Monitor recently launched a public consultation on its proposed guidance in relation to the controversial NHS (Procurement, Patient Choice and Competition) (No.2) Regulations 2013 ("Regulations"). The recently introduced Regulations aim to ensure good practice in the procuring of health care services by those responsible for commissioning NHS health services (ie, clinical commissioning groups and NHS England - the adopted name of the NHS Commissioning Board). The Regulations are also intended to protect patient choice and to prevent anti-competitive behaviour except where it is in the interests of NHS patients.
Monitor will be dealing with complaints brought under the Regulations and has a number of new enforcement powers. This new regime builds on an area previously overseen by the Cooperation and Competition Panel and provides an alternative to using the courts in order to challenge decisions relating to the commissioning of NHS healthcare.
Monitor intends to publish two sets of guidance, one dealing with compliance by commissioners and the other on how it will exercise its enforcement powers. The compliance guidance, although directed at those who commission, will enable providers to identify what commissioners ought to be doing. Of particular interest to providers is the guidance on when a contract for healthcare services should be put out to tender. This will no doubt prove useful when deciding whether or not a complaint to Monitor is justified. It should be noted that the consultation is in relation to the guidance and not to the Regulations themselves, as the latter are already in force.
Another useful feature related to the compliance guidance consultation is a set of six "hypothetical case scenarios" that illustrate whether or not certain conduct by commissioners complies with the Regulations. Obviously, the envisaged scenarios are not "precedents" in the same way that case law is but Monitor states that as its experience increases, it may amend these scenarios accordingly.
The consultation for the enforcement guidance differs from the compliance guidance consultation in that the responses sought may impact on the enforcement regime. For example, in one section the consultation asks for suggestions as to "other types of informal action we could take". Therefore, if your organisation regularly bids for NHS work, this is an opportunity to have a say, based on your experience, about enforcement for non-compliance with the Regulations.
Both consultations close on 15 July 2013 and can be accessed, along with the case studies, via the following web link: