The new rules for tendering of NHS services have been defended by Health Minister Earl Howe and condemned by the Royal College of Midwives (RCM).

According to Earl Howe, the regulations do not enforce competitive tendering: they simply enforce patient choice.

However, the RCM is concerned that Monitor is being given the power to enforce competitive tendering in virtually all circumstances, while the promised ‘discretion’ of CCGs is abolished.

The difference in views relates to the question of which is more important to patients: the right to exercise choice, or the continuity and integration of services.

The NHS (Procurement, Patient Choice and Competition) Regulations 2013 are secondary legislation following the Health and Social Care Act, and will become law on April 1 unless actively challenged.

Following widespread criticism, Earl Howe said: “These regulations are about ensuring that when services are tendered for, whether from NHS, voluntary sector or independent providers, the rules that are applied to the process are fair.

“We have always said that competition in the NHS should never be pursued as an end in itself, but only where this is in the interests of patients. “This principle underpins the right of patients to exercise choice when accessing treatments.”

The concern of critics – including Labour peer Lord Hunt, the RCM and NHS campaign groups – is that decisions about tendering will be driven not by patient choice, but by lawyers acting for private healthcare providers.

The RCM, which represents maternity service professionals across the UK, argued that the new regulations abolish the control of local NHS commissioners over what services will be open to competitive tendering.

Expressing concern that a business-driven carve-up of the NHS franchise will damage the continuity and integration of maternity services, the RCM called for the new regulations to be debated in both Houses.

Jon Skewes, the RCM’s Director for Policy, Employment Relations and Communications, commented: “We were repeatedly assured by ministers that compulsory competitive tendering would not be imposed on organisations commissioning maternity services. The regulations as they stand will mean that this is exactly what will happen.

“Continuity of care is vital in maternity services if we are to have safe and high quality care. I fear that the fragmented service that these regulations could lead to will mean poorer care for women, babies and their families.”

New regulations for NHS procurement laid before Parliament will force CCGs to put virtually all services out to competitive tender.

The new rules, which will become law by default unless actively opposed, undo changes to the primary legislation agreed during the ‘listening exercise’.

Monitor will have powers to impose competitive tendering on any NHS contract where commissioners have maintained an existing contract or made a decision based on clinical rather than business criteria.

In February 2012, Health Secretary Andrew Lansley told the developing CCGs: “It is a fundamental principle of the Bill that you as commissioners, not the Secretary of State and not regulators, should decide when and how competition should be used to serve your patients’ interests. The healthcare regulator, Monitor, would not have the power to force you to put services out to competition.”

The new regulations make it clear that CCGs are legally obliged to put all services out to tender, and Monitor has the power to enforce that.

Similarly, Health Minister Earl Howe reassured the Lords in 2012: “Clinicians will be free to commission services in the way they consider best. We intend to make it clear that commissioners will have a full range of options and that they will be under no legal obligation to create new markets, particularly where competition would not be effective in driving high standards and value for patients.” This also appears to have been untrue.

Labour Lord Philip Hunt commented on the new legislation: “Whatever was said in Parliament, it seems that the Department of Health and Monitor have just carried on as if nothing has changed. By hook or by crook, a market is being introduced.

“There is very little international evidence that a market in healthcare leads to better or more cost-effective service, in fact most suggests the opposite,” he added. “Post-Francis report, the key consideration should be quality of care.”

NHS commissioning policies stop people with type 1 diabetes from gaining access to essential specialist services, medical experts have warned.

The proportion of people with diabetes who receive all essential checks is much higher for people with type 2 than type 1.

As a result, a disproportionately high number of patients with type 1 diabetes are receiving avoidable hospital treatment for failures of control.

According to the National Diabetes Audit, whereas 56.4% of patients with type 2 diabetes receive all nine NICE-recommended checks annually, only 38.5% of patients with type 1 diabetes do so.

In addition, the incidence of acute diabetic ketoacidosis in patients with type 1 diabetes is rising.

