NHS foundation trusts will be able to form partnerships with independent hospital groups to increase their volume of private work following the passing of the health and social care bill.
The move has prompted fears that private patients will benefit from cheaper health care, subsidised by the taxpayer.
With hospital overheads largely covered by NHS tariffs, trusts will be able to offer deals to private partners as long as private patients´fees add a marginal contribution over the direct costs.
The health bill, which received royal assent today, will allow NHS foundation trusts to earn up to 49% of their income through treating patients privately.
Some foundation trusts are already gearing up for alliances with private hospital providers. Guy´s and St Thomas´ hospital tendered for a private provider partner for its new private patient unit last summer.
And North Bristol NHS Trust has tendered for a commercial partner to invest in, establish and operate a private patient unit at the Southmead Hospital site in Bristol. The partner is expected to be an established independent healthcare provider or a consortium with such a organisation as a key member.
Sue Slipman director of the Foundation Trust Network said she wasn´t aware of any trusts planning to charge marginal costs to private providers for NHS facilities but said the bill left it open for them to do so if they wished.
'There aren´t any rules around it, so we don´t know how its going to work but I´m sure there will be different models that different providers will adopt.
Ms Slipman said trusts would still have to fulfil their obligation to the NHS under the terms of their authorisation and would have to show that taking on private work benefitted the NHS.
But she added that factors related to offering private services such as having consultants onsite for longer or rent received for use of premises could be termed benefits to the NHS.
Ms Slipman said she expected the bigger foundation trusts to increase the proportion of private work they undertook - possibly up to the maximum of 49%.
'The big international names will. The Royal Marsden has been at 30% for years, I expect Great Ormond Street will and trusts like Moorfields which has been asked to set up an organisation in the Middle East. But quite a lot of trusts are in no position to benefit from this - either from the point of view of the services they offer or the resources they have.'
She added that trusts would have to secure the backing of governors for schemes involving private work: ‘I suspect having to go through the governors will mean strong discussions about benefits to the NHS.'
As a concession to critics, the government amended the health bill to require a majority vote of an NHS trust's board of governors if business plans entail a 5 percentage point or more increase in the share of income earned through non-NHS work.
Dr David Jenner, GMS/PMS contract lead at the NHS Alliance and a GP in Cullompton, Devon said: ‘The new legislation is fairly permissive so things like this are going to crop up and could worsen particularly if we get a fully fledged Tory government at the next election.'
He added that foundation trusts and the rest of the NHS were set to receive heightened scrutiny for years to come in the wake of the controversy over the health bill. ‘The trick of any loophole such as this is to close it again once it's discovered, so the NHS patients get the service they deserve.'
