Regulations laid before Parliament last month provided greater details about how aspects of patient choice and competition would operate under the Health and Social Care Act, which takes effect on 1 April. They were intended to ensure good procurement practice, but prompted widespread concern and uncertainty about the apparent requirement for competitive tendering for most health services.
Although the regulations have since been revised to acknowledge some of these concerns, there remains a lack of clarity around when commissioners will be required to tender all services. The BMA and RCN are concerned that competition risks fragmentation of services, creates unnecessary transaction costs and increases scope for legal challenge, making it harder for the NHS to deliver high-quality, cost-effective and integrated care to patients.
During the passage of the Act, the Government stated on a number of occasions that commissioners would have the freedom to decide which services they would tender. Monitor has the task of producing guidance for commissioners on procurement and competition which is expected to provide clarity on what will be expected of commissioners and how Monitor will discharge its functions in this area. However this guidance has still not been published, causing further uncertainty for commissioners.
The BMA and RCN are asking the Government for:
Immediate and definitive assurances on whether commissioners could legitimately seek to limit competition in all circumstances where it is in patients’ best overall interests
Assurances to be clearly reflected in the legal framework
A firm commitment that commissioners could prioritise patient services over competition and choice, thereby avoiding fragmentation.
Dr Mark Porter, Chair of BMA Council, said: “Although the revised regulations improved the original wording, we stressed the need for this to be supported by clear guidance to provide the assurance and clarity that is needed to ensure that competition does not undermine integration, innovation, or clinical autonomy.
“With major NHS changes coming into force on 1 April, that guidance has still not been published. This has created great uncertainty and anxiety for clinicians and patients, and left commissioners in a potentially vulnerable state. We have not received satisfactory assurances from the Government that would alleviate the considerable fear that commissioners are facing.
“Until we see how the regulations work in practice we cannot be sure that commissioners will have the freedom to act in the best interests of patients. The stakes are too high to take such risks in what is untested territory.
“We urge the Government to give immediate and absolute assurances about the limits of competition, changing the wording of the regulations if this is what it takes, to ensure that its prior commitments match the reality on the ground. Commissioners need to be completely clear about the rules governing commissioning and to know that they will be allowed to make the best decisions for their patients.”
Dr Peter Carter, Chief Executive & General Secretary of the RCN, said: “Even with the recent revisions to the regulations there is still a worrying lack of clarity over how much freedom commissioners will have to provide the best possible care for patients. There is a very urgent need for Monitor and NHS England to publish the promised guidance for commissioners.
“We remain concerned that despite Government assurances commissioners may not be able to put the quality of patient care and integration above the need to provide competition without facing potentially costly challenges.
“The priority for the health service right now should be encouraging integration between services to cope with increasing demand and driving up the quality of patient care. Without Government assurances being reflected in the Regulations, we are concerned that clinicians will not be able to focus on these priorities and commission the services that their patients need.”
Here are the links to the LBC broadcast of the Royal Society of Arts debate on the future of the NHS referred to by Jon Danzig in his comment below: