CCGs open services to competition out of fear of rules

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More than a quarter of clinical commissioning leaders say they have opened NHS services up to competition – or are currently doing so – only because they fear they would fall foul of competition rules if they did not, an HSJ survey has found.

And a fifth of respondents to HSJ’s latest CCG Barometer, carried out with PwC, said their groups’ decisions had been formally challenged under controversial NHS competition regulations.

The survey asked clinical commissioning groups’ most senior leaders if they had invited, or were currently inviting, competition for services in cases where they would not have done so if not for competition rules or concerns about the rules. More than a quarter – 29.1 per cent – said they had.

Two thirds said they had not, and the remainder did not know.

There were 103 respondents across 93 CCGs, 96 of whom were chairs or accountable officers, the equivalent of a chief executive. The remainder were other governing body members. There are 211 CCGs in total.

Examples of services put out to competition included out-of-hours primary care, older people’s services, and other community services. Other services mentioned included audiology, ultrasound, podiatry and phlebotomy, which have in some cases been commissioned from GP practices.

The survey’s findings appear to contradict indications by ministers that CCGs would be able to decide when to use competition. Former health secretary Andrew Lansley wrote to CCG leaders in 2012, stating: “It is a fundamental principle of the [government’s reforms] that you as commissioners, not the secretary of state and not regulators should decide when and how competition should be used… Monitor would not have the power to force you to put services out to competition.”

The survey also asked CCG leaders about other consequences of the new architecture of NHS competition regulation introduced by the 2012 Health Act, and the controversial “section 75” competition and choice regulations introduced under it.

Around 20 per cent of respondents said they had experienced formal challenges to commissioning decisions or arrangements under competition, patient choice and competition regulations, while 57 per cent said they had experienced informal challenge or questioning (see chart).

Some 65 per cent said they had experienced increased commissioning costs as a result of the regulations, while 46 per cent said they had not been able to change services in the way their CCG would otherwise have wished to due to the regulations, or concerns about them.

The survey found 36 per cent said their plans for the organisational future of their areas’ providers – such as merging or becoming foundation trusts – had been hampered because of the regulations.

North East Lincolnshire CCG chief clinical officer Peter Melton, who is co-chair of the NHS Commissioning Assembly, said there needed to be further simplification of the rules. He said: “We haven’t properly articulated the rules yet in terms of where it is and isn’t appropriate to apply competition.”

A Monitor spokesman said: “We have changed the way we work to focus on local commissioners and are engaging with them across the country to help them work through the issues that are important to them in making good decisions in patients’ interests.

“The rules don’t stop commissioners making good decisions on behalf of patients, and if they are in need of support or guidance then they can contact us and we will continue to offer informal advice.”