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Providers set to challenge CCG tendering decisions in blow to integration agenda

Providers are increasingly looking to challenge CCGs’ tendering decisions on the basis they require integrated working, in a blow to the Government’s moves to promote greater integration, experts have warned.

Procurement experts and leading GPs have told Pulse that providers – mainly smaller ones, and including a standard GMS practice – are considering appeals against CCGs based on their tendering processes to either the healthcare watchdog or even the courts.

One procurement expert said she had collected a list of ‘a dozen’ providers who are building challenges, with the majority of these based on the requirements of some CCGs for providers to work with other organisations, which could be considered to be against UK and European competition laws, the expert said.

This is despite the Government’s claims that its competition regulations – set out in Section 75 of the Health and Social Care Act, and based on European competition regulations – will not affect moves towards integrated working.

Healthcare watchdog Monitor is already investigating two CCGs - Blackpool and Fylde and Wyre - over allegations by Spire Healthcare that they breached competition rules by directing patients away from the local private hospital, an accusation denied by the CCGs.

However, according to Janet Roberts, director of the procurement advisory service Tendering for Care, there are at least a dozen more providers considering a challenge to Monitor, or even going straight to the courts.

She told Pulse: ‘We are talking about a dozen providers actively looking at challenges. Most of it is to do with [CCGs advising providers to form] consortia, a process which can be uncompetitive.’ By consortia, she added, this referred to ‘encouraging providers to work together in particular ways that are not competitive’.

CCGs had little knowledge of competition law, she added:  ‘My fear is that the interactions I have had with CCGs thus far shows a complete lack of consideration being given to procurement regulations, and lack of knowledge of competition law – it is not on their radar this could happen. Somehow or other, unless it does get on their radar, it could be the next big scandal.’

There are provisions for promoting integration in the Health and Social Care Act, which was meant to protect any CCGs against challenges based on competition law.

However Mrs Roberts said that this might not be enough protection, as European competition regulations – which Section 75 is derived from – say that ‘nothing shall be done which in any way prevents, hinders or distorts competition’ and all tendering processes ‘must be handled transparently, fairly and with equal treatment’.

Ultimately it will be up to the courts to decide whether the HSCA protection is enough for CCGs wanting to promote co-operation and this is likely to happen when more CCGs begin tendering services, she added.  

‘So far, we have not had a massive block of tenders. When that gets going, you already have people out there saying “we have got to watch this”.’

Dr David Jenner, PMS lead at NHS Alliance, said that this was a big issue for CCGs. He said: ‘This is an issue all around the country. There is the national political ambiguity between competition and markets and the integration agenda. All CCGs are facing these challenges around any procurement exercise, but whether they materialise is another matter.’

‘My personal view is that people are only now realising what the HSCA actually means. I think even national politicians are now seeing what a beast it is.’ He cited the ‘classic example’ of Lewisham Hospital, where health secretary Jeremy Hunt was prevented from closing the local A&E department by the High Court, a decision recently upheld by the appeals court.

Dr Nigel Watson, chair of the GPC’s commissioning subcommittee, said: ‘I know of several companies talking about challenging CCG decisions and also taking legal action. We often hear of this and sometimes it is just bluster. If a patient has a stroke then you need services like an ambulance, diagnostics, primary care services and physio – and we need these to be joined up. Private companies are there to make profit, and I don’t have much sympathy if they are saying they cannot work as part of an integrated service for patients.’

The NHS Partners Network, which represents private providers, said that it knows of at least two organisation who have been seeking advice on possible challenges to CCG tendering decisions. The Network’s spokesperson could not provide details, however.

Monitor was unable to confirm how many challenges to CCG decisions it has received in time for publication.