Providers are increasingly willing to use the procurement, patient choice and competition regulations to challenge decisions, experts have stated, after HSJ analysis identified six of the first legal challenges to emerge.
Experts say the number of procurement and competition challenges is increasing as NHS organisations become more familiar with the regulations introduced in April last year.
Andrew Taylor, a former chief executive of the Co-operation and Competition Panel, said trusts were becoming more willing to take action. “I suspect it’s becoming more pronounced because the rules have been around for a little bit longer so people are more familiar with them and more comfortable with using them,” he said. He also suggested financial pressure could “drive” trusts into using the rules.
Mr Taylor cited a recent investigation by Monitor in Greater Manchester as an example of increased confidence in using the regulations. University Hospital of South Manchester and Stockport foundation trusts referred NHS England to the regulator over its approach towards the commissioning of specialist cancer services. The case was recently closed when NHS England said it would develop a new service specification.
Several providers are opting to mount legal challenges against commissioning decisions.
Procurement lawyer David Owens, a partner with Bevan Britten, said: “Certainly at the moment we are seeing a growth in activity in the procurement type challenges both from public sector and private sector organisations.”
The chief executive of one organisation bringing a legal challenge against a commissioning decision told HSJ that as there was only a 30 day window to lodge legal claims, and Monitor would not complete an investigation within that timeframe, legal challenges were the best approach.
“There’s no other effective mechanism to challenge a procurement decision unless Monitor become much more rapid in their responses,” he said.
A spokesman for Monitor said it had received 166 enquiries about the choice and competition rules “from a wide range of different organisations” since last April.
“The vast majority of these enquiries are handled without launching a formal investigation or using our enforcement powers, only three formal cases have been undertaken by Monitor in respect of choice and competition since April 2013,” he said.
“Monitor’s decision on whether to take formal or informal action will take into account the individual circumstances and its decisions are based on what is in the interests of patients.”
Jeremy Roper, a partner in the health commercial team at DAC Beachcroft LLP, predicted increasing numbers of challenges. “There used to be a view - particularly for private providers - that they wouldn’t challenge because they would get a bad name in the NHS and that would make it more difficult for them to win work in the future,” he said.
While Monitor is currently only formally investigating one case it has recently closed several investigations into challenges brought by both private and NHS providers.
Mr Roper said the “vast majority” of challenges did not get to court or become the subject of a Monitor investigation because “either the concern was unjustified or, where it is justified, the procurers say they’ll go back a stage or they will re-run the procurement process.”
He added: “For those who are procuring it’s easier to go back a stage or even re-run the procurement in its entirety than find yourself at the wrong end of litigation or a Monitor investigation.”
Procurement and competition challenges since April 2013
- Spire Healthcare against Blackpool Blackpool CCG and Fylde and Wyre CCG (to Monitor; ongoing). Spire claims commissioners are directing patients who require elective care away from Spire Fylde Coast Hospital towards Blackpool Victoria Hospital.
- University Hospital of South Manchester Foundation Trust and Stockport Foundation Trust against NHS England (to Monitor; closed). The two trusts referred NHS England to Monitor over the commissioning of its specialist cancer services. Case was closed after NHS England said it would develop a new service specification.
- Thornbury Radiosurgery Centre against NHS England (to Monitor; closed). Complaint against NHS England for not commissioning gamma knife radiosurgery services from the provider. Case was closed after NHS England entered into a contract with Thornbury.
- Northern Doctors Urgent Care against Newcastle North and East, Newcastle West, North Tyneside and Northumberland CCGs (legal route). CCGs split the out-of-hours provision into three parts. Northern Doctors Urgent Care was the preferred bidder for North Tyneside but not the other two areas.
- King’s College Hospital Foundation Trust against Dartford, Gravesham and Swanley CCG (legal route). Dartford, Gravesham and Swanley CCG agreed that Moorfields Eye Hospital Foundation Trust could set up a clinic at Dartford and Gravesham Trust’s Darent Valley Hospital. King’s complained that a tendering process should have been held to provide ophthalmology services.
- Lewisham and Greenwich Trust against Bexley CCG (legal route). Lewisham and Greenwich issued legal challenge after the CCG issued a contract for musculoskeletal work in the borough, overriding the South London Healthcare Trust’s trust special administrator’s recommendation.
- Competition and co-operation
- KING'S COLLEGE HOSPITAL NHS FT
- LEWISHAM AND GREENWICH NHS TRUST
- NHS Bexley CCG
- NHS Blackpool CCG
- NHS Brent CCG
- NHS co-operation and competition panel
- NHS Dartford, Gravesham and Swanley CCG
- NHS England (Commissioning Board)
- NHS Fylde and Wyre CCG
- NHS Newcastle North and East CCG
- NHS Newcastle West CCG
- NHS North Tyneside CCG
- NHS Northumberland CCG
- North East
- Royal Brompton & Harefield NHS Foundation Trust
- STOCKPORT NHS FOUNDATION TRUST
- UNIVERSITY HOSPITAL OF SOUTH MANCHESTER NHS FOUNDATION TRUST