Exclusive Two CCGs have incorporated a clause in their constitutions that requires them to consider alternatives to Any Qualified Provider and look at the ethical behaviour of providers before making commissioning decisions.
Bristol and Hackney CCGs have included a clause in their contract that calls on decision makers to consider ‘whether the use of approved lists is the most appropriate means of appointing providers’.
Rebecca Haynes, a barrister at Monckton Chambers who advised 38 Degrees, said that AQP was not the only route open to CCGs.
She said: ‘If European procurement rules apply, AQP might be one route they choose to go down. But they are not required to go down that route and it is not unlawful if they decide not to.’
The constitutions also compel them to take the ethical behaviour into account when appointing providers, saying all providers should be ‘good employers’, ‘respect the environment’ and not be involved in tax avoidance schemes.
The clauses have been developed by lawyers working with the NHS pressure group 38 Degrees. They state: ‘[The CCG] shall, wherever possible and where it is consistent with legal requirements, ensure that contractual provisions, procurement procedures and selection and award criteria are designed to ensure that contractors and providers are…reputable in their standards of business conduct.’
This comes as the Government has been forced to review controversial regulations that the GPC says will force CCGs to use competition ‘as a default’ when commissioning new services.
What the clauses say
‘We will, in relation to each purchasing decision concerning health care and social services…give consideration to whether the use of a framework agreement, including the use of approved lists, is the most appropriate means of appointing providers.’
‘[The CCG] shall, wherever possible and where it is consistent with legal requirements, ensure that contractual provisions, procurement procedures and selection and award criteria are designed to ensure that contractors and providers are…reputable in their standards of business conduct.’
Dr Anna Livingstone, a GP in East London, said the clauses would help address fears over the pressure to open up services to competition
She told Pulse: ‘GPs locally have bought in to the idea of why CCGs should adopt this clause. We are extremely worried that competitive commercial pressures will interfere with the quality of healthcare. This is the standard that should be taken locally.
‘There are concerns that private providers may appear to offer cheaper options and when those cheaper options come along, because there is a profit involved, there is not money available for services available for patients. The CCGs are entirely right to have this commitment to these provisions.’