Changes in procurement and patient choice

The Bill sets out that the NHS (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 (“NHS Procurement Regulations”) that apply to NHS England and Improvement (“NHSEI”) and Clinical Commissioning Groups (“CCGs”) will be repealed.

We can expect further regulations governing the procurement of healthcare services, based on the consultation paper on the new Provider Selection Regime. It is likely that the new regulations will clarify how decision makers can procure a mix of health and social care services (the consultation paper on the Provider Selection Regime specifically excluded social care services) and no doubt this clarity will be welcomed. It is not clear at the moment when those draft regulations may be issued.

Healthcare services will no longer be in scope of the Public Contracts Regulations (PCR) 2015 (meaning they will not be in scope of the Procurement Bill that we are expecting in the autumn). The procurement of non-clinical services and clinical consumables and supplies, for example, would still be governed by the PCR and any new procurement legislation.  NHS procurement professionals will need to be familiar with both procurement regimes.

The existing requirements for patient choice should be preserved under new rules to be enforced by NHS England.  NHS England will also produce guidance on patient choice.

Comment: For now, NHSEI and CCGs are still required to comply with the NHS Procurement Regulations and the PCR when procuring health services.  Given that CCGs will cease to exist once the Bill becomes Law, CCGs should make it clear in any current procurement processes that a successor body will enter into the contract with the successful provider.

Competition

Since the publication of the NHS Long Term Plan, there has been a move towards greater collaboration.  The role of Monitor’s competition duties and the Competition and Market Authority’s oversight of NHS foundation trust mergers were often cited as a barrier to collaboration. The Bill therefore proposes to:

• remove Monitor’s competition duties and Monitor’s ability to refer contested licence conditions and tariff prices to the CMA. In consultation with local leaders, NHS England will be able to decide on how to operate the licencing regime and the NHS Payment Scheme.
• remove the CMA’s ability to review NHS foundation trust mergers. NHS England will review mergers between NHS providers to ensure they are in the best interests of patients and the taxpayer. The CMA will continue to have functions in relation to regulating competition within the private healthcare market.

Comment: We know NHS providers are currently deciding how they will  work collaboratively within their Integrated Care Systems, and these proposed changes should give them reassurance that the law won’t prevent their collaboration.

For more information on how the above changes will affect your organisation, please contact Mary Mundy.

Other highlights from the Health and Care Bill

We have prepared a series of “bite sized” updates on those aspects of the Bill that are likely to have most practical impact on your day-to-day work.

What does the Health and Care Bill mean for...

• service reconfiguration?
• information governance and data sharing?
• employers and workforces?
• CQC regulation?
• the establishment and governance of Integrated Care Systems?