Clarity on NHS competition rules is a must
Posted on 26 February 2013 by Mark Porter
Earlier this month, documents were laid in Parliament relating to one of the most controversial aspects of the Health and Social Care Act. Ostensibly, the Section 75 regulations are intended to 'ensure good procurement practice', but they have given rise to concerns about just how far the Act has opened up the NHS in England to competition.
The regulations follow considerable consultation with, and lobbying by, the BMA and other unions. While the Health and Social Care Bill was going through Parliament, we proposed amendments to the relevant clauses on competition. When the subsequent draft regulations were published for consultation last July we raised concerns in a detailed response, particularly about the continuing potential for conflicts of interest between commissioners and providers.
The BMA also submitted a response to the consultation as part of the wider NHS trade union group which made clear our opposition to the overall direction of travel set by the Act, and our preference for the NHS as ‘preferred provider’ as well as some specific points about the detail of the regulations.
The government has stated that the regulations seek to 'enshrine the principle that it is for commissioners to decide how to improve the quality and efficiency of services, and in doing so they should consider integration, competition and extending patient choice as possible means to attaining those benefits for patients'. Not great — given increased competition brings huge risks to the NHS — but better than where we were at the start of the Bill when there was no mention of integration, and no assurances that commissioners could determine the best approach for their populations.
However, differing legal analyses of the impact of the regulations in practice have emerged and there are growing concerns that commissioners — the clinical commissioning groups — may be forced to open up provision of almost all services to a market of providers.
Given this uncertainty about such an important issue, we have added our voice to calls for the Government to clarify further the scope of the regulations through a parliamentary debate. Debates of this sort are unusual but I think it’s in everyone’s interests to get this before Parliament as soon as possible.
Mark Porter is chair of BMA Council
Mark Porter's letter to Health Minister, Earl Howe, following publication of the revised regulations (11 Mar 2013, PDF)
Mark Porter's letter to the Lords Secondary Legislation Scrutiny Committee on the The National Health Service (Procurement, Patient Choice and Competition) Regulations 2013 (26 Feb 2013, PDF)
BMA briefing on Sections 75-77 regulations on procurement, patient choice and competition, March 2013