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NHS England wants to tear up Health and Social Care Act competition rules

The Government should end ‘counterproductive’ competition legislation for the procurement of health services, according to NHS England’s long-awaited plan for the future of the health service. 

The plan, which maps out NHS’s future over the next 10 years, proposes that competition rules which force the tendering of healthcare contracts be scrapped, saying that ‘the rules and processes for procurement, pricing and mergers are skewed more towards fostering competition than to enabling rapid integration of care planning and delivery’. 

The suggestion comes as GPs warned at the outset that the Health and Social Care Act 2012, which came into force from April 2013, would be detrimental to the integration of services.

The end of automatic tendering and proposed new legislation would free up NHS commissioners to decide the circumstances in which they should use procurement, subject to a ‘best value’ test to secure the best outcomes for patients and the taxpayer, according to NHS England.

The new plan said that it would cut delays and costs of the NHS automatically having to go through procurement processes, acknowledging that the current rules led to ‘wasted procurement costs and fragmented provision, particularly across the GP/urgent care/community health service workforce.’

It said: ‘We propose to remove the Competition and Markets Authority’s (CMA) duties, introduced by the 2012 Act, to intervene in NHS provider mergers, and its powers in relation to NHS pricing and NHS provider licence condition decisions. This would not affect the CMA’s critical investigations work in tackling abuses and anti-competitive behaviour in health-related markets such as the supply of drugs to the NHS. We propose similarly dispensing with Monitor’s 2012 Act competition roles, so that it could focus fully on NHS provider development and oversight.’ 

The current competition legislation was brought in by the Conservative’s Health and Social Care Act 2012 by then health minister Andrew Lansley.

BMA chair Dr Chaand Nagpaul said: ‘Since the inception of competition rules embodied in the Health and Social Care Act in 2012, the BMA has consistently called for such a wasteful use of resource to be scrapped; so to see NHS England recognise this is long overdue.

‘At a time when the NHS can least afford it, too much time and money is currently spent on tendering processes for contracts. Given the long waits for treatment and the cash-strapped state of our health service, time and money should be spent on the frontline, delivering better care to patients, not on costly tenders. These competition rules have also resulted in a fragmented NHS driven by commercial motives rather than providing patients with seamless care.’

Dr Nagpaul suggested CCGs ‘should have the flexibility to commission services to suit local need, not to suit competitive tendering regulation and without the fear of having to pay out millions to private providers for falling foul of existing legislation, as has been the case in recent years’.

He added: ‘When government rhetoric is centred around integration within the health service, independent providers bidding on time-limited contracts sits entirely at odds with this philosophy. Only by removing the requirement to put service out to tender, can local systems work together to ensure cohesive patient-centred healthcare.

‘NHS England’s ambitions here are clear, and we strongly recommend Parliament take forward these proposals and push through these legislative changes.’

The Government’s much anticipated long-term plan for the future of the NHS has promised to increase primary care funding by £4.5 billion, £1 billion more than set out by Theresa May last year.  

GP practices will be ‘mandated’ to join primary care networks of 30-50,000 patients in return for a major funding boost, according to the plans for the new GP contract.

It also said that digital GP providers would ‘help expand GP workforce’, claiming that digital providers and the move to larger groupings of practices would be more attractive to GPs and practice staff.