Doctors’ leaders urge government to amend commissioning regulations

BMJ 2013; 346 doi: (Published 28 March 2013) Cite this as: BMJ 2013;346:f2091
  1. Clare Dyer
  1. 1BMJ

Doctors’ and nurses’ leaders are urging the government to amend controversial regulations on commissioning NHS health services in England amid fears that they could require competitive tendering for most services.

The BMA and the Royal College of Nursing called on the government on 28 March to take urgent action to clarify the uncertainty, just days before the new “section 75” rules come into force on 1 April, amid the biggest shakeup of the NHS for a generation.

John Ashton, president elect of the UK Faculty of Public Health, and 33 other senior public health specialists have written to Stephen Dorrell, chairman of the parliamentary health select committee, expressing concern that the NHS (Procurement, Patient Choice and Competition) (No 2) Regulations 2013 were coming into force “with inadequate consultation and confusion over their legal impact.”

Department of Health officials have already redrafted the regulations once after pressure from GPs, royal colleges, and opposition politicians. But legal opinions obtained by the campaigning group 38 Degrees say that the regulations would still oblige the new clinical commissioning groups to put every service out to tender unless there was only a single capable provider available to provide the service.

The group, which opposes privatisation in the NHS, says that the rules conflict with assurances given by the health minister Simon Burns that it would be for commissioners to decide which services to put out to tender.

The health department issued an eight page reply to the legal opinions from the healthcare law expert David Lock QC and the competition lawyer Ligia Osepciu, denying that the regulations would have the effect the lawyers assert.

In its response the department said, “The purpose of the regulations is simply to transfer to the new NHS commissioners the procurement requirements that currently apply to primary care trusts and to provide for Monitor—a sector specific regulator with expertise in healthcare—to enforce the rules rather than action through the courts.”

It added that “the circumstances in which a commissioner may award a contract without a competition under the regulations will be identical to the requirements of existing procurement law, as reflected in mandatory guidance to the NHS applicable since 2008.”

Lock told the BMJ, “This response appears to duck the main problem with the regulations, but it confirms that the only circumstances in which a commissioner can avoid a tender is where there is a single provider. The reference to ‘mandatory guidance’ misunderstands the present legal position and fails to take account of the present flexibilities open to NHS bodies.

“Commissioners presently work under guidance, not rules. From 1 April they will work under rules, from which there is no escape even if they have a very good reason not to tender a service. Overall, the Department of Health response seems unlikely to satisfy anyone who is concerned about the effect of these regulations.”

Mark Porter, chairman of council at the BMA, said, “We urge the government to give immediate and absolute assurances about the limits of competition, changing the wording of the regulations if this is what it takes, to ensure that its prior commitments match the reality on the ground.

“Commissioners need to be completely clear about the rules governing commissioning and to know that they will be allowed to make the best decisions for their patients.”


Cite this as: BMJ 2013;346:f2091