Monitor’s chief executive asserts his organisation is open; and was the basis for yes vote on section 75 legal?

Monitor is listening carefully

At Monitor we believe that our open and transparent style of regulation complements our main duty to promote and protect the interests of patients. So, we have undertaken a huge amount of engagement with the health sector over recent months (“Monitor needs to be clearer about its regulation style”).

We have launched consultations on almost every aspect of the new powers we inherited from April, and also on the changes to existing powers brought about by the government’s health reforms. We have listened carefully to the representations made by those affected to ensure that we can continue to effectively fulfill our statutory duties without putting undue burdens on those we regulate.

For example, we have published guidance on a wide range of issues that might affect trusts and commissioners since January, including information on how trust special administrators should operate, and advice on what commissioners can do to safeguard patient services when a local provider gets into financial difficulties.

If there has been any delay in making aspects of our approach clearer, that is because like the rest of the sector we were waiting for Robert Francis QC to make his recommendations. Now that the health system has agreed a way forward, we can press ahead with engaging stakeholders in our draft three-year corporate strategy we are currently developing.

David Bennett, chief executive, Monitor

Yes vote was legally wrong

After sitting through over two hours of debate in the House of Lords last week on competitive tendering in the NHS, it’s easy to understand why argument has raged over the benefits or otherwise of competition in the NHS, and will continue to rage.

‘What I found truly shocking was to witness more than 200 of our legislators trooping through the “yes” lobby on the basis of a government minister’s assurance which was legally wrong’

What I found truly shocking, however, was to witness more than 200 of our legislators trooping through the “yes” lobby on the basis of a government minister’s assurance about our European legal obligations which was not just legally debatable, but legally wrong.

According to Lord Howe, the law on competitive tendering in the NHS “hasn’t changed” as a result of section 75 of the Health and Social Care Act 2012 and the regulations under it approved by the House of Lords on Wednesday. That statement was simply wrong - as any student of EU procurement law could tell you.

Prior to the government’s legislation, health and social care services were identified as “part B” services which were not subject to advertising or competitive tendering under EU procurement law. In other words, those who purchased health and social care services were free to choose to go out to tender or not without fear of legal redress. After the government’s legislation, NHS commissioners must invite tenders unless they are satisfied that there is only one provider who is capable providing the required services.

Health minister Lord Howe

Lawyers can and will argue about the “only capable provider” test, but what is not arguable is that a failure to comply with that test will now be actionable in the courts under the new section 75 regulations - for the first time ever. As Lord (David) Owen correctly pointed out, that is not a requirement of existing EU procurement law. It will only happen in England as a result of this gvernment’s legislation.

So I think it’s time for the government to share its legal advice on this issue with Parliament and the public. I shan’t be holding my breath.

Hamish Sandison, solicitor (England and Wales), attorney (Washington DC)

Trailer talk

As Daloni Carlisle reports, uncertainty over reform is not the only thing stopping new NHS buildings (Funding the Future supplement). Improving patient choice and most importantly the treatment experience is forcing trusts to review their clinical environment strategies.

It is no longer necessary for thousands of patients across the UK to make long journeys to receive specialist treatment at regional centres - mobile units are solving this challenge by taking treatment closer to patients.

For example, the majority of chemotherapy treatment can now be delivered in the community inside medical trailers - making it more convenient for the patient, putting them at ease and reducing congestion in treatment centres. Welcoming and restful mobile environments can be created without compromising service quality.

Take our latest deployment for the Clatterbridge Cancer Centre. Its bespoke community cancer treatment unit helps to reduce the cost, burden and strain of travelling for the patient and their families. Its unit parks in a busy supermarket carpark and treats up to 25 people per day. Patient feedback has been overwhelmingly positive.

“Going mobile” has already proved that delivering care closer to people’s homes enhances their wellbeing and experience of the NHS. It is not an overstatement to say the benefits are life changing.

I look forward to watching this patient-centric approach foster and grow.

Keith Austin, managing partner,

What is the wider impact of 111?

On behalf of Priority Dispatch, I welcome steps by NHS England to “stabilise” the delivery of the NHS 111 service and review the performance of individual providers (“NHS England could ‘manage’ 111 market”).

However, in order for this review to be effective it must look beyond the ability of providers to answer calls within a target time frame.

According to NHS England, a number of 111 providers are already delivering a good service. Of course, the quality of service and the capability of providers to answer calls within a target time frame are crucial factors to ensure the effectiveness of the NHS 111 service. However, it is also important to take into account the impact that the service has had on emergency services and the continuum of care provided to those needing assistance.

Ambulance trusts and A&E departments have reported increased demand for their services following the implementation of NHS 111. Sheffield University’s report on the four pilot areas has also highlighted this worrying trend, which include those sites that are now considered to be providing a good service.

If real progress is to be made to improve and stabilise the delivery of the NHS 111 service it is important that the NHS England review considers the wider impact of 111 on other health services and considers how providers can address these issues as well.

Ron McDaniel, senior vice president, Priority Dispatch