Monitor announced on its website on 5 June 2013 that it was launching an investigation into the conduct of purchasing decisions made by the North of England Specialised Commissioning Group whose functions were assumed by NHS England as of 1 April 2013. While all conduct prior to 1 April 2013 will be judged against the Principles and Rules for Co-operation and Competition, all actions subsequent to 1 April 2013 will be judged against the National Health Service (Procurement, Patient Choice and Competition) (No.2) Regulations 2013 (“Regulations”). This makes it the first investigation by Monitor under the powers granted to it by the Regulations.

The investigation is very much in the early, information gathering stages and Monitor is keen to stress that it has not yet reached a view as to whether there has been a breach of the rules. Very few details are given about the nature of the complaint, but the complainant is Thornbury Radiosurgery Centre, a provider of radiosurgery services such as Gamma Knife surgery. Gamma Knife surgery is a specialist treatment for tumors in the brain currently only offered at a very small number of sites in the UK. Thornbury Radiosurgery Centre is based at BMI Thornbury Hospital and is an NHS designated centre.

The timeline given by Monitor states that an update report is scheduled for August which should hopefully reveal more information about the nature of the complaint and the investigation process. As we reported in this blog on 29 May, Monitor is currently consulting on draft guidance to explain how it intends to use its wide-ranging powers to police NHS commissioning decisions under the Regulations. We expect a lot more complaints to be raised under these Regulations than the previous regime as any interested parties may complain directly to Monitor and, importantly, it costs nothing to raise a complaint. The draft Monitor guidance suggests that interested parties could include disappointed bidders, other commissioners, individual patients or patient groups.

The Regulations have created a lot of uncertainty in the NHS and, as with most changes in the law, we need to see how cases will dealt with in practice in order to determine the full impact of the changes. Therefore we will monitor (pardon the pun!) this investigation with interest.