The chief executive of healthcare sector regulator Monitor has rejected claims that controversial new competition regulations could lead to a sharp increase in competitive tendering for NHS services.
David Bennett, in an exclusive interview with HSJ, said the watchdog would be “mad” to enforce those rules in a way that left commissioners “spending all their time running competitive processes because they’re terrified they’re going to get in trouble if they don’t”.
In the wide-ranging interview, Mr Bennett and Monitor director of competition and cooperation Catherine Davies gave their most detailed account to date of how they intend to police the now infamous “section 75 regulations”, which set the legal framework for competition under the government’s NHS reforms.
Mr Bennett said: “Fortunately for the patients of England, we have a duty to do whatever we do with a focus on what’s in their best interests. We would be mad to enforce those rules in a way that leaves commissioners spending all their time running competitive processes because they’re terrified they’re going to get into trouble if they don’t.
“If we cause them to go through something that is unnecessary, [that] isn’t helping to improve the care delivered [for] patients, then we’re clearly not doing our job properly.”
He rejected the suggestion that the regulations, if left unchanged, would lead to a sharp increase in competitive tendering for NHS services. “I think it’s unlikely you will see any discontinuity [in commissioner behaviour] as a result of this,” he told HSJ.
Ms Davies − formerly director at the NHS Co-operation and Competition Panel, which has effectively become the competition arm of Monitor under the government’s reforms − said the regulations went no further than putting previous competition and procurement rules on a statutory footing.
Mr Bennett noted that there were 211 clinical commissioning groups, each with an estimated 60 to 600 contracts, while Monitor would have only around 40 employees investigating competition issues. “There’s an awful lot of contracts out there, we’ve got a very limited resource,” he said.
“We’re going to have to prioritise and we’re going to be extremely clear about how we will prioritise what we do. We will be focusing on areas where we think opportunities to improve the service delivered to patients have been missed in a serious way.”
He added that “enormous numbers” of primary care trusts had rolled over contracts, the panel had not been “running around the country demanding that that stops”, and “the rules aren’t changing, the CCP isn’t changing”.
Mr Bennett and Ms Davies’ intervention comes amid a continuing political furore about the regulations, and calls for Monitor to clarify its interpretation of what commissioners must do to comply with them.
A report published by the Lords’ secondary legislation scrutiny committee last month complained that the proposed rules could not be considered alongside Monitor’s own guidance on them, which has not yet been published. The committee warned there was still widespread uncertainty in the NHS about whether commissioners would still be able to renew existing contracts without competition, which it said was likely to “result in commissioners conducting unnecessary tendering processes simply to ensure that their decision will be ‘safe’ under the law”.
However, Mr Bennett defended the decision not to publish Monitor’s guidance until the political row over the regulations was settled, saying the Department of Health had “tried to clarify a number of the issues raised by the lords, because in a sense [that is] their job while it’s going through Parliament”.
How Monitor will assess competition
David Bennett and Catherine Davies told HSJ competition regulation would be largely “complaints driven”, and its assessment of complaints would hinge on whether the commissioner had acted in a reasonable way. They suggested this would begin by looking at the commissioning plan the clinical commissioning group had developed with its local health and wellbeing board.
The regulator would expect commissioners, in their planning, to pay particular attention to areas where their current provider was not delivering a good service. In those cases, said Mr Bennett, “You’d expect them to at least think about ‘how could I get a better service?’ Is it through trying to negotiate a better arrangement with my existing provider, including better performance management of what they’re providing…? Or is there a reasonable chance of finding an alternative provider who is a better provider?”
Ms Davies said Monitor’s steps would be to ask, “have they gone through a process?”; “have they established a commissioning plan that sets out what they want to do?”; and is the conclusion they’ve reached “a reasonable conclusion given the steps they’ve followed?”
Asked for an example of an unreasonable conclusion, Mr Bennett suggested: “This is a terrible service our patients are getting, it’s obvious by inspection there are neighbouring providers that are providing a better service, but we aren’t going to do anything about it.”
However, Ms Davies indicated Monitor would not be producing a precise set of steps commissioners could follow to ensure they were not subject to challenge. “I don’t think it would be appropriate for us to be prescriptive, and basically say, ‘This is exactly what we expect you to be doing, we need you to go through a list and tick off all these things that you’re supposed to do, and as long as you’ve done that you’ll be fine’. Because actually what we’re saying is that we want to understand whether what you’ve done is reasonable, and that means there’s flexibility to do things in different ways.”
Mr Bennett also indicated that in some cases it might be reasonable for commissioners not to run a competitive process for a service, because they did not feel they were able to accurately measure the quality of their existing provider.
“It’s fair to say that the quality metrics in community and mental healthcare are poorer than they are in acute services,” he told HSJ. “So if a commissioner says my focus in the next year is on getting a much better grip on the quality of care my patients are being provided by the current provider, we would say that sounds like quite a sensible thing to do.” However, he warned that commissioners should not use this as “an excuse for doing nothing year after year”.