The reason, the Association of British Clinical Diabetologists said, is that type 1 diabetes (which always requires insulin therapy) needs a collaborative care pathway involving primary care and specialist teams.

Current NHS commissioning policy makes this difficult: payment by results attaches a specific cost to each referral, while the ‘Nicholson challenge’ is driving tighter referral management.

However, patients receiving specialist guidance to manage their insulin regimes better could avoid severe hypoglycaemia and ketoacidosis, as well as diabetic foot and eye damage.

Chris Walton, Chairman of the Association, said: “We would like specialist care to have more of a leadership role and to be more accountable. There are alternative ways of commissioning which should enable a more inclusive collaborative arrangement between specialists and generalists.”

For example, he argued, all patients with type 1 diabetes should have access to insulin pump provision; and all areas should have pathways to involve a specialist team when a severe episode of hypoglycaemia or ketoacidosis occurs.

A Labour Government will rebuild the NHS as “a national, planned, collaborative system”, according to Shadow Health Secretary Andy Burnham.

In a preview of his party conference speech, Burnham promised to end the ‘any qualified provider’ (AQP) policy, which he said is now causing wholesale NHS privatisation.

More controversially, he outlined plans to have local authorities lead NHS commissioning and NHS hospitals provide social and mental health care.

Pledging a return to the NHS as ‘preferred provider’ of services, he said the private and voluntary sectors would “play a supporting role to a publicly owned, publicly accountable NHS”.

Burnham noted, from information about NHS tenders obtained through freedom of information requests, that the AQP rules now in operation were leading to rapid privatisation of many NHS services.

“This week the AQP contracts are being signed with private companies,” he said. “It is very difficult to find out what is going on. Who they are, how much is being spent. They cite commercial confidentiality but that is not good enough.”

In particular, he argued, hospitals reserving up to 49% of their beds for private patients from 1 October will “damage the character and culture” of the NHS.

While Labour did not intend to exclude the private sector from NHS service provision, he stated, it would remove the new “competitive structure” that hospitals and providers “have to work within”.

To achieve this, it would replace the CCGs with a commissioning system led by local government – retaining local control but removing the commercial element.

In addition, instead of reducing the role of hospitals, Labour would involve them in providing social and mental health care for the most vulnerable people.

Labour leader Ed Milliband has already pledged to repeal the Health and Social Care Act.

New proposals on NHS commissioning from the DH would force the new Clinical Commissioning Groups (CCGs) to outsource important commissioning support functions to the private sector, the BMA has said.

The new draft guidance indicates that CCGs will need to build commissioning organisations according to commercial criteria that, according to the BMA, will force them to rely heavily on private companies.

The BMA has argued that this relationship will compromise the ability of local clinicians to lead NHS commissioning.

The new plans echo Earl Howe’s comment in 2010 that the Government did not expect GPs to become “managers”, but rather to look to “commercial partners” for commissioning support.

The new DH publication Developing commissioning support: Towards service excellence makes recommendations about how the CCGs should function from 2013 onwards.

The proposals would place the infrastructure of commissioning within a competitive market, with commercial criteria determining who is eligible to provide commissioning support.

According to the BMA, these criteria mean that CCGs will be unable to employ their own commissioning support staff and will depend on private companies to provide such functions as IT and payroll management.

As a result, CCGs will be working with a professional infrastructure belonging to the private sector, which will supply data to inform commissioning decisions.

Dr Laurence Buckman, Chairman of the BMA’s GP committee, commented: “The Government promised a greater role for clinicians in its plans to reform the NHS. Yet now it seems barriers are being put in place that would undermine the ability of clinicians to take local decisions.

“This latest guidance gives the commercial sector an in-built advantage and appears to be yet another worrying step towards an NHS focused on commercial priorities.

“We are seeking an urgent meeting with government to urge them to reconsider these proposals.”

Professor Malcolm Grant (pictured), an authority on genetic technology, has been named by Health Secretary Andrew Lansley as his choice of Chair for the new NHS Commissioning Board.

