National Health Service (procurement, patient choice and competition) regulations 2013

The government was forced to amend draft regulations on competition and procurement in response to concerns raised in the House of Lords, but ultimately defeated an opposition effort to have the regulations struck down.

Section 75 of the Health and Social Care Act 2012 enabled the government to make regulations (known as the section 75 regulations), to require the NHS Commissioning Board and clinical commissioning groups to follow good practice in relation to the procurement of NHS health care services.

Under the 2012 Act, the draft National Health Service (procurement, patient choice and competition) Regulations 2013 could only be signed by Ministers following parliamentary approval and this gave Parliamentarians a further opportunity to press concerns about the role of competition in the NHS.

The Secretary of State Jeremy Hunt made the section 75 regulations on 11 February 2013.

Reaction

Andrew George, a Liberal Democrat member of the Commons Health Select Committee, was quoted in The Daily Telegraph as saying: 'The regulations clearly open most planning of healthcare to forced marketisation. I voted against the act last year because I could see where this could go. Now I've seen the regulations I now believe it's even worse than I had feared then. Ministers must withdraw and go back to the drawing board.'

On 7 March, the House of Lords Secondary Legislation Scrutiny Committee published its report on the National Health Service (procurement, patient choice and competition) regulations 2013. The committee concluded that the regulations would require commissioners to use competitive tendering for more services and that the regulations marked a significant change. The committee noted that there was widespread concern in the health sector about the role of increased competition in the health service and that the Department of Health would find it difficult to implement the regulations.

Amendments

Faced with widespread opposition, and the prospect of a Liberal Democrat revolt, the government agreed to amend the controversial National Health Service (procurement, patient choice and competition) regulations 2013 (the section 75 regulations).

The amended regulations were laid on 11 March and were intended to put beyond doubt the government's commitment that competition should be used in the interests of patients and that competition should not trump integration. The amendments made it clearer that there was no requirement to put all contracts out to competitive tender, Monitor would not have the power to force competitive tendering and commissioners should be free to use integration where it was in the interest of patients.

On 24 April, Lord Hunt of King's Heath (Labour) tabled a motion to annul the National Health Service (procurement, patient choice and competition) (No. 2) regulations 2013 (otherwise known as the section 75 regulations). The motion was defeated by 254 votes to 146. He argued that, even after the amendments to the original regulations, the current wording did not implement assurances made by ministers during the passage of the Health and Social Care Act 2012 that NHS commissioners should be free to commission services to meet the best interests of patients.

The Parliamentary Under-Secretary of State for Health, Earl Howe, emphasised that there was no agenda to privatise the NHS, that legislation around competitive tendering had not been changed and that it would be NHS commissioners who would decide how competition is introduced in their area.

Monitor's subsequent guidance

In December 2013, Monitor published substantive guidance on the procurement, choice and competition regulations in the NHS, which provided advice on using those regulations to secure services.

The guidance explained that the regulations were based around principles rather than prescriptive rules and that competition was not an end in itself. The guidance emphasised that choice and competition were just some of the levers available to commissioners to improve the quality and efficiency of care.