The Department of Health will consult next month on rules setting out when regulator Monitor can intervene to prevent anti-competitive behaviour by clinical commissioning groups or the NHS Commissioning Board.
The proposed regulations will also broadly describe when and how commissioners can introduce competition for NHS services.
HSJ understands the rules are expected to adhere quite closely to the NHS’ existing principles and rules for cooperation and competition and its primary care trust procurement guide. CCGs would be able to extend or vary contracts with existing providers without putting them out to competitive tender, subject to safeguards intended to prevent anti-competitive behaviour.
Monitor is expected to be able to require commissioners to set aside contracts it concludes have been let inappropriately or illegally. However, it would not be able to determine how CCGs or the commissioning board should buy services or when they should introduce choice or competition.
Under section 75 of the 2012 Health Act, the health secretary can set regulations for CCGs and the commissioning board, requiring them to protect and promote patients’ rights to choice, and desist from anti-competitive behaviour. The regulations may impose requirements for competitive tendering for services and how commissioners are expected to manage conflicts of interest.
The DH last week published a document laying out its timetable for consultation on regulations, which will detail many government planned health reforms. It said the competition and choice regulations would set “the minimum requirements for commissioners in relation to procurement, choice and competition in order to ensure transparency and accountability”.
These rules would be “sector specific and enforceable by Monitor, rather than the courts”.