Ninth Circuit to Upend Nation's Healthcare?

In what may be the most momentous judicial decision since Roe vs Wade or One-Man-One-Vote, and possibly directly affecting far more Americans, the US Ninth Circuit may be heading toward greasing the legal skids toward nationalized healthcare. The case involves the employer mandate fees included in San Francisco's universal care scheme. As I discussed here, "Such a fee upon employers violates the 1974 ERISA law which ensures employer choice as to whether and how to provide healthcare benefits." Not a single court has decided against ERISA's preemption of such schemes. (More about ERISA here.)

Most recently, both Maryland and Suffolk County, NY decided not to appeal court decisions against their universal schemes' employer mandates, because they violate ERISA. Nonetheless, a three-judge panel of the Ninth Circuit appears to be heading toward ignoring ERISA, what a close observer likens to "jury nullification."

Federal district judge White, consistent with every other precedent in the country, decided the San Francisco employer mandate violated ERISA. San Francisco's appeal appears to have found friendly ears in the Ninth Circuit Appeals Court, from three judges with a history of extremely liberal decisions, often overturned by the Supreme Court. They have not yet issued their formal decision, but if it follows from their opinions expressed during the hearing it may seek to ignore ERISA's prohibition.

What happens next? An appeal to the entire Ninth Circuit panel and/or to the Supreme Court. That will take time. Meantime, San Francisco and California, and other states, may rush to enact similar employer mandates as part of universal care schemes. The result may be a fait accompli of a major step toward nationalized healthcare, along with hugely increased government budget deficits requiring additional taxes upon all. (Massachusetts' is already running deeply in the red, and California's proposed system is likely to double the already $14-billion+ deficit's drain upon taxpayers.)

The private healthcare market in which most Americans are enrolled, and which polls of patients consistenly shows 70-90% satisfaction, would be so severely disrupted as to not be able to recover or be seriously weakened, leaving a government-run program as the default option. That is exactly what the proponents of nationalized healthcare desire, and what is at stake in this case.

Don't think judges matter, or that presidential appointments of judges don't matter? Think again, and look closely at what presidential aspiirants have done in their past and how reliable their promises may be now.

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Colossal British stupidity: 3 times more doctors educated than Britain can employ

JUNIOR doctors will face even tougher competition for jobs this year with close to three applications expected for each position, National Health Service managers have warned. NHS Employers, the agency responsible for staffing the health service, has warned that a Court of Appeal ruling means doctors trained in Britain will need to compete for posts to train as consultants alongside doctors from around the world who want to practise in the UK. If the juniors do not obtain a training post, they will not be able to become hospital consultants or GPs.

Sian Thomas of NHS Employers said: "There are about 9,000 posts for around 23,000 estimated applicants - that's what the Department of Health has told us. "One could argue that the more competition you have, the better quality you will get. It is a good thing for patients that there is competition for jobs - it should mean they get the best doctors wherever they live." She admitted, however, that taxpayers' money would be wasted if junior doctors trained in Britain decide to take consultant posts overseas.

The British Medical Association blames the health department for continuing to recruit medics from overseas at the same time as increasing the number of medical graduates from British universities.

Meanwhile, patients are suffering from a postcode lottery of drug prescription eight years after the government set up a body to get rid of the problem, a report by a parliamentary committee will say this week. The health select committee is expected to say that the National Institute for Health and Clinical Excellence (Nice) has failed to ensure that medicines available in one area are not denied in neighbouring districts.

An inquiry by the committee of MPs is also expected to say that the NHS, which spends about o90 billion a year, should not need to withhold life-saving medicines. It is likely to say that restrictions on drugs to treat cancer or Alzheimer's could be avoided. The MPs are expected to recommend that Nice gets greater powers to force NHS trusts to make drugs it has approved available to all patients

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Follow-up: ANOTHER bureaucracy!

The running of doctors' training must be taken out of the hands of the Department of Health after its chaotic mismanagement of funding and job applications, an influential report will say today. The report by Sir John Tooke, ordered last year after thousands of highly qualified junior doctors were left without training posts, recommends that the Government be stripped of control of postgraduate medical training. Instead, it recommends that the cash needed to train the next generation of specialists should be ring-fenced to prevent the NHS from spending it on something else, and managed by a new body, to be called NHS Medical Education England.

The recommendations, seen by The Times, are expected to be made today by the inquiry, which was set up by the department last year after a series of failures. Incidents included thousands more doctors applying for posts than were available, and problems with a computer system designed to shortlist applicants, which resulted in severely underqualified doctors turning up for job interviews.

Sir John Tooke, Dean of the Peninsula School of Medicine in Plymouth, was asked to chair an inquiry into what to do next. His interim report was published in October, and has been overwhelmingly backed by doctors. His final report, out today, is a stunning vote of no confidence in the department. Last year's crisis "could and should" have been predicted, he told The Times yesterday. The appointments system that failed was "rushed and poorly planned".

There are two important changes to the interim report's recommendations. One is the formation of NHS Medical Education England, which Sir John and his colleagues say will be able to articulate the principles of postgraduate training and implement it successfully - something that the department "is in no way capable of doing", he said. The report also gives warning that training could suffer when the European Working Time Directive comes fully into force next year.

The limit on doctors' working hours will mean that there is not enough time to train them to the skill levels needed, he cautioned. A way needs to be found in which doctors can continue to work legally more than 48 hours a week - perhaps by separating work on the wards from training time. But the most urgent problem is one that Sir John cannot solve - making sure that last year's debacle over training appointments, when 30,000 junior doctors applied for 20,000 posts, is not repeated. The evidence is that the pressure on places will be more intense this year, with about three applicants for every training place, and 20 to 1 in the more popular specialties.

Sir John said that the Government had failed to reconcile two of its policies: expanding medical school places in Britain and the "open door" policy towards graduates from overseas. Unless further training places were made available this year, he said, British graduates would be disadvantaged compared with those of earlier years. There will be a bulge in applications for higher training, caused by a growing number of British graduates, applications from those who won only a one-year post last year, and the uncontrolled number of applicants from abroad.

Last week, the British Medical Association gave warning that the process could go as badly as it did last year. Applications opened on Saturday for training posts in England that start in August this year. Ram Moorthy, chairman of the BMA junior doctors committee, said: "Our concern is that without adequate planning, the levels of competition could result in a lottery."

Sir John said that unless changes were made to protect the rights of British-trained doctors to at least one year of postgraduate training, a situation could arise in which students graduate from medical school but could not practise as doctors because they had not completed their year in hospital.

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