………………………………….320. ix Acknowledgements I would like to express my sincere appreciation to my principal supervisor, Professor Marie-Andree Jacob, and co-supervisor, Dr Mark Featherstone, for their constant guidance and support, without which this work would not have been possible. I am also grateful for the advice of Professor Anthony Bradney and Dr Kathryn Cruz who were also, albeit temporarily, my co-supervisors. I also appreciate the advice and assistance of all of the lecturers in the School of Law, Ethics and Society and the School of Social Science and Public Policy. I am grateful for the advice given to me by Dr Gillian Bailey, Dr Ruth Fletcher and Dr David Moxon prior to the commencement of my studies. I would like to thank the Arts and Humanities Research Council (AHRC) for funding my research. I would also like to thank my friends and family for their support during the three years devoted to my research project. x Introduction ‘‘Men make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past. The tradition of all dead generations weighs like a nightmare on the brains of the living’’.1 Introduction Karl Marx’s above contemplation indicates that altering social relations is not straightforward. In this dissertation, I highlight that although neo-liberalism is currently the dominant ideology, the translation of neo-liberal norms into health and healthcare, through mechanisms, such as law, has not been a seamless process. The National Health Service (NHS) was established in 1948 to provide universal, comprehensive and free at the point of access (with access based on need) health care to UK citizens who registered. It was the product of class compromise.2 In institutionalising solidarity concerning healthcare,3 it was symptomatic of what Francois Ewald described as social law, which recognises the interdependence of citizens.4 The Minister of Health who established the NHS, Aneurin Bevan, stated that it was a first fruit and that more 1 Marx, K. (1852) The Eighteenth Brumaire of Louis Bonaparte [On-line] Available: https://www.marxists.org/archive/marx/works/1852/18th-brumaire/ [Accessed: 07 October 2014]. 2 Wright, E. (2015) Understanding Class. London: Verso, p231. 3 Jaeggi, R. (2001) ‘Solidarity and Indifference’ in ter Meulen, R. et al (eds) Solidarity and Health Care in Europe. London: Kluwer, pp287-308 at p292. 4 Ewald, F. (1988) ‘A Concept of Social Law’ in Teubner, G. (ed) Dilemmas of Law in the Welfare State. New York: Walter de Gruyter, pp40-75 at p43. 1 goods and services should be delivered in ways other than the market.5 In the neo- liberal era, numerous policy and legal changes (legislation, regulations and ministerial directions) have reformed the English NHS.6 I primarily focus
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