The providers involved in the first merger between two foundation trusts have signed up to undertakings restricting how they can communicate with each other.

As reported by HSJ last month, the Competition Commission has asked Royal Bournemouth and Christchurch Hospitals and Poole Hospital foundation trusts to sign undertakings committing to have an independent observer present at all meetings between them while the commission reviews the proposals.

The review is examining whether the merger would lead to a substantial lessening of competition and if so if there are benefits to patients that would outweigh those concerns. It is the first merger between NHS organisations the commission has considered.

It has asked the trusts to sign “hold-separate” undertakings to ensure they do not take irreversible actions to integrate the two organisations before their review is complete in June.

HSJ understands the trusts have won a concession to the original proposed undertakings exempting meetings of joint shadow clinical and non-clinical directorates, provided any decisions made are not implemented without agreement from a joint programme board, or another meeting where the observer is present.

Lead clinicians must sign up to these terms and could face a fine or imprisonment if they break them.

The trusts have also inserted a clause which allows then to take urgent action in the “best interests of patients” without the consent of the commission where it is not “reasonably practicable” to inform them in advance.

The draft undertakings were published ahead of last week’s meeting of the Royal Bournemouth board.

The ban on discussions without the presence of an independent observer is wide ranging including conversations about sharing staff, joint recruitment, and joint bids or tenders to provide services.

Committees which the independent observer must attend include the joint programme board, merger finance group, joint governors reference group, and the joint governors workshop. The observer must ensure that no action is being taken which could be difficult to reverse if the commission rules against the merger.

The draft document, which was expected to be confirmed, confirms the undertakings do not require the trusts to reverse any steps already taken towards merger but the commission will “keep this matter under review”.

A report to the Bournemouth trusts’ board reveals the commission’s requirements have already led to a delay of at least a month due to a requirement to cease work while the undertakings are finalised. This means submission of detailed merger proposals to Monitor, due to take place by the end of May, will not now happen until the end of June or early July.

The report said: “The trust board met on Thursday 28 February and agreed to accept the undertakings driven by a wish to ensure that the benefits of merger are realised as soon as possible and that there is minimum further delay in doing this.”

Minutes from the previous meeting reveal a concern from the board about how the commission is handling the merger process.

Two non-executives, David Bennett and Brian Ford, called for the issue to be raised at the “highest levels in government”.

Mr Bennett is reported as warning that applying competition rules to the NHS “may lead to a counter-intuitive outcome”.