Health secretary Alan Johnson has said he is concerned investigations by the co-operation and competition panel could slow down trust mergers required by the Department of Health’s failure regime.

Under the regime a “challenged” trust, which fails to make significant improvements within 12 months, will be taken over by a special trust administrator who will hold a 30-day consultation on its future.

One of the DH’s favoured solutions in such cases is merger with a more successful trust.

But in his response to the panel’s consultation on how it will conduct investigations into allegations of anti-competitive practice, Mr Johnson says he is concerned the panel could drag a merger investigation out over 80 days, even where competition and choice are relevant to only a minority of its services.

In a letter to panel chair Lord Carter Mr Johnson says: “I have concerns to ensure the panel’s approach remains proportionate when swift action is needed in the rare circumstances, where, despite an NHS organisation receiving significant support from commissioners and strategic health authorities, its clinical and/or financial performance is unable to be turned around.”

If the panel wants input into the trust administrators’ consultations it will need to amend its process to be flexible “so that it can adhere to the tight time-scales set out in the legislation”.

Mr Johnson’s comments - published by the DH - have been interpreted by some as a “slap down” for the panel.

Along with the NHS Confederation, Mr Johnson also urged the panel to ensure it valued co-operation as well as competition in its assessment of public and patient interest.

The confederation’s response says it fears the panel will “have an unbalanced approach to market regulation that promotes competition and only allows for co-operation as an off-setting benefit”.

HSJ understands the panel is unfazed by Mr Johnson’s remarks as it is likely to approach investigations of failing trusts differently on the basis that there would be no competition at all if a trust simply disappeared.