STRUCTURE: Lawyers have written to NHS Gloucestershire accusing the organisation of having “set its face against” trying to keep its provider arm within the NHS.

NHS Gloucestershire agreed to reconsider its plans to transfer the community services to a social enterprise following a legal challenge by Stroud resident and service user Michael Lloyd earlier this year. An out of court settlement reached on the second day of a judicial review committed the primary care trust to looking again at NHS options after advertising for expressions of interest.

The PCT has since informed staff it plans to put the services out to tender and NHS organisations will be welcome to submit bids.

However, solicitors Leigh Day & Co, who represented Mr Lloyd, have written to chief executive Jan Stubbings to say the PCT’s management has misunderstood the legal position and they are under no obligation to run a tender process.

In the high court, counsel for Mr Lloyd argued that contracts between non-foundation trust NHS organisations were not subject to European Union competition law and could be entered into without a formal procurement process.

The letter invites the PCT to consider the “far reaching implications” for the NHS of continuing to rule out entering into agreement without going out to tender, suggesting that if NHS Gloucestershire’s legal position is correct it would mean all the PCTs who had transferred their provider arms to NHS organisations under the transforming community services programme would have acted unlawfully.

The letter adds: “It seems to us far more likely to be the case that the error is yours… It now appears to be clear that the PCT has set its face against the option to enter into an arrangement with an NHS trust.”

The firm has given the PCT seven days to accept that one of the options open to them is entering into an arrangement with another NHS trust without a tendering process and commit to including it within its staff and public engagement process.

In a statment PCT chief executive Jan Stubbings said: “We can confirm that we have received the letter and will be responding in due course. We are legally obliged to advertise for expressions of interest for the future provision of PCT community services and we are working towards this”.