The Department of Health is looking to protect CCGs from procurement ‘lawyers and anoraks' by developing a competition regulation framework for them to operate within.
Speaking at a recent AQP event, organised by the NAPC and NHS Alliance, Bob Ricketts, the Department of Health's director of NHS provider transition said: ‘We're trying to construct something in the regulations now that says "you decide", (on competition).'
He said the Department of Health wanted to give CCGs ‘the confidence' they needed in using competition. ‘Actually working within a framework, that is then basically law and if follow that framework then you can be quite radical in your approaches without having to look over your shoulder all the time in terms of procurement lawyers or procurement anoraks coming after you.'
Last month, health secretary Andrew Lansley insisted CCGs could decide whether or not to use competition.
But commentators have said CCGs would still have to operate under pre-existing EU law and the Competition Act 1998, which a number of PCTs have been challenged on by private and NHS providers.
The regulations on how competition rules will apply to the health act are yet to be published. No secondary legislation is expected to be published regarding competition in the health service.
Mr Ricketts also revealed one option being looked within the DH was greater use of framework agreements, commonly used in mental health services. This is a variant on the normal any qualified provider model in that it limits the number of providers who can be included. This model would be suitable where commissioners were worried about ‘numbers and sustainabilty' he said.
He added the option of ‘no competition' would be used ‘fairly sparingly' but there were cases, for example quality stroke services, where ‘CCGs could make a strong case, where it would be fine under procurement law to turn around and say "for those services we're going to have an incumbent only".'
