John Rentoul: A nasty case of Utopian dogma

Old Labour practices live on in the cruel rule that prevents NHS patients paying for extra cancer treatment

Once upon a time, at the very beginning of New Labour, before it was even called New Labour, Neil Kinnock made the speech of his life that would change politics. He spoke of impossible promises – he meant those of the Trotskyist left, but he could have been talking of any utopianism. "They are then pickled into a rigid dogma, a code, and you go through the years sticking to that, out-dated, misplaced, irrelevant to the real needs." And anyone who was politically conscious at the time can tell you what happens next. You end in grotesque chaos.

So it was with all those changes that were needed to make Labour electable again. There was the closed shop, for example. It was one of those codes of old trade unionism that arose out of a desire for fairness. In order to prevent free riders gaining the benefits of union membership without paying their dues, some unions made deals with employers that everyone at a place of work was required to be a union member. The original motive of justice became pickled into a rigid dogma, and the Labour Party stuck to it, mistaking form for content, long after the countervailing injustices became obvious, of workers being sacked if they fell out with their union. Then some lightweight opposition spokesman called Tony Blair came along and ditched the party's support for what was now an infected appendix of history.

It might be thought that there aren't any dangerous appendices left on New Labour's thoroughly modernised body, not after 25 years of almost continuous revisionism. Indeed, there are many people who think that this is one of Labour's problems: that it has been so pasteurised and homogenised that all its distinctive values have been cleaned out, leaving a centrist husk that cannot compete with the fresher centrism of Cameron's Conservatives. How wrong they are.

There is one out-dated, misplaced dogma to which the Labour Government clings, which is irrelevant to the real needs. It is certainly distinctive, redolent of an old idealism – and utterly repellent to the voters. It is the rule, recently reinvented by Alan Johnson, the Secretary of State for Health, that if you pay for drugs in addition to National Health Service treatment, then your NHS treatment is withdrawn.

Last week the case of Linda O'Boyle was reported. She paid for a cancer drug in the hope that it would extend her life. It is difficult to know whether it did or not – her husband believes that it gave her an extra three months before she died, aged 64. She had to pay because the drug is not approved for use on the NHS. Her doctor told her that, if she wanted to take it, she would have to pay for all the other drugs that she was getting on the NHS. So that, of course, is what she did.

But what an absurd state of affairs. Alan Johnson tried to defend it in December, when two other cancer patients sued their NHS trusts for refusing them NHS care if they bought their own top-up drugs. He told the House of Commons that it was "a founding principle" of the NHS that "someone is either a private patient or an NHS patient". A patient "cannot, in one episode of treatment, be treated on the NHS and then allowed, as part of the same episode and the same treatment, to pay money for more drugs. That way lies the end of the founding principles of the NHS."

The original motive is just about visible through the cloudy mixture of meaning-starved utopianism and bureaucratic authoritarianism. When the NHS was established, it was important to keep private and public medicine separate, mainly for fear of doctors using their NHS practice as a source of private business. That became confused with what really was the founding principle of the NHS in 1948, namely that everyone would be entitled to medical treatment regardless of their ability to pay. And this in turn became pickled into the idea that everyone had to be treated the same. Hence the older theological dispute about pay beds.

And hence today's refusal to treat NHS patients on the NHS if they pay for any pills themselves. To allow public and private to be mixed in "one episode of treatment" – the Department of Health's code of practice actually says "for the treatment of one condition during a single visit to a NHS organisation" – would, according to the Department's press office, "risk creating a two-tier health service".

Here we are, therefore, in the grotesque chaos of a Government that will pay £140m to let over-60s swim for free, but which will take away free life-saving or life-extending treatment from people who top up NHS treatment with drugs that the NHS won't let them have.

The Government's policy is like telling parents that if they pay for a private tutor, their children won't be allowed to continue to attend a state school. In other words, if everyone cannot have something, then no one can. Not unless they are really rich in which case there's nothing we can do about it, although – the implication seems to be – we wish we could.

Where is the Johnson who was a moderniser at Education, reforming student finance by ditching the rigid dogma of a supposedly egalitarian system that had become elitist? Can he not see that the game is up? Already, Doctors for Reform, the pressure group for patient choice, is preparing a legal challenge to his policy. If they can find the right test case, the weak legal base of the Health Department's guidelines is likely to be exposed.

Nor will the changes that have brought the issue to the fore in the past two years go away. On the contrary, they will intensify. Medical science is developing new, expensive drugs that control or limit cancers.

The only fair way for a state healthcare system to contain these cost pressures is for an independent body, in our case the National Institute for Clinical Excellence, to decide which drugs offer the greatest benefit for their price. That means that more and more drugs that are safe and potentially beneficial will not be available on the NHS, or not within the abbreviated lifetimes of many cancer patients.

One reason that Johnson has not come under more pressure to ditch an indefensible policy is that the Conservatives support it. David Cameron understands, in the way that Kinnock once did, the power of history in poisoning attitudes to an opposition party.

However unfair the Tory reputation for being hostile to the NHS might be, he cannot say anything that might be characterised as favouring the better-off within the NHS. So he said he was "tempted" to ditch the ban on top-up drugs, while Andrew Lansley, his health spokesman, keeps up the old "no two-tier" tune. That is an opportunity for Johnson, though, not an excuse for doing nothing, especially after a little-reported revolution last week. On Wednesday, the British Medical Association, the most successful and conservative trade union in the country, changed its policy. Its consultants' conference voted overwhelmingly that NHS patients should be allowed to top up their treatment.

Funny how doctors as consumers of health care turn out to think differently from doctors as providers of it. The conference heard from Gordon Matthews, an orthopaedic surgeon whose wife has terminal cancer. There were non-NHS drugs that cost £20,000 a year that "might buy her a few months", but if she used them her NHS treatment, worth "tens and tens of thousands of pounds", would be withdrawn.

With the doctors, public opinion and common sense on his side, it is only "out-dated, misplaced dogma" that is holding Alan Johnson back.