Revised NHS regulations try to clarify procurement rules

A revised version of the new regulations for the National Health Service (NHS) were published recently. You may remember the fuss when the first version was issued (see here).

Are these any better? Certainly some commentators don't think so. In the Guardian, Colin Leys wrote last week about how lawyers will be the main beneficiaries of the new system. He commented on the confusion inherent in the new Regulations. For instance, commissioners can only award a contract “without advertising an intention to seek offers from providers in relation to that contract where the relevant body is satisfied that the services to which the contract relates are capable of being provided only by that provider”.

So you have to be sure no-one else might be capable of and interested in doing the work if you want to award without advertising and potential y competition. But it is of course very difficult to know that without advertising! The only way round it I can think of is to define a service that is so esoteric and / or specific that only the current NHS provider fits the bill. (“You must have a hospital with at least 300 beds and a gift shop run by the friends of Frimley Park...”)! But one suspects that might be open to challenge.

Another aspect of this is the potential for conflict of interest, which I've felt from the very beginning of the reform discussions was going to become a major problem.  We're hearing more stories already of doctors who are members of "Clinical Commissioning Groups" but also hold financial interests in organisations that may be awarded contracts. The new Regulations say:

A relevant body must not award a contract for the provision of health care services for the purposes of the NHS where conflicts, or potential conflicts, between the interests involved in commissioning such services and the interests involved in providing them affect, or appear to affect, the integrity of the award of that contract.

The talk is of those people with conflicts excusing themselves from the appropriate discussions, but my personal view is that will just lead to problems and accusations of cronyism and favouritism (you support my firm when I'm out of the room and I'll support yours...). Surely there must be clearer separation of purchaser (commissioner) and provider?

But what still seems clear – as much as anything is clear – is that there is going to be a lot more opportunity for private sector providers to at the very least bid for NHS work. Whether that is a good thing or not, I guess we won’t know for some years to come.

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