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BMA demands withdrawal of regulations making GP commissioners put most services out to tender

BMJ 2013; 346 doi: http://dx.doi.org/10.1136/bmj.f1968 (Published 22 March 2013) Cite this as: BMJ 2013;346:f1968
  1. Gareth Iacobucci
  1. 1BMJ

The BMA’s General Practitioners Committee has increased pressure on the government to shelve controversial legislation that would open up large parts of the NHS in England to competition, after it passed a motion calling for the regulations to be withdrawn.

The move came as the House of Lords Secondary Legislation Scrutiny Committee accused ministers of allowing “insufficient time” for proper scrutiny of the revised regulations, tabled under section 75 of the Health and Social Care Act.

The government last week hurriedly redrafted the legislation1 after concerns that the regulations would force the new clinical commissioning groups to open up nearly all NHS services to the competitive market from 1 April, despite previous ministerial assurances to the contrary.2

But the General Practitioners Committee said this week that the amendments did not answer its fundamental concerns and voted formally to oppose and to call for the legislation to be withdrawn, in a motion passed at its committee meeting on Thursday 21 March.

The decision came as an NHS legal expert poured cold water on the Department of Health’s claims that the rewording of the legislation would leave clinical commissioning groups free to decide when to place NHS services out to competitive tender.

David Wrigley, a GP in Carnforth, Lancashire, and the committee member who proposed Thursday’s motion, said, “This is a momentous decision where the body that represents UK GPs now opposes the regulations that enforce further privatisation on the English NHS. It is time for politicians to listen to the professionals who work with patients day in, day out in the NHS.”

Laurence Buckman, the committee’s chairman, added, “The secondary legislation still doesn’t change the situation. The GPC [General Practitioners Committee] were very angry. This is about commissioning GPs not having the freedom to commission in a way that they think is fit.”

Richard Vautrey, deputy chairman of the committee, said that it wanted to see “a thorough debate” in parliament about the changes. “This is too important to simply pass by without MPs having the opportunity to explore all of these issues,” he said.

The view was echoed by the House of Lords Secondary Legislation Scrutiny Committee, which, in a report published this week,3 said it “sympathised” with the view that the health department should “revoke the original regulations and conduct further consultations before introducing new legislation.”

It said, “It is very clear that there is no common understanding in the health sector of the requirements of the procurement rules contained in the substitute Regulations.

“We are firmly of the view that the Department has allowed insufficient time to set this system up properly and enable thorough scrutiny.”

It added, “Whilst it is open to the Government to impose on the health sector provisions that may not be popular, it cannot be good or effective policy-making to seek their immediate implementation when they are so widely misunderstood. On that basis, we reiterate . . . that these regulations should be drawn to the special attention of the House on the ground that they may imperfectly achieve their policy objective.”

David Lock, a barrister who specialises in NHS procurement and contracting, said that it was “disingenuous” of the government to continue to claim that the regulations allowed commissioners the freedom to opt when to use competition.

In a posting on the NHS Rationing website Lock wrote, “[The] regulations require a CCG [clinical commissioning group] to put every arrangement that they make for delivering NHS services out to the market unless the CCG is satisfied that the services can only be delivered by a ‘single provider.’

“There are many instances where a CCG might think that it would not serve the interests of patients to have a competition but where there is a theoretical chance that more than one provider could deliver the services. The rules now require a market competition in all such cases.”

He added, “Every CCG will be forced to run a tender exercise or face legal action from a disappointed private contractor. The regulations say they must do so even if it is plainly not in the interests of patients for the NHS to run a competition. Hence, the statement that competition will only be forced on the NHS when CCGs decide that running a competition is in the interests of patients is just wrong.”4

Notes

Cite this as: BMJ 2013;346:f1968

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