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Doctors seek further assurances on enforced competition

Doctors want controversial NHS procurement regulations withdrawn for a second time and replaced with ones that explicitly rule out enforced competition.

The BMA says government assurances that the Section 75 regulations of the Health and Social Care Act will not oblige commissioners to put all services out to tender are not enough.

It wants these assurances unambiguously reflected in new, clearer regulations.

It also proposes that regulations should specifically state it is for clinical commissioning groups to decide how best to procure services on behalf of the population they serve.

BMA council chair Mark Porter said the lack of satisfactory guarantees in the regulations had created great uncertainty and anxiety for patients.

He added: ‘Only explicit wording in the regulations would allow patients, doctors and commissioners to be absolutely certain that clinicians will have the freedom to act in the way they consider to be in the best interests of patients.’

Commissioning ambiguity

The BMA’s plea comes in a briefing for peers who are preparing to debate a ‘fatal motion’ proposed by former health minister Lord Hunt next week. He will call for the regulations to be annulled ‘on the grounds that they do not implement the assurances given by ministers to Parliament … that NHS commissioners would be free to commission services in the way they consider in the best interests of NHS patients’.

The Section 75 regulations, designed to ensure good procurement practice, have already been withdrawn and rewritten once. The BMA briefing says the amended regulations do acknowledge some of the concerns about the level of competition in the NHS but ‘considerable ambiguity remains around the key issue of when, or indeed if, commissioners will be required to tender all services’.

More detailed explanatory guidance from Monitor, which has a new role in preventing anti-competitive behaviour and enabling healthcare services to be provided in an integrated way, has not yet been published.

The briefing says: ‘Given the direction of travel and specific duties established by the Health and Social Care Act 2012, it is vital that commissioners have as much detail as possible around what will be expected of them and how Monitor will perform its functions.

‘In the future, Monitor may change its mind on the interpretation of its duty and ministerial assurances could be overridden. It is important for these assurances to be credibly written into the regulations.’

Safety first

The BMA calls for further explanation on whether commissioners would be able to prioritise integration over competition and choice without leaving themselves open to a challenge from Monitor.

It cites real-life dilemmas facing commissioners, which demonstrate the lack of clarity in the regulations. These issues include the need for commissioners to be able to ‘bundle’ services when it is necessary to ensure quality and safety, such as trauma and orthopaedic services, which are inter-dependent.

The briefing says it is essential that commissioners are able to maintain or create bundled arrangements rather than being forced to ‘unbundle’ them and run separate competitive tenders.

BMA GPs committee chair Laurence Buckman said: ‘Commissioners could be put in the position of facing costly tendering processes and possible legal challenges from unsuccessful bidders because of ambiguous rules. That is why GPs want the regulations withdrawn.’

The BMA, which has long-standing concerns about the use of competition in the NHS, sets out a number of ways it has successfully called for limits to mitigate the worst effects of competition.

These include:

  • The removal of early clauses in the Health and Social Care Bill which would have allowed providers to compete for contracts on price
  • Changes to the original proposals that Monitor would ‘promote competition’
  • Strengthened requirements around conflicts of interest
  • Amending a proposed ‘indispensability test’ in the regulations to determine when patients’ services are so crucial they should not be subjected to competition. The BMA argued this term was too open to interpretation.

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