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Competition and procurement in the NHS: regulator to do more than just Monitor!

30 January 2014

Monitor, the new regulator of competition and procurement in public healthcare, has now published final versions of crucial guidance on how it will interpret and enforce competition and public procurement law and regulation within the sector. 

Knowledge of this guidance is of vital importance for commissioners and suppliers alike, since the way procurement and competition rules are read in an National Health Service (NHS) context will differ from their general application.

In 2012, the provision of services and supplies to the NHS came under fresh regulatory supervision in form of a new body called Monitor. 

This body, (replacing its forebear, The Co-operation and Competition Panel) is now charged with overseeing the commissioning and supervision of service provision and supply too NHS Trusts and other NHS bodies. 

Monitor was empowered by the Secretary of State under section 75 of the Health and Social Care Act 2012 to ensure commissioners (both at NHS Board level and in clinical commissioning groups (CCGs) follow good, efficient practice in procurement, avoid anti-competitive behaviour which adversely affects patents and promotes patient choice. 

It has issued guidance on its application of the NHS (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 (Regulations), which govern these areas.

Bearing Monitor's overriding statutory objectives in mind one can appreciate how, in an NHS context, the monitoring and enforcement of competition and procurement principles must be carried out through the nexus of ensuring patients have access to the best quality of treatment and care and appropriate choice when accessing treatments. 

This balancing act, of care against competition, is the fundamental exercise Monitor is charged with in carrying out its functions and is manifested in the following key aspects of the two central pieces of guidance it has published:

Enforcement guidance

This covers Monitor's investigation and enforcement powers, when and on what basis if should take formal or informal action and the cost-benefit analysis is must carry out when considering what action to take:

  • monitor's primary consideration will be what difference any proposed action can make for users of health-care services
  • it can decide whether or not action is appropriate based on its anticipated level of impact as against the resources required (and available) to pursue it
  • in relation to prioritisation, revised principles issued by Monitor state that whilst commissioning priorities will be taken into account in each case, so will any complaints about which services (and in what order of priority) are being reviewed pursuant to the relevant commissioner's current plans
  • commissioner will not necessarily be required to conduct a competition tender process or have such a process as the default procedure - a tender process may be appropriate in the circumstances but will not be required if it would divert resources and attention away from timely, effective provision of services to patients
  • if an aggrieved supplier seeks to challenge a commissioning decision, Monitor will count against it any knowledge that supplier had (or, importantly, ought to have had) that the decision may have been in breach of the Regulations
  • before commencing any investigation or enforcement measure Monitor will consider the likely time it will take to gather necessary information and balance this against the need for a speedy conclusion, particularly in light of any disruption that may be caused to on-going service provision or supply. Monitor has stated that it will take into account the time limits for complainants to bring 'fall-back' claims under the Public Contracts Regulations 2006 (as amended) and/or applications for judicial review when assessing the appropriateness of any proposed course of action.

Substantive guidance

This deals with how commissioners should comply with the procurement, record-keeping and  aspects of the Regulations, incorporating:

  • how to commission services in a transparent and non-discriminatory way
  • how to ensure actions and decisions in NHS procurements are proportionate
  • how to set and apply qualification criteria and justify non-selection decisions
  • how to identify and manage conflicts of interest between commissioners and those providing commissioned services; in the context of highly time-pressured and critical commissioning decisions, any doubts over the integrity of contract awards need to be spotted and dealt with quickly, so this will be an important area for Monitor to assess in practice and will have a key impact for potential suppliers.

As is clear from the key aspects of these two pieces of guidance, Monitor will have a balancing act to carry out when exercising its duties. 

It will need to decide whether the compliance issues from a public procurement and/or competition law perspective are of sufficient significance to warrant time and resource, and, moreover, whether in any event on-going patient needs override these considerations. 

A good demonstration of this nuance to the NHS field is in how Monitor will promote 'integrated pathway' service provision. Monitor is to consider more integrated models for structuring care, if it benefits patients. The Regulations, so says the guidance, should not be seen as requiring commissioners to increase the number of providers for competition's sake.

Of course, where supplier behaviour (such as market sharing in relation to certain medicines) is not only anti-competitive but also harms patients then Monitor will be compelled to take action. 

Or instance, GPs are not going to be asked to refer patients to rivals of an incumbent supplier if that supplier provides the best treatment option for that patient.

The fact that integrated services and established effective treatments are to be promoted alongside principles of competition will also impact on how NHS mergers will be reviewed.

This article was written by Rory Ashmore.

For more information please contact Rory on +44 (0)20 7427 1031 or rory.ashmore@crsblaw.com