The Government has revised its proposed regulations governing competition between NHS providers, following widespread protest from doctors.
The regulations, published a month ago, were criticised as removing the right of clinical commissioners to make decisions based on patient interests rather than the business rights of competing providers.
The amended version broadens the freedom of commissioners, stating that “integration” and “quality” are both valid reasons for not putting a service out to competitive tender.
However, the Royal College of General Practitioners (RCGP) has expressed concern that the new regulations, by virtue of their statutory nature, are imposing too many conditions on commissioners.
The aim of the new regulations was stated by the Government to be a replacement for the Secretary of State control abolished by the NHS reforms. In other words, having emphasised the “autonomy” of the new CCGs, the Government is imposing strict controls to defend the interests of the private sector.
The original secondary legislation, published in February, appeared to create a legal basis for the forced tendering of nearly all NHS services, enforced by Monitor.
A letter to the Daily Telegraph signed by more than 1,000 doctors urged MPs to force a debate on the new regulations, while the Academy of Medical Royal Colleges expressed concern that services would be disrupted by legal disputes.
Health Minister Lord Howe said: “It has never been and is absolutely not the Government’s intention to make all NHS services subject to competitive tendering or to force competition for services.”
New amendments to the regulations include:
• Commissioners are required to record how their decisions support the integration of services.
• Exceptions to competitive tendering include cases where avoiding competition leads to better quality or integration of services.
• Monitor no longer has the power to enforce competitive tendering.
The underlying purpose remains the same: to protect “patient choice” by ensuring that NHS commissioners have to put services out to tender unless they can justify not doing so in terms of better clinical outcomes.
The publication of the new secondary legislation coincides with that of a BMJ study stating that 40% of CCG board members have financial ties to private healthcare providers.
Clare Gerada, Chair of the RCGP, commented: “The revised regulations do not go far enough in ensuring that commissioners are genuinely free to decide whether or not to expose services to competition. Despite the revisions, they will still be required to show that there is only one capable provider in order to avoid having to put a service out to tender.”