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Exclusive: Competition ‘jeopardy’ for icon of integration

Commissioners of Torbay’s pioneering integrated care organisation are taking legal advice amid fears its progress could be placed “in jeopardy” by a requirement to competitively tender some services, HSJ has learned.

HSJ understands South Devon and Torbay Clinical Commissioning Group is taking legal advice on whether it must be tied to a commitment made by its primary care trust predecessors to tender south Devon’s community services in 2016.

These services were merged with integration pioneer Torbay Care Trust in 2011, under the national transforming community services programme, forming Torbay and Southern Devon Health and Care Trust.

Sources with knowledge of the situation said commissioners committed at that time to run an open competition for south Devon’s services in 2016, but the CCG was now trying to establish whether it was bound by that commitment, given that PCTs are now abolished.

HSJ understands the CCG has not yet decided its course of action. However, some in the group are concerned that putting the south Devon services out to tender might also force it to tender Torbay’s services.

This is reportedly because local GPs feel strongly there should be a single community provider for Torbay and south Devon, to avoid unequal provision between the patches.

A well placed NHS source in the area told HSJ: “The GPs, who are now the commissioners, feel there is a strong case that if they have to put south Devon out there’s a strong case for putting Torbay out, so we end up with one provider instead of two.”

King’s Fund chief executive Chris Ham said there was “real concern” that retendering Torbay and Southern Devon’s services would mean further years of uncertainty for the organisation, making it hard for the trust to retain “experienced leaders”. He was worried it could also throw a “big spanner in the works” of the trust’s proposed merger with acute foundation trust South Devon Healthcare.

He told HSJ: “I think the progress in Torbay is now in jeopardy unless they’re allowed to suspend the rules – if they are rules – on TCS retendering and continue down the path they’ve set around the proposed merger with the FT.”

He added that Torbay was the “jewel in the crown of integrated care” and it would be a “tragedy” if the trust found it “more difficult to not just sustain but build on the impressive record it has established over 10 years”.

A spokeswoman for South Devon and Torbay CCG said: “We have been reviewing the procurement regulations so that we can be very clear about how to accommodate these in our planning. 

“We’re getting valuable support at the national level as we work to achieve an outcome that will be in the best interests of patients and our local population, and of course we remain deeply committed to the principle that integrated care offers the best services.”

Readers' comments (13)

  • So - where is the promise from Ministers that CCGs will not be forced to tender, and will be able to decide on tendering locally?

    Empty promises.

    And the CCG fully understands the jeopardy to carefully constructed integrated services, built on trusting relationships established over years, from the sledgehammer which is mandatory tendering.

    Go CCG, go! I have absolutely no doubt that your public will be with you...

    CEO retd

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  • Oxfordshire, Torbay added to the list of competively tendered servcies when we had this debate in the 80s and 90s re support services it was deemed privatisation.

    The resultant chaos ended up in fragmentation, poor outcomes, rising infection rates, loss of experienced staff and a poor deal for patients.

    What do think the outcome will this time round?

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  • Its European Competition law. Vote UKIP if you want to rid this country from the purge of EU law.

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  • Anon - 4.21

    actually it's the curse of this government and nothing to do with voting UKIP - the law didn't apply to healthcare services until recent changes to legislation

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  • 5:20. Yes it did.

    People just chose to ignore the fact.

    The Public Contracts Regulations are far from new.

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  • 5.40 - you sure? Health Services are under Part B of the European procurement rules - hence why some member states do not mandate or even allow tendering for health services. This whole thing is really unclear. If all contracts should be tendered every so often - what about hospital/GP and other contracts. To market test these on a reasonably regular basis would bring the whole of commissioning rapidy to a halt. Plus the experience of tendering health services (eg OOHs, NHS111) does not have the best track record of improving services or even saving money.

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  • 5:40 back again. Absolutely sure, 8:15.

    Read the EU Interpretative Communication 2006/C 179/02 on sub-threshold and Part B procurement.

    The content of this IC is reflected in the updated PCR's that came into force recently.

    Worth bearing in mind the REQUIREMENT (i.e. not a "can fine" but a "MUST fine" situation) for the courts to impose dissuasive penalties for organisations found to be in breach of the regs.

    I am unaware of any UK cases so far, but there have been some brought by ECJ in other countries.

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  • 9.13 - the point surely, as you acknowledge yourself, is that it was ignored - additionally something has clearly changed otherwise why the blizzard of publicity and the need for legislation?- whatever the clauses and regs you're quoting you are ignoring the general point

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  • 9:13 back again.

    Not ignoring the fact that it was ignored, 9:54 - in fact I made that point in the first place (post @ 5:40)!

    I think there's a general concern about the fact that there are now independent organisations who have made it very clear that they ARE interested in providing medical services.

    As a result, the sector as a whole can't claim that they are meeting their obligations if they are ignoring all of the issues around transparency, non-discrimination etc.

    The inclusion of S75, and debate around this, has however brought the matter to the fore - in effect opening Pandora's Box - and, now that it's "out there" it is perhaps more likely that independents will challenge awards made without advertising etc.

    If you'd like a conspiracy theory, was s75 included in order to trigger this debate? Or by kicking off about s75, have those opposed to it accidentally forced things further in the opposite direction than if they'd let sleeping dogs lie? I don't think we'll ever know.

    Personally, I suspect s75 was intended as a gentle nudge to remind people to compete a few services and it's all blown up bigger than originally intended.

    Irrespective, as mentioned in earlier post, the concern I'd have if I were a CCG is that breach of the new PCR's requires the courts to impose penalties and "the
    overriding consideration is that the penalties must be effective, proportionate and dissuasive"

    See section 47N: http://www.legislation.gov.uk/uksi/2009/2992/pdfs/uksi_20092992_en.pdf

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  • The TCS contract question hangs over a number of providers, including many in the FT pipeline. Many of us face the prospect of re-tendering this year. Whilst my trust think that we can compete strongly for contract retention, the whole process would be time consuming and costly. Additionally it would create further uncertainty for our community based staff who enjoy being part of an integrated FT. If integration is now supposed to be encouraged, then some national steer on this would be most helpful.

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  • Whilst you lot are pondering over legality the ministers are lining up their board of director fees with the companies that will be taking over this lot. Get real it's all over!

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  • It's far from all over 9.52! Reality will come to bear...

    Despite what the law may say, if most of the rest of Europe doesn't regularly and repeatedly tender their healthcare services (and they don't) then there is a way through this.

    And the more that commercial procurement process are applied, the higher (much higher!) the transaction and "management costs" will be, and letting those rise will become politically unsupportable.

    That's not to say that commercial procurement doesn't have a place, it does in difficult and selected cases, but not everywhere all the time!

    CEO retd

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  • Interesting to re-read this story alongside today's headlines about full integration of health and social care by 2017...

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