- Regulator has consulted with “clinicians and NHS leaders” to draft list of requests
- Suggestions also include exempting the NHS “from wholesale inclusion in the public contract regulations”
The NHS is asking the government to rip up key parts of the Lansley Act on competition, the long-term plan has revealed.
The document said NHS England had consulted with “clinicians and NHS leaders” to present government with a “provisional list” of requests for changes to legislation.
- Freeing commissioners from procurement rules introduced in the 2012 Act;
- Removing the role of the Competition and Markets Authority in NHS merger and acquisitions;
- Introducing legal “shared duties” for clinical commissioning groups and NHS providers on outcomes and finance; and
- Making integrated care systems more meaningful by freeing foundation trusts to create joint committees, allowing “the creation of a joint commissioner/provider committee in every integrated care system”.
- Make it easier for NHS England and NHS Improvement to work more closely together.
The document said the changes it outlined could “generally be achieved within the current statutory framework, but legislative change would support more rapid progress”.
The competition rules introduced by the Lansley Act have been highly contentious, despite being enforced inconsistently.
The document said: “We propose to free up NHS commissioners to decide the circumstances in which they should use procurement, subject to a ‘best value’ test to secure the best outcomes for patients and the taxpayer. The current rules lead to wasted procurement costs and fragmented provision, particularly across the GP/urgent care/community health service workforce.”
As well as the rules in the 2012 Act, the document suggested exempting the NHS “from wholesale inclusion in the Public Contract Regulations”.
“We would instead set out our own statutory guidance for the NHS to follow,” the document continued. “At the same time, we propose to protect and strengthen patient choice and control, including through our wider programme to deliver personalised care.”
The specific role of the CMA, also introduced by Lord Lansley, on NHS mergers would also be scrapped, under the proposals. But the document stressed this “would not affect the CMA’s critical investigations work in tackling abuses and anti-competitive behaviour in health-related markets such as the supply of drugs to the NHS”.
It added: “We propose similarly dispensing with Monitor’s 2012 Act competition roles, so that it could focus fully on NHS provider development and oversight.”
Monitor’s powers were meant to protect patients from anti-competitive actions by providers, and in practice saw challenges brought by independent sector providers against NHS commissioners.
The other main strand of the NHS’s legislative requests is around levers to make ICS more meaningful.
While stopping short of putting them on a statutory footing, top of the list is a law that would give CCGs and NHS providers “shared new duties” on outcomes and finances.
It said: “These new reciprocal duties would also contribute to supporting our wider goal of securing a stronger chain of accountability for managing public money within and between local NHS organisations.”
Other measures would include removing some restrictions on how CCGs can work with NHS England and others that would allow foundation trusts to create joint committees with other bodies.
On NHSE and I, the document says: ”We propose that as a minimum, NHS England and NHS Improvement should be free to establish a joint committee and subcommittees to exercise their functions, with corresponding streamlining of non-executive and executive functions.” This appears to leave scope for sharing a chair and chief executive (something which is currently not possible), and potentially merger - although the latter is still thought to be unlikely.
NHS long-term plan
7 January 2019
NHS long-term plan: Full coverage
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Government asked to rip up Lansley competition rules