A two-tier NHS born by test tube?

Are the lines between NHS and private care eroding, asks Nicholas Timmins

Private care has always been available on the NHS. For most it has meant treatment in an NHS "pay bed" with the consultant charging a fee.

But since 1948, a little-known and far cheaper option has been available, where the patient pays for all the facilities and treatment consumed, but the consultant does not charge: in effect providing private treatment in his own or NHS time.

This latter option has, unsurprisingly, been very rarely used. There has been little incentive for consultants to agree to it when they could be earning fees.

This week, however, the Chelsea and Westminster hospital's decision to offer IVF treatment to patients whose health authorities won't pay, at the same price that it charges to those who will, has moved this arcane backwater of NHS rules into the spotlight.

There are some very fine dividing lines here, but they mark the boundaries of very important principles. Outside specific areas - prescription and dental charges, for example - NHS rules prohibit "hybridisation", charging NHS patients all or part of the cost of treatment. To permit that would be a fundamental breach of the service's founding principle, that treatment is provided free at the point of use. It would set the NHS off down a short and slippery slope to co-payment, possibly to means-testing, and certainly to a situation where access depends on ability to pay.

That is not what is happening at the Chelsea and Westminster. The patients whose health authorities will not cover the cost cease to be NHS patients and become private ones - meeting the full cost of their treatment, even though it is provided in NHS time with NHS facilities. Because the consultants are not charging fees and the hospital is not making a profit, the Trust can greatly undercut the private sector. Predictably, independent hospitals are screaming blue murder about "predatory pricing", protests made all the more heartfelt by the NHS's recent marked expansion of private patient facilities.

So has a defining line been crossed this week? The answer is not yet. But the accuracy of that statement depends critically on the treatments involved. IVF has always been on the boundaries of NHS provision - infertility being, some would argue, a condition not a disease. The same applies to the other areas where this approach has tended to be used in the past - cosmetic surgery, for example.

But if for IVF, why not for hips, hernias or cataracts, where demand proves higher than a health authority or fundholder's contract allows? Will that happen?

Trusts these days are businesses, interested in income flows and revenue streams. The incentives for them are obvious. They are far less clear cut, however, for consultants, who would be denying themselves their own private practice opportunities. In the Chelsea and Westminster case, this does not actually apply. The teaching hospital does no private IVF - although some of its consultants do in the private sector. It was a mixture of "altruism and self-interest" that led them to back the scheme - altruism in believing that some lower-cost IVF treatment should be provided, and self-interest because the scheme generates patients for research and improves the unit's economics.

The same mix would not apply for mainstream NHS treatments. Obvious conflicts of interest could arise over how much time consultants spent treating NHS patients and how much they spent treating private ones on NHS time - patients who, from the Trust's financial point of view, would be of identical worth. There would be two tiers of NHS private patients - full payers and cut-price.

Some individual patients would gain - getting cheaper private treatment. But patients as a whole would be likely to lose. For just as the Treasury has used the private finance initiative to cut NHS capital spending, so widespread treatment of private patients on the NHS's time would almost inevitably lead to reductions in health authority allocations: in other words, a privatisation of the NHS by the back door with increasing numbers left having to pay. And it would be ironic indeed if an obscure corner of the NHS's founding settlement were to lead to precisely that outcome.