The national board, which has been called the biggest quango in British history, will commission primary medical care and specialist health areas, as well as controlling the allocation of NHS resources.

Professor Grant, currently Provost of University College London, will be interviewed by the Health Select Committee before his appointment but is expected to take up the post at the end of October.

A qualified barrister and lawyer, Professor Grant has worked in the Local Government Commission and been a UK Business Ambassador. He is a recognised authority on the regulation of biotechnology.

Malcolm Grant commented: “We need to build on the very best NHS qualities of dedicated public service, professionalism and pride, and seize the opportunity to create long-term stability and focus on getting constant improvement in quality and openness to innovation.”

Grant’s commitment to new healthcare technology is reflected in his recent statement: “We know that there will be a revolution in the next few years as we try to ensure that improvements in diagnostics and pharmacogenetics and self-care and self-treatment are brought home to patients, giving them the capacity to control their own medication and their own choices.”

The NHS Commissioning Board will provide strategic leadership for NHS commissioning. It will directly commission primary medical care and some specialised healthcare; support and regulate the Clinical Commissioning Groups; allocate NHS resources; and promote patient choice and information.

Andrew Lansley said: “Professor Grant has distinction and authority, is outstandingly capable and has excellent leadership skills, demonstrated by his success at UCL. He has a strong track record of delivery in complex public sector organisations, and shares the public sector ethos and values of the NHS.”

The BMA has called again for the Health and Social Care Bill to be withdrawn or substantially amended in a letter and briefing paper sent to all House of Lords peers.

The Bill has passed its first reading in the House of Lords, and a second reading is planned for Tuesday 11 October.

In the letter, BMA Chairman Dr Hamish Meldrum argued that the current rollout of the planned NHS reforms, in advance of the legislation, makes the need for greater clarity regarding the plans more urgent.

The Health Bill will “make it harder to create the seamless, efficient care that everyone agrees is key to future sustainability,” Meldrum claimed.

The key issues highlighted by the BMA as needing attention from the House of Lords are:

• The need for a clear statement that the Secretary of State will remain responsible for providing a comprehensive health service.
• The need for assurance that increasing patients’ choice of providers will not be prioritised over the development of fair access and integrated services.
• The need for more clarity on what will happen to services when a hospital is ‘failing’ in financial terms.

In addition, the BMA expressed concern regarding the future capability of public health; the excessive new bureaucracy around NHS commissioning; and the potential impact of abolishing the cap on the income that Foundation Trusts can generate from private patients.

Dr Meldrum concluded that “The BMA still believes the Bill, as it currently stands, poses an unacceptably high risk to the NHS in England.”

The Department of Health plans to give patients with rare illnesses better access to unlicensed or off-label drugs to treat their conditions.

The idea is for the DH to commission expert assessments of the use of off-label medication to inform doctors and patients to make “the best clinical decisions together”, says Health Secretary Andrew Lansley.

Andrew Wilson, Chief Executive of the Rarer Cancers Foundation, said: “This announcement is good news for patients with rare cancers and will help ensure all patients get access to good standards of care.”

Mr Lansley continued: “Wherever possible we should apply common sense solutions – especially to longstanding problems such as this – to ensure that patients can access the treatment they and their doctor think best for them.”

Treatment for hard-to-treat conditions, such as rarer cancers and autoimmune diseases, are sometimes only available for use in conditions where drug manufacturers are able to recruit enough patients to participate in clinical trials.

Mr Wilson commented: “When there are no licensed drugs available for a condition, it can be difficult to know how best to treat it. It is important that doctors are able to use their clinical judgement.”

At local level, NICE often does not have the evidence to make an informed decision to recommend the drug on the NHS.

Professor Anthony Redmond, Chair of the Arthritis and Musculoskeletal Alliance (ARMA), said: “NICE could play a valuable role in collating the evidence about what works in these conditions and this will be an important resource for clinicians in providing the best possible treatment to patients, and for patients in making an informed decision about the most appropriate option for them.”

Approximately 1,000 specific requests for off-label drugs are made to NHS commissioners every year.