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Select committee backs plans to reduce burdens of competition rules on NHS

Collaboration, rather than competition, is the best way forward for the NHS and the wider health and care system, MPs on the Health and Social Care Committee have said.

They particularly welcomed plans to repeal section 75 of the Health and Social Care Act 2012 and revoke the regulations made under it, which they said would lessen the role of competition in health provision.

But a QC who appeared before the committee has warned that this change is likely to have little impact on its own.

MPs also urged that holders of integrated care provision (ICP) contracts should be statutory providers and that local authorities must be part of the decision-making process on integrated care systems.

Committee chair, the independent MP Sarah Wollaston, said the report NHS Long-Term Plan: legislative proposals “broadly welcomed” the Government’s proposals.

She said: “This report also represents cross-party endorsement of suggested changes, and presents an opportunity to make integration easier, to encourage greater collaboration and reduce some of the burdens from competition rules.”

Dr Wollaston said the committee thought the proposals were though too NHS-centric, adding: “We would like to see greater consideration of the wider system which the NHS seeks to integrate.

“It is clear that there is no appetite for another large-scale, top-down reorganisation of the NHS and within the current hung Parliament any such major change would not pass the House of Commons.”

She added: “Local health providers continue to work to collaborate and integrate care around patients, in spite of current legislative obstacles and these proposed reforms are designed to remove some of the barriers that can get in the way.”

The committee called for a collaborative approach as “competition rules add costs and complexities, without corresponding benefits for patients and taxpayers in return.

“Choice and competition can help raise standards and encourage innovation, but, as an organising principle, collaboration is a better way to manage the rising demands on health and social care, improve joined up care for patients and deliver better value for taxpayers.”

MPs said the law should prevent non-statutory providers holding integrated care provider contracts, a step that “would allay fears that ICP contracts provide a vehicle for extending the scope of privatisation in the English NHS.”

ICPs would be free to subcontract with other partners, which the report called “a sensible balance by enabling ICP contract holders to draw on the diverse mix of health and care provision that exists across the country, while ensuring the responsibility entailed in these long-term contracts rests with public statutory bodies”.

MPs supported the idea that the Secretary of State should have powers to create new NHS trusts, “but this power must not be used by the department or national bodies to impose a form of integration on local health and care services or as threat to force organisations to collaborate”.

This was because doing so “would involve far wider legislative changes and there is no appetite for another major reorganisation of the NHS”.

The report said local authorities must be part of the decision-making process so integrated care systems could “be truly place-based and focused on population health” and called for additional proposals that enable local authorities to participate as equal partners in joint committees with clinical commissioning groups and NHS providers.

On NHS procurement the committee supported the idea that commissioners can exercise discretion over when to conduct a procurement process.

“The practice of procurement in parts of the NHS, particularly community and mental health services, has added complexities and costs to the system, with little added value for patients in return, and made it harder for services to integrate,” MPs said.

David Lock QC of Landmark Chambers, who gave evidence to the committee, said: “Whilst the repeal of section 75 and the associated regulations may well be a welcome first step in disentangling the NHS market from EU procurement and competition law, a far more comprehensive approach is likely to be needed in order to provide proper protection for NHS bodies from future procurement challenges. 

“As long as the NHS is set up as a mixed market with a combination of public bodies, voluntary organisations and private companies providing services to NHS patients, the EU Procurement Directive and the Public Contracts Regulations 2015 will continue to apply to all NHS contracting decisions.

“Repealing the NHS procurement regulations will not affect the continuing application of [these] and thus will not avoid EU procurement laws impacting on the NHS. 

“Thus, of itself, it is likely to deliver little practical benefit to NHS commissioners.”

Mark Smulian

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