The health white paper1 has generated considerable debate, but there has been little discussion about the practical implementation of the processes underpinning its requirements. Many commentators have drawn parallels between some features of general practice commissioning and previous commissioning incarnations, such as fundholding and total purchasing pilots. However, the regulatory landscape has changed beyond all measure since then,2 3 4 and this fundamentally affects the way consortiums purchase support services and healthcare.

The National Health Service has moved from a position 20 years ago where most healthcare spending was essentially the state purchasing care from itself, to the current proposals to extend the “any willing provider” (or any qualified provider) model and further distance NHS hospitals from the state.5 All providers of care, including the independent sector, are set to be able to compete for NHS funded services on an equal footing.1 Since the state is increasingly less a direct provider of care, it could be argued that EU competition law should apply to the allocation of public spending with providers. Surprisingly, the Department of Health’s impact assessment on the reforms does not consider the effect of EU competition law, even in the sections covering economic regulation.6 We examine the effect of EU and UK regulations concerning the spending of public money on general practice commissioning and the wider NHS.2 3 4