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DH revises competition rules to include opt-out to preserve integration

CCGs will be able to exempt themselves from putting services out to competition if they can demonstrate that it will undermine integration, under the Government’s redraft of its controversial competition rules.

But they will still have to demonstrate that services can only be provided by a ‘single provider’ or be forced put that service out to competition, under the revised legislation.

The rewrite, prompted after a backlash from GP leaders and campaigners, has been cautiously welcomed by the BMA, although it warned that it was still concerned about the overall ‘direction of travel’ of the NHS towards the greater use of competition.

The Government removed a provision that stated that ‘technical reasons’ and matters of ‘extreme urgency’ were the only exemptions to putting a service out to competitive tender.

However, it retained the provision that CCGs can only award a contract without competition when it is ‘satisfied that the services to which the contract relates are capable of being provided only by that provider’.

The new rules also include a provision that a CCG can engage in anti-competitive behaviour if it can prove that ‘to do so is in the interests of people who use health care services for the purposes of the NHS’, including integration of services or co-operation between providers.

Dr Mark Porter, BMA chair, said they were ‘pleased’ the Government has listened to the concerns over the rules, but called for a parliamentary debate to clarify how they should be used.

He said: ‘The redrafted regulations, if supported by clear guidance, should provide greater clarity on the commissioning process. However, we remain concerned about the overall direction of travel for the NHS.

‘It is vital that competition is not allowed to undermine integration, innovation, or clinical autonomy. There still needs to be a full parliamentary debate, to provide absolute clarity that CCGs will have the freedom to decide how best to secure high quality services for local populations.’

RCGP chair Professor Clare Gerada told Pulse the rules would still cause problems for CCGs: ‘The problem is you can never ever say that only one provider can provide the services,’ she said.

Health minister Earl Howe said they had taken the concerns about the regulations ‘very seriously’ and that they want to put ‘beyond doubt’ their intended purpose. We have acted quickly to address the issues and lay revised regulations.

He 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. That would compromise the power and freedom we are giving to local doctors and nurses.I believe we now have a set of regulations which puts this beyond doubt.’

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Readers' comments (10)

  • I welcome the DH's decision to revise the rules .. sensible and cost effective,preserving the NHS should be a priority and a given.

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  • "being provided only by that providor"- slightly weasle words, does it mean "effectively " or "absolutely".
    If it means
    "," because of existing service integration considerations" then I welcome the change in wording.
    The cynic in me however thinks "absolute" criteria i.e. "only one organisation in the world has the patent" may be the implementation in practice, which is not a position change at all.

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  • Vinci Ho

    We are not legal expert but the question here is :
    Is this really protective as far as CCGs making the 'final' decision or is this still leaving a loop hole for difference in interpretation of these legal wordings , allowing AQPs to challenge CCGs in courts frequently ??

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  • Utter tosh. Sounds like solicitors playing with the words to dampen down the backlash from the GPs.

    The wording keeps the CCG wide open to challenge. If any other service provider claimed they are just as capable of providing the service, CCG will have to put it out to tender.

    Wake up people, this isn't to protect the commissioners, it's a bait to lure us into the trap of false sense of security.

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  • This will be used to farm out services to other providers. The change in the wording is basically meaningless. The condition they have set is unattainable. There is always going to be someone else that can do the job.

    What is however interesting was that the government felt a need to produce the statement at all. There has been such a breakdown in communication between us which is really very sad. This maybe a peace offering to the profession. We all know that nothing has changed, but I am curious as to the reasoning behind the statement.

    - anonymous salaried!

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  • I agree that these are cosmetic changes and remain very dangerous for CCGs and the NHS. The provisions will be almost impossible to meet. CCGs will still need to do a huge amount of work whether being forced to compete or demonstrating why only a single provider can perform the tasks. Monitor still rules and CCGs will still be open to challenge from corporations. No more freedom, more cost, a lot more fear - and almost certainly worse services for patients.

    And this is now combined with a EU/US trade agreement which will bring international companies even more easily directly into the NHS.


    Brian Fisher

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  • There can be no confidence stemming from these cosmetic changes. CCGs will still be open to challenges as has been made clear in the above comments and nothing will have been changed a jot.
    The amendments do not achieve what the Government deceptively claims they do and they should again be rejected by all concerned. To rely on future detailed guidance would be foolhardy. We will all be bound by what the regulations say, not what we might like them to say and no doubt the AQPs will challenge whatever the future guidance might say if it suits their purpose. More money for Lawyers - less money for Patients. Not a happy thought.

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  • Not too sure what people expect really. DH can't change EU Procurement regulations at will.

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  • On a separate article about public health tendering,

    "Janet Roberts, director of the procurement advisory service Tendering for Care, said in practice local authorities will run a full tendering process for the public health LESs to cover themselves from possible legal action. She said: ‘The easiest way to demonstrate that the principles have been employed is actually to run a tender process."

    This effectively applies to CCG as well, I assume. So no change there!

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  • Mark Struthers

    That Lucy Reynolds is right ...

    ... is truly terrifying

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