For sale to the highest bidder? Future trade deals and the NHS

Author: Kate Ling, senior European policy manager at the NHS Confederation.
For sale to the highest bidder? Future trade deals and the NHS
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Donald Trump sparked an almighty row in June when he said that the “NHS or anything else, a lot more than that” would be in the sights of US firms in any post-Brexit trade deal, writes Kate Ling, senior European policy manager at the NHS Confederation.

But later he directly contradicted himself, saying instead that “I don’t see it being on the table…that’s something that I would not consider part of trade”. So what’s the truth? Is the NHS up for sale, and could a post-Brexit trade agreement with the USA lead to the privatisation of our beloved Health Service?

The quick (and reassuring) answer is no – there is no reason why a trade deal, in itself, would threaten the founding principles of the NHS: free to all on the basis of need at the point of use, and funded through general taxation. The UK, and not our trading partners, will decide how our four national healthcare systems are funded and organised.

A different, but highly relevant issue for trade deals, is the extent to which competitive tendering should play a role when healthcare services are commissioned.

Competition in the NHS is not new: some NHS services are already provided by independent providers, including American-owned companies. Operating on World Trade Organisation (WTO) terms after leaving the EU won’t force commissioners to invite bids from overseas companies to provide NHS services. It will be for the Government of the day to choose, when negotiating, what kind of services foreign providers can bid to supply.

However we need to scrutinise very carefully the content of any future agreement. Health issues are not usually high on the agenda – or on the agenda at all – when trade deals are being negotiated, and there’s a danger that, wittingly or unwittingly, some of the small print could have damaging consequences for patients.

For example, where services are open to competition from international providers, agreements may (but don’t have to) include investor protection provisions whereby investors (companies) can seek redress where they feel they have suffered detriment because of the actions of a state. Such provisions are controversial owing to the possibility of a potentially costly legal challenge, from companies who feel they have not been given the opportunity to bid for a service or who think that Government policies on (for example) discouraging consumption of unhealthy products affects their profits. We would prefer not to have such clauses in trade deals at all, or if they are included for the agreement to explicitly recognise the right of Governments to regulate to protect and promote public health and safety.

Getting back to the Unites States of America, what particular glittering prizes in the healthcare sector might be making President Trump’s salivary glands work overtime? The US, in their publicly stated negotiating objectives, clearly have medicines pricing and reimbursement in their sights – currently the NHS and the pharma industry have an agreement which caps NHS expenditure on branded medicines, keeping prices in the UK down for both patients and our healthcare system. The US would also clearly like to strengthen intellectual property rights for companies who hold patents and data about the drugs they market, which could delay patient access to cheaper non-branded medicines.

Also worrying is the US’s insistence on “science-based” regulation, for example in relation to food hygiene, so that only where there is scientific evidence of risk will a product or procedure be banned. This may sound innocuous but is less stringent and could lead to lower standards than the EU’s “precautionary principle” which excludes products where risk cannot be definitively ruled out.

So – what could or should UK negotiators do to avoid some of these scenarios and ensure that patient care isn’t compromised in pursuit of commercial gain?

Ideally, exclude publicly funded healthcare services completely from the scope of a future free trade agreement (FTA). Or, if they are within scope, explicitly exempt them from commitments that would, for example, oblige the NHS to allow the trading partner’s companies to bid for NHS business (we would prefer this to be a choice, not an obligation).  We should resist any provisions that threaten to lower standards, weaken protection for patients or increase costs.

To end on a positive note, the UK is a world leader in medical and scientific research, innovation and life sciences, education and training, clinical services and governance and associated consultancy. Leaving the EU will make it easier to strike ambitious deals with other countries that go beyond their existing deals with the EU, if they have them, and to sell our services abroad.

Trade is all about give and take, risks and opportunities.  The NHS Confederation, in its evidence to the House of Commons International Trade Committee, has called for Parliamentary and public scrutiny of negotiations. Such important deals must not be struck behind closed doors: the stakes for the NHS are too high.

This blog was first published on NHS Voices, the NHS Confederation's blog for NHS leaders.