The Health and Social Care Act 2012 enables the Secretary of State to pass regulations – ie, legislation – regarding the procurement of clinical services. Last week the DH published a consultation document on the proposed regulations: Securing best value for NHS patients. It provides for a significant change in the law.

Principles that had previously been enshrined in policy (Procurement Guide for Commissioners of NHS Funded Services and the Principles and Rules of Cooperation and Competition) will now be legally binding. Monitor will have new enforcement powers to investigate potential breaches of the regulations and ensure compliance.  

The implications of the new regulations are therefore far reaching and it is important that all organisations who will be commissioning clinical services or are accountable for their commissioning understand the issues and the practical implications. Providers will also be interested in the consultation. The regulations, once in force, will establish the parameters of how clinical services are commissioned.  

Securing best value for NHS patients is divided into five main sections:  

  • Ensuring good procurement practice
  • Protecting patient choice
  • Preventing anti-competitive behaviour
  • Managing conflicts of interest
  • Monitor’s powers

The document raises a number of issues. For instance, the proposals around ensuring good procurement practice are to be set out as a series of principles rather than prescribed actions that must be taken. But the principles will need to have sufficient clarity and not be so high level that they are open to interpretation.

Similarly, the proposal around preventing anti-competitive behaviour is to consider the effects of behaviour rather than set out what is prohibited behaviour. Arrangements that are restrictive but such restrictions are indispensable for delivering the intended benefits to service users will be permitted. However, there is a risk that the test of indispensable will be so narrow that few restrictions will be permitted even where they are in a patients’ interest. They may just not be indispensable as there are other, possibly much more costly ways, of achieving the same aim.

For more information see the briefing I have written with the NHS Confederation.  

The deadline for responding to the consultation is 26 October 2012.