Market reforms to the English National Health Service within the neo-liberal era have diverted money away from patient needs to market bureaucracies and the coffers of private companies and undermine cross subsidy and risk pooling within the National Health Service. Consequently, governments within the neo-liberal era have sought to remove the deleterious effects of their market reforms from political contestation through strategies of depoliticisation. I assess the success of the strategies of juridification (the increase of formal law) and new constitutionalism (transnational legal rules which restrict national policymaking to the model of liberal democratic capitalism) in depoliticising market reforms to the English National Health Service. As the National Health Service was increasingly marketised, European Union public procurement and competition laws became increasingly applicable, although scope exists for exceptions. The discretion afforded to commissioners by the regulations passed pursuant to S.75 of the Health and Social Care Act (2012) regarding tendering is disputed. Many commissioners have acted as though their discretion was curtailed in practice. However, there are countervailing forces to competition, such as resource constraints and recent moves towards integration (although this may also afford private sector companies with new opportunities). I contend that the privatisation that marketisation has facilitated appears highly politicised, as is evidenced by increased campaigning activity in opposition to it. Recent responses to the Transatlantic Trade and Investment Partnership and prospective post-Brexit trade deals indicate a heightened awareness of the ability of external constitutional constraints to restrict National Health Service policymaking. This suggests that neither the strategies of juridification nor new constitutionalism have been successful in depoliticising market reforms to the English National Health Service.
The Charlie Gard and Alfie Evans cases were high-profile cases involving disagreements between the parents of young infants and medical practitioners, which have given impetus to pre-existing calls for law reform that have been rebranded as ‘Charlie’s Law’ and ‘Alfie’s Law’. I argue against the proposal to replace the best interest test, which is currently determinative in such contentious cases, with a significant harm test, as it would render UK law divergent from international law. I also employ critical theory to rebut the notion that parents are the best decision makers and refute criticisms of clinicians (who reflexively acknowledged the limits of medicine). I utilise theories of distributive justice to demonstrate that legal reform may exacerbate unfairness, and case law to show that it may be unworkable. Nonetheless, I apply critical and Foucauldian theory to critique the lack of patient and public empowerment within the NHS and I endorse the proposal to ensure that mediation is offered in contentious cases, as this may empower patients and their carers. I also aver that the best interests test should be informed by clearer criteria regarding the allocation of finite resources, which the public should influence via the democratisation of the NHS.
The English National Health Service (NHS) has suffered from a democratic deficit since its inception. Democratic accountability was to be through ministers to Parliament, but ministerial control over and responsibility for the NHS were regarded as myths. Reorganizations and management and market reforms, in the neoliberal era, have centralized power within the NHS. However, successive governments have sought to reduce their responsibility for health care through institutional depoliticization, to shift blame, facilitated through legal changes. New Labour's creation of the National Institute for Clinical Excellence (NICE) and Monitor were somewhat successful in reducing ministerial culpability regarding health technology regulation and foundation trusts, respectively. The Conservative-Liberal Democrat coalition created NHS England to reduce ministerial culpability for health care more generally. This is pertinent as the NHS is currently being undermined by inadequate funding and privatization. However, the public has not shifted from blaming the government to blaming NHS England. This indicates limits to the capacity of law to legitimize changes to social relations. While market reforms were justified on the basis of empowering patients, I argue that addressing the democratic deficit is a preferable means of achieving this goal.
In this article, I undertake an ideology critique of reforms to the English NHS within the neoliberal era. The critique draws primarily on the writings of the Frankfurt School philosopher Theodor Adorno. I use the method of ideology critique to explain the influences on and reasons for the reforms, the contradictions in government discourse and policy and the potential reifying effects of the reforms. I also use the method as a basis for conceiving alternatives.Adorno thought that ideology was becoming more positivistic, thereby rendering critique more difficult. I identify both liberal and positivistic elements within the discourse of successive governments pertaining to healthcare. Liberal norms (such as freedom and equality) within government discourse, and the law, concerning healthcare, continue to enable the critique of ideology and are a basis for conceiving alternatives to current neo-liberal policies, which have the potential to reify healthcare and undermine the solidarity underpinning the NHS.
scite is a Brooklyn-based organization that helps researchers better discover and understand research articles through Smart Citations–citations that display the context of the citation and describe whether the article provides supporting or contrasting evidence. scite is used by students and researchers from around the world and is funded in part by the National Science Foundation and the National Institute on Drug Abuse of the National Institutes of Health.
hi@scite.ai
10624 S. Eastern Ave., Ste. A-614
Henderson, NV 89052, USA
Copyright © 2024 scite LLC. All rights reserved.
Made with 💙 for researchers
Part of the Research Solutions Family.