Intended for healthcare professionals


Challenges of EU competition law for general practice commissioning

BMJ 2011; 342 doi: (Published 07 April 2011) Cite this as: BMJ 2011;342:d2071
  1. Rupert Dunbar-Rees, general practitioner and healthcare management adviser 1,
  2. Robert McGough, solicitor 2
  1. 1Healthcare Advisory Practice, BDO, London W1U 7EU, UK
  2. 2Beachcroft, Leeds LS1 2LW, UK
  1. Correspondence to: Rupert Dunbar-Rees Rupert.Dunbar-Rees{at}
  • Accepted 11 March 2011

Rupert Dunbar-Rees and Robert McGough explore the choice and competition issues facing general practice commissioners

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

General practice consortiums as contracting authorities

The first issue to establish is whether general practice consortiums will be bound by procurement regulations concerning the spending of public money and EU competition law in general. This depends on whether they will be deemed “contracting authorities governed by public law,” and therefore bound by the regulations.7 Our view is that consortiums will be bound …

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