In our January edition of the Health legal update, we reported that the Co-operation and Competition Panel (CCP) had launched a study into the operation of the “any willing provider” (AWP) model, in relation to free choice of provider for routine elective care. The study is investigating whether the AWP model is being used in a way which is consistent with the requirements of national choice policy and the Principles and Rules of Co-operation and Competition (PRCC).

The CCP has now published its interim report, which highlights a number of concerns in this area and outlines the next steps for the investigation.

The interim report highlights two main issues. The first concerns problems with the transfer of Extended Choice Network (ECN) and Free Choice Network (FCN) contracts with independent sector providers, which are currently national contracts, to local PCT based contracts. The panel has identified varying approaches by PCTs, which may be detrimental to patient choice. In addition, evidence has suggested that very few PCT based contracts will be in place by the deadline of 1 April 2011, which could substantially reduce patient choice.

As a result, the panel has recommended that existing ECN and FCN arrangements should be temporarily extended.

The second issue identified relates to PCT actions which may be restricting patient choice for routine elective services. Examples include things like triage and referral management systems which direct patients to particular providers, contractual provisions limiting the types of procedures that providers may offer and activity caps. The panel are also concerned about incentives for PCTs to limit patient choice, for example through different pricing for different providers or block contracts.

The panel has highlighted that the actions of around 70 PCTs have been identified as potentially inconsistent with the PRCC at this stage.

The next phase of the study will look at the evidence in more detail and carry out a cost/benefit analysis, to identify whether any detrimental effects of this conduct are outweighed by its benefits. This is an interesting issue, as the interim report states that PCTs and SHAs have emphasised the financial pressure on PCTs and the need to control expenditure as key issues. This calls into question whether the cost savings which can be achieved through limiting choice could outweigh the disadvantages of reduced choice.

The CCP has asked for further submissions and evidence by 25 March 2011 and is particularly interested in hearing from PCTs. The final report is due in June 2011.