Government amendments to the Health Bill made during the committee stage have further “softened” rules aimed at encouraging competition, according to legal analysis for HSJ.
The government has made more than 100 amendments to the bill, including a change of language designed to rule out competition on price.
Capsticks partner Sharon Lamb said procurement regulations that would have created an obligation for the NHS Commissioning Board and consortia to promote competition had been altered to a negative obligation not to restrict or distort competition.
She said: “This is closer to the language in competition legislation but would represent a slight softening in approach.”
In addition, a power has been removed that would have allowed Monitor to force commissioners to put services out to tender where it had identified serious breaches of competition rules.
In the event of a breach, Monitor may also now accept undertakings from the commissioners rather than immediately declare arrangements ineffective.
HSJ understands Monitor fears further “softening” on competition could be made in the Lords, requiring it to take a more “collaborative” approach or giving it greater responsibilities over the quality of services, which could leave it open to judicial review.
As previously reported, other committee amendments have removed references to a “maximum” tariff and added a requirement that the tariff includes specific rules on the circumstances under which price may vary.
The tariff may also now bundle or group services together.
Greater clarity has also been inserted in the bill over who must be consulted about which services are “designated” and therefore subject to borrowing controls and restrictions over closures.
Where the designation of a service is disputed, Monitor will be asked to reconsider a verdict before the dispute is taken to a tribunal.