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Peers reject high profile bid to halt NHS competition rules

BMJ 2013; 346 doi: https://doi.org/10.1136/bmj.f2706 (Published 25 April 2013) Cite this as: BMJ 2013;346:f2706
  1. Adrian O’Dowd
  1. 1London

Peers have rejected a motion that would have forced a change to the rules governing competition when GPs are commissioning health services.

In a vote in the House of Lords on 24 April 254 peers rejected the motion put forward by Labour’s health spokesman, Philip Hunt, to annul the regulations, while 146 voted to support him.

During a two and a half hour debate peers put forward arguments about the extent to which the section 75 regulations in the Health and Social Care Act would open up all NHS services to market competition and result in possible legal challenges to clinical commissioning groups (CCG) from the private sector.

There has been significant opposition to the regulations from the BMA,1 the Royal College of General Practitioners, and other bodies, which claim that they will force almost every part of the NHS to be opened up to compulsory competition.

Last month the health minister Norman Lamb said that the regulations would be rewritten to make clear that “no CCG will be forced into competitive tendering,” and new regulations were published on 11 March.2

However, critics have said that they showed no significant improvement on the previous version; and on the day of the debate the Daily Telegraph published a letter signed by more than 60 doctors, professors, healthcare workers, and NHS campaigners calling for the regulations to be dropped.3

The BMA said last week that the regulations should be replaced with new rules that “unambiguously reflect government assurances that commissioners will not be forced to use competition when making their commissioning decisions.”

Opening the debate in the Lords, Hunt said, “There is a genuine fear in the system among advisers to clinical commissioning groups and in a lot of other organisations that the regulations will create a culture of defensive contracting, where commissioners will go out to tender if there is any doubt that a failure to do so will expose them to a possible damages claim.

“They [the regulations] are part of the government’s drive to shift the culture of the NHS from a public service into a public marketplace and are at a piece with a number of other ominous developments which is sending the NHS along the same path.”

NHS services were likely to be placed “in the middle of a costly bidding war” with private companies, Hunt argued, with discrete services “cherry picked for profit,” while the NHS would be left to run the more complex and expensive services with less money.

Responding, the Liberal Democrat peer Timothy Clement Jones said, “The rules in the regulations simply and accurately reflect the rules that are already imposed by EU [European Union] law on the NHS. These rules were put in place long before the coalition came to power in May 2010.

“The fact is that these revised regulations are as good as it gets within the constraints of EU procurement law. Commissioners will not be forced to tender and will not be forced to create a market where none exists.”

The Labour peer Norman Warner, a former health minister, said, “This set of contexts in which the NHS has to operate means that we have rather a complex area for NHS commissioners to operate in. They need a clear set of rules to guide their conduct on procurement and competition, and that is provided for in section 75 of the legislation, which we passed after a great deal of discussion and debate.”

The crossbench peer David Owen said, “In this regulation we are presented with the full impact of the 2012 act. It has been hitherto denied, but within this act is the potential—and I agree somewhat with the remarks that it will take some years for it to evolve—to have a fully marketised National Health Service. If that is the choice, the people of this country should be told about it.

“I warn this house: do not think that this is a minor step. If this goes through, the NHS as we have seen it, believed in it, and persuaded the electorate that we support it, will be massively changed.”

The Liberal Democrat peer Shirley Williams said, “I cannot find in the most careful reading of the regulations and our long debate on these two sets of regulations anything that bears out the widely spread view—extensively spread by the social networks—that this is all about bringing to an end the National Health Service as a public service and introducing overall privatisation.”

The crossbench peer Sheila Hollins, the current BMA president, said, “Given that major NHS change took place earlier this month, there is a pressing urgency to address once and for all the issue of whether commissioners will be forced to use competition.

“We cannot risk commissioners being unclear about what they can and cannot do. It will be to the benefit of everyone to ensure that they have a clear understanding about the rules governing commissioning. There is widespread anxiety among doctors, who after all are the new commissioners.”

The government health minister Earl Howe said, “There is no government agenda to privatise NHS services—quite the contrary. It is NHS commissioners and no one else who will decide whether, where, and how competition in service provision should be introduced.

“What we are doing, above all, is having a set of arrangements in place that will protect the interests of patients.”

Speaking after the vote, Clive Peedell, co-leader of the National Health Action Party, which was formed by doctors and public health experts to oppose the government’s changes to healthcare,4 told the BMJ, “The result is disappointing but expected because of the government majority.

“The next step for us is to raise awareness of what this is going to mean for the future of the health service. We are keen to try and push a policy of informing the public that they should choose their local providers and use patient choice to choose those providers that are publicly funded.

“The private providers will only provide profitable services and that will, by definition, suck money away—in a single care system—from the local provider. You will end up with mergers, hospital closures, and people will lose their local services.”

Notes

Cite this as: BMJ 2013;346:f2706

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