Union starts legal action against DH’s social enterprise plans

Unison is taking the Department of Health to court over its refusal to consult on the recent white paper, which stated the department wanted to create the ‘largest social enterprise sector in the world’.

The action follows a letter from NHS CEO Sir David Nicholson, which Unison claims told NHS bosses to implement the white paper’s proposals immediately.

Sir David reacted by telling NHS bosses not to make changes until there had been a consultation, but Unison is arguing the consultation will be on how the proposal should be implemented, not whether they should be implemented.

Unison, the UK’s largest pubic service union, claims this is unlawful and started legal action yesterday against health secretary Andrew Lansley.

Karen Jennings, Unison’s head of health, said the white paper contained ‘sweeping changes to the NHS and how it should be run’ and that the public, staff and unions ‘have an absolute right to be consulted’.

‘That means not only on how the proposals are to be implemented, but also whether they should go ahead in the first place,’ she said.

‘The Department of Health’s refusal to recognise this clear and important legal duty leaves us no option but to issue legal proceedings as a matter of urgency.’

In the Equity and Excellence: Liberating the NHS white paper, published in July, Lansley said he wanted to give more freedom to foundation trusts, turning them into social enterprises, although this definition was disputed by some in the social enterprise sector.

He added that GPs would get commissioning powers and patients would get more choice through the ‘any willing provider initiative’, which would open doors for civil society providers by allowing commissioners to choose their providers on a more local level.

'Deeply suspicious'

However, Unison said the public was ‘deeply suspicious’ of the government’s plans to create co-operatives and social enterprise health service providers and that the ‘any willing provider’ initiative would mean ‘more private companies coming in to grab a share of the health market’.

Unison’s concerns include a fear that social enterprises would be taken over by multinational private companies and be too management led.

Jennings said: ‘Social enterprises contain a number of risks. It is quite possible that a multinational might look to break into the market by taking over a successful social enterprise that started to make a good profit.

‘Under the so-called right to request scheme [which gives NHS staff the right to request to set up a social enterprise through their primary care trust], social enterprises get a contract for three years, but after this there is no guarantee of what happens to the services they are delivering. Equally there is no guarantee that such organisations will survive for the full three years.

‘The stated benefit of social enterprise – that employees have a greater stake in the organisation and therefore provide better service – is undermined by the fact that very few of the prospective social enterprises in the health service have actually been driven by a bottom-up demand from health staff. They tend to be management-led initiatives where employee engagement is little more than an afterthought.’

A DH spokesperson said it was ‘engaging fully’ with the public, healthcare professionals, local authorities and unions on how its proposals will be implemented.

‘The government has already launched public consultations on specific elements of the white paper and further documents will be published this year. NHS CEO David Nicholson has written to encourage the NHS to begin locally led consultations and take first steps on the implementation of the white paper, without pre-empting the wider consultation. Many reforms are also subject to Parliamentary approval as part of the Health Bill.

‘Through the proposed changes, healthcare professionals and patients will have more power to shape, lead and deliver local healthcare services, away from the control of central government.’

• A campaign and petition against DH's plans and the white paper has been launched by the NHS Support Federation, which states it's against the setting up of social enterprise. A statement on its website states: 'For the first time since 1948, private companies will have the same status as all these former NHS bodies [Primary care trusts and strategic health authorities], opening the door for them to make profits from illness once more. Find out more about the campaign at www.nhscampaign.org