Several Liberal Democrat peers are supporting a number of amendments to the Health Bill focused on the regulation of competition within the NHS.

Several senior Lib Dem peers support the amendments and could force the Government to change aspects of the controversial legislation following concerns the Bill could still extend the application of European competition law to the NHS.

Lord Clement-Jones, a former Lords health spokesman who backs the changes, says the amendments would “balance the competitive powers and the integrating duties”.

More than a dozen amendments have been tabled by Lib Dem peers. They include the constraint of Monitor’s action against anti-competitive behaviour, that private income generated by Foundation Trusts would be used solely for the benefits of NHS patients, and that public interest be considered when the Office of Fair Trading is consider mergers.

Speaking to the HSJ, Lord Clement-Jones said he and his colleagues aimed to “make sure we didn’t fall into having a health service covered by European competition law” and that “we don’t have competition red in tooth and claw across the health service”.

The consideration of the Bill at the committee stage in the House of Lords is set to continue until the New Year.

The BMA has set out eleven areas of continuing concern with the Health and Social Care Bill.

The Association says that a series of further amendments to the Bill are necessary in “order to mitigate damage” to the NHS.

Its recommendations include giving Clinical Commissioning Groups (CCGs) the freedom to commission the most appropriate services, and ensuring the Secretary of State retains ultimate responsibility for the NHS.

Dr Hamish Meldrum, BMA Chairman, says although the Association would prefer the Bill to be withdrawn, “there is scope for further significant change to be made” during its passage through the House of Lords.

In its latest briefing paper, the BMA also calls for an amendment which makes it explicit that patient choice will not be given priority over fair access for all. It also wants further safeguards which prevent providers of care or services ‘cherry-picking’ more profitable services.

On incentives for commissioning, the Association “continues to have serious concerns” about conflicts of interest with the link of financial incentives to the performance of CCGs.

Dr Meldrum hopes that peers in Lords will agree with the suggested amendments and change the controversial legislation before it progresses any further.

“Because so much of the detail won’t appear on the face of the Bill and will instead be left to secondary legislation and guidance, it is essential to have firm assurances now about the government’s implementation plans, for example, we continue to have serious concerns about the ethics of the current proposal to incentivise commissioners,” he said.

“Other areas where the BMA is seeking amendments relate to public health; the private patient income cap; the foundation trust failure regime; increasing bureaucracy and complexity, and information and confidentiality.”

Members of the BMA have previously expressed “major concerns” about the Health Bill on various occasions, calling for the Government to amend the plans back in June 2011.

Further delays to the progress of the controversial Health and Social Care Bill are expected due to several challenges to its proposals during its passage through the House of Lords.

Baroness Glenys Thornton intends to seek crossbench alliances in order to question aspects of the reforms, including the role of the health secretary and competition regulation.

Labour’s health spokeswoman said to the HSJ that peers were likely to “demand” that the legislation was analysed in a Lords bill committee, rather than on the floor of the house.

A bill committee is the only way the house can hear evidence from external bodies.

The Baroness says the rare move away from a discussion on the floor would be justified due to the Bill’s length, complexity and as it has been significantly amended following the Government’s NHS Future Forum’s recommendations.

It’s believed that the move to a committee discussion has support from Lib Dem peers, although it is understood the Government has serious concerns about the resistance and further delays.

Baroness Thornton raised a number of issues that had not been discussed in the House of Commons because a lack of time and other amendments had not been scrutinised fully.

She said that due to the Bill’s impact being so “big and fundamental” it would usually be subject to a comprehensive parliamentary debate and a draft bill before the proposed legislation was published.

“There is certainty a case that some parts of this bill need more attention,” she said.

“Clearly the Government might find itself in some difficulty.

“We are taking this bill very seriously… There is a cohort of members who are well informed about this bill.”

She added that it was impossible to predict likely further delays but said that royal assent may be take place beyond when it is currently expected in early 2012.

The ABPI is proposing the PCMPA’s Constitution and Procedure be amended so that any future change to its Code of Practice can be done so without calling a general meeting.

The Association is obliged to implement any amendments the European Federation of Pharmaceutical Industries and Associations (EFPIA) makes but currently has to arrange a formal procedure to do so.

Its Board of Management is now requesting that where “changes arise solely” from amendments to the EFPIA Code they’re introduced without a general meeting.

The ABPI says companies would then be consulted regarding any changes.

The EFPIA recently made amendments to its Code on the Promotion of Prescription-Only Medicines to, and Interactions with, Health Professionals and to its Code of Practice on Relationships between the Pharmaceutical Industry and Patient Organisations.

The proposals have now been sent to the Medicines and Healthcare products Regulatory Agency (MHRA), the British Medical Association (BMA), the Royal Pharmaceutical Society of Great Britain (RPSGB), and the Royal College of Nursing (RCN) as required by the existing Constitution and Procedure.

Although consultations are welcome on the proposals, it is anticipated they will be discussed before the ABPI’s bi-annual general meeting in November, with a view to approval by member companies.

The new measures would then come into effect from 1st January 2012, and become fully operative on 1st May 2012.

The BMA has called for the revised Health and Social Care Bill to be withdrawn or substantially amended, arguing that its plans for competitive and market-led NHS reform still threaten the quality and integrity of services.

In a letter to all MPs, BMA Council Chairman Dr Hamish Meldrum has said that even in its current revised form, the Bill presents an “unacceptably high risk to the NHS, threatening its ability to operate effectively and equitably, now and in the future.”

The third reading of the Health and Social Care Bill in the House of Commons is due to take place on 6 and 7 September, after which the Bill will transfer to the House of Lords.

Dr Meldrum argued that the Bill places “an inappropriate and misguided reliance on ‘market forces’ to shape services”, with the “potential to destabilise local health economies” and, in the long term, to harm public health.

He also noted that, far from overcoming bureaucracy, the Bill is now creating a US-style legalistic environment of “excessive complexity and bureaucracy” to support competition between providers.

The BMA’s main concerns include:

• The Secretary of State is still not responsible for providing a comprehensive health service, only for ‘promoting’ one.
• The removal of the cap on Foundation Trusts’ income from private patients could lead them to focus their resources on private care.
• Forcing all NHS Trusts to become FTs could compromise patient safety and quality of care by placing a premium on financial targets.
• Promoting an increase in choice of providers appears to be a higher priority than tackling health inequalities and promoting integrated care.

“Meaningful, sustainable reform needs to have the full confidence of patients and those working in the health service,” Dr Meldrum concluded – and despite its apparent benefits to their professional interests, GPs remain predominantly opposed to the Government’s plan for the NHS.