Draft rules give Monitor power to investigate anticompetitive behaviour by commissioning groups

BMJ 2012; 345 doi: (Published 20 August 2012) Cite this as: BMJ 2012;345:e5618
  1. Matthew Limb
  1. 1London

The government has drafted new rules to police conflicts of interests and anticompetitive conduct involving the new clinical commissioning groups in England and has invited views on whether additional safeguards are needed.

A consultation published on 15 August by the Department of Health outlines the regulations and the role of the health regulator Monitor in investigating alleged breaches of conduct.1

It says that commissioners would be “specifically prohibited” from awarding a contract to a provider “where that decision is the result of an interest in the provider.”

In the event of complaints, commissioners would have to show how they managed the potential conflict of interest and that contracts were awarded fairly. Monitor would be able to take action in the event of a breach.

Monitor would be able to “direct commissioners to remedy breaches of the regulations” and would have the power to “direct a commissioner to withdraw or vary a tender for the provision of services.”

The health secretary, Andrew Lansley, said that the government was proposing to “strengthen” regulations to protect the interests of patients and the wider public.

There has been concern that GPs in clinical commissioning groups who have a stake in other health concerns or businesses might favour these providers with contracts. There has also been criticism of commissioners setting disproportionate requirements that prevent capable providers bidding for contracts.

A new requirement would prohibit commissioners from treating providers unfairly, especially on the basis of whether they are in public, private, or voluntary ownership.

The proposed new rules aim to give statutory force to measures in existing codes of practice and guidance for commissioners and to define enforcement powers passing to Monitor from 2013.

The consultation document includes regulations to combat anticompetitive behaviour.

Commissioners would be prohibited from reaching agreements or taking any other actions that restrict competition where this is against patients’ interests.

The regulations do not specify the circumstances in which commissioners should tender services or extend patient choice of any qualified provider locally. Instead, it will be for commissioners to decide where it is appropriate to extend choice or use competition to improve services.

Commissioners may take action that restricts competition “where these restrictions are indispensable to delivering better integrated care,” says the document.

Monitor could decide itself to investigate anticompetitive conduct rather than wait to receive a formal complaint. The idea is that some interested parties might be reluctant to complain for fear of damaging their relationships with commissioners.

A second consultation has been launched on proposals for implementing a new licensing regime for providers of NHS services.2 This document, Protecting and Promoting Patients’ Interests: Licensing Providers of NHS Services, invites views on a range of issues including the proposed fees that Monitor can levy for licence breaches.

It proposes that Monitor would be able to fine providers up to a maximum 10% of their NHS income. Providers would be exempt from holding a licence if they employ fewer than 50 people or their NHS turnover is below £10m (€12.7m; $15.7m).

Both consultations run until 26 October 2012.


Cite this as: BMJ 2012;345:e5618


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