The changes to Monitor’s role brought about by amendments to the Health Bill may not be “substantive”, lawyers have warned.
The regulator’s role has been one of the most controversial elements of the proposed reforms, and the government has said it will be changed.
Government amendments tabled yesterday would change its “main duty”.
This had been to “protect and promote” patients’ interests, “(a) by promoting competition where appropriate, and (b) through regulation where necessary”.
Under the amendments it would be to do the job “by promoting provision of health care services which - (a) is economic, efficient and effective, and (b) maintains or improves the quality of the services”.
However Bevan Brittan LLP Partner David Owens said: “I’m not sure they have made much in the way of substantive change.
“They have changed the emphasis – but Monitor is still going to have concurrent powers under the Competition Act with the Office of Fair Trading. That implies the expectation is competition law is going to apply to providers.”
The amendments also say Monitor “must exercise its functions with a view to preventing anti-competitive behaviour in the provision of health care services for the purposes of the NHS which is against the interests of people who use such services”.
Mr Owens said the bill was “casting [Monitor’s role] in the negative but - as opposed to promoting competition – but, depending on how Monitor chooses to exercise it, that might not make much difference “.
There are some clearly material changes to Monitor’s role, however, such as banning Monitor from ordering one provider to give another access to its assets – for example to operate on its premises.
The amendments would add other elements to Monitor’s role.
It must work “with a view to enabling health care services… to be provided in an integrated way”, and “to be integrated with the provision of health-related services or social care services”.
The amendments give similar roles, including encouraging integrated health and social care commissioning, to the NHS Commissioning Board and clinical commissioning groups.
However, Mr Owens said the effect of many of these clauses was unclear. He said: “[Are they] going to be notional duties – like the current duty to cooperate between health and local authorities? People sometimes pay attention to them but very often they don’t.”
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Health Bill: competition changes may not be ‘substantive’