Monitor will consider complaints about anti-competitive commissioning from individual patients and representative groups, under new guidance.
The regulator today published its much-anticipated draft guidance on how it will enforce the government’s procurement, patient choice and competition regulations.
Monitor’s guidance on “case initiation” says: “We will consider on a case-by-case basis whether a complainant has a sufficient interest [for Monitor to open an investigation].
“The following complainants may have a sufficient interest (among others): providers, other commissioners, users of health care services (including individual patients) and patient groups.”
Monitor can also decide to investigate a breach of competition rules – which have become known as the section 75 regulations –on its own initiative.
The enforcement process could see the regulator issue a direction to commissioners or make “a declaration of ineffectiveness”, overturning their decisions.
Alternatively to this enforcement action a commissioner, once a formal investigation is launched, can offer an “undertaking”, in which it makes commitments to redress its actions before Monitor makes a judgment.
The rules will apply to all commissioners, although they are thought to affect clinical commissioning groups more often than NHS England, which commissions specialist and primary care services.
The draft regulations re-iterate what was in the section 75 rules passed into law earlier this year, that commissioners must not discriminate against a provider based on its ownership and that commissioners cannot engage in anti-competitive behaviour unless it is in the interests of patients.
Monitor said it would carry out a cost-benefit analysis to assess this.
In doing this, the guidance said the regulator would “consider whether the behaviour affects competition in a way that removes or materially reduces the incentives on providers to provide high quality services, provide value for money and/or improve services.
“In carrying out this assessment Monitor… may consider GP referral patterns, the geographic proximity of the providers and any evidence of patients switching between different providers in the past.”
The regulator also issued guidance on the kind of issues it might consider a conflict of interest for commissioners.
These include direct and indirect financial interest, such as through a spouse, and “non-financial or personal interests, for example a member of a CCG or NHS England whose reputation or standing as a practitioner may be affected by a decision to award a contract for the provision of services”.
Another example given is “a member of a CCG who has an interest in the award of a contract for the provision of services because of the interests of a particular patient at that member’s practice”.
A consultation on Monitor’s new enforcement procedures will run for two months.
Monitor chief executive David Bennett said in a statement: “The regulations do not force commissioners to go out to tender for every service, but equally commissioners should not simply roll-over existing contracts without first asking how good the service is, and whether it could be improved to give patients a better deal.
“If so, the next steps might be evaluating alternative providers, if there are any, and if not negotiating a better arrangement with the existing provider. These are matters for commissioners to consider in exercising their duties. As a sector regulator, Monitor will be able investigate any complaints about procurement decisions in England as an alternative to bringing cases before the courts.”