The Department of Health has amended key sections of controversial secondary legislation covering the contracting out of NHS services.
The original ‘section 75’ regulations, released last month, had prompted accusations that the government had reneged on its commitment to let commissioners decide whether or not services should be tendered.
The controversy saw Liberal Democrats threaten rebellion and Labour submit a “fatal” motion in the House of Lords. Liberal Democrat health minister Norman Lamb last week said the rules would be amended.
The amended regulations – published this afternoon – show that the government has removed a clause that had been a focus of much of the criticism.
Section 5 of the original draft said commissioners could award contracts without competition when they were “satisfied” there was only one provider capable of providing the services, but that this could only be the case for “technical reasons” or “reasons of extreme urgency”. Lawyers had told HSJ the narrowness of the exemptions would make it difficult not to tender significant amounts of NHS work.
The clause restricting when a service can be defined as “capable of being provided by a single provider” has been deleted from the new draft.
In another change, the amended regulations specify that healthcare sector regulator Monitor cannot order a clinical commissioning group to run a competitive tender for a contract.
The regulations still say commissioners “must not engage in anti-competitive behaviour”. However, where previously they prohibited anti-competitive behaviour which was “not necessary for the attainment of intended outcomes which are beneficial for people who use such services”, they now prohibit anti-competitive behaviour unless it “is in the interests of people who use health care services for the purposes of the NHS”.
These interests could be served by “services being provided in an integrated way (including with other health care services, health-related services, or social care services); or by co-operation between the persons who provide the services in order to improve the quality of the services,” the amended regulations state.
David Worskett, chief executive of the NHS Partners Network which represents independent sector providers, told HSJ “some would see it as a victory” although “in the real world” the amendments just make clearer what the government said all along.
“I am sure some doctors will try and adopt a preferred provider policy and some will want to tender and we will see what happens. The regulator will have rather more teeth than they did.”
“But in law the government has made it much, much clearer that it is the status quo that is being enacted.”
Health Minister Lord Howe, who led the Health Act 2012’s progress through the House of Lords, said the amendments had put the government’s intentions on integration and competition “beyond doubt.”
He said: “We have taken concerns about the regulations very seriously and want to put beyond doubt their intended purpose. We have acted quickly to address the issues and lay revised regulations.
“It has never been and is absolutely not the Government’s intention to make all NHS services subject to competitive tendering or to force competition for services. That would compromise the power and freedom we are giving to local doctors and nurses.
“I believe we now have a set of regulations which puts this beyond doubt.”
The British Medical Association welcomed the redrafting of the rules but chair of BMA Council Mark Porter said he still had misgivings about the “direction of travel for the NHS”.
“The redrafted regulations, if supported by clear guidance, should provide greater clarity on the commissioning process,” Dr Porter said.
“However, we remain concerned about the overall direction of travel for the NHS. It is vital that competition is not allowed to undermine integration, innovation, or clinical autonomy. There still needs to be a full parliamentary debate, to provide absolute clarity that CCGs will have the freedom to decide how best to secure high quality services for local populations.”