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NHS England sets out plan to revoke Lansley’s competition rules

BMJ 2019; 364 doi: https://doi.org/10.1136/bmj.l990 (Published 01 March 2019) Cite this as: BMJ 2019;364:l990
  1. Gareth Iacobucci
  1. The BMJ

NHS England has outlined plans to repeal divisive laws on competition and procurement that were introduced in the Health and Social Care Act 2012 in a bid to promote integration in the health service.12

The move, which was trailed in the NHS long term plan,3 is designed to make it easier for the NHS to integrate services by freeing commissioners from the burden of having to tender service contracts on the open market.

If approved by ministers, the legislative change, which was recommended by the cross-party Commons health and social select committee, would mark a major shift away from the pro-competition agenda championed by former health secretary Andrew Lansley, the architect of the 2012 act.

The rules governing competition in section 75 of the act were among the most contentious parts of Lansley’s legislation because they opened the door for increased private sector involvement in running NHS services.

In a consultation document setting out its proposals, NHS England said that the current rules were at odds with efforts to develop greater collaboration and that “targeted amendments” to primary legislation would free the NHS from “overly rigid” procurement requirements.

Existing rules should be scrapped and replaced by a “best value” test, which would give NHS commissioners the freedom to decide which circumstances would be appropriate to use procurement and competitive tendering, NHS England said. This test would take into account factors such as the likely impact on quality of care and health outcomes and whether commissioners were acting in the best interests of patients.

The document said: “Current procurement legislation can lead to protracted procurement processes and wasteful legal and administration costs in cases where there is a strong rationale for services to be provided by NHS organisations, for instance to secure integration with existing NHS services.”

Current legislation can also “discourage NHS organisations from collaborating to develop new models of care, in case this is challenged on the grounds of not treating all providers equally,” NHS England added.

The NHS long term plan can be implemented without primary legislation, but legislative change “could make implementation easier and faster,” NHS England said.

Other proposed changes include:

  • Merging NHS England and NHS Improvement to foster greater collaboration

  • Removing the Competition and Markets Authority’s powers to review mergers involving NHS foundation trusts

  • Giving NHS Improvement targeted powers to direct mergers or acquisitions involving NHS foundation trusts in specific circumstances

  • Giving clinical commissioning groups and trusts the power to create joint decision-making committees

  • Introducing a new shared duty for clinical commissioning groups and trusts to promote and contribute to a “triple aim” of better health, better care, and efficient use of NHS resources.

  • Giving the health secretary powers to set up new integrated care trusts in cases where local commissioners wish to bring services together under a single contract

  • Giving NHS Improvement powers to set annual capital spending limits for NHS foundation trusts in the same way that it does for NHS trusts

NHS England chief executive, Simon Stevens, said: “We heard from lots of people involved in developing the NHS long term plan that progress would be accelerated towards a better integrated health service if some targeted changes could be made to the law.

“The proposals we have set out are based on those initial conversations with local NHS leaders and senior clinicians, and we are now seeking a wider range of views before making our final recommendations to parliament.”

NHS England said it would share feedback with the Commons health and social care select committee to feed into the committee’s inquiry into the issue, before any new legislation being tabled.

The consultation on the proposed changes will run until 25 April 2019.

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