The National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 (the Procurement, Patient Choice and Competition Regulations), which were made pursuant to sections 75, 76, 77 and 304(9) and (10) of the Health and Social Care Act 2012 (the Act), contain a number of requirements that commissioners must comply with to ensure that they:
- adhere to good practice in relation to the procurement of health care services funded by the NHS;
- protect the rights of patients to make choices with respect to treatment or other health care services funded by the NHS; and
- do not engage in anti-competitive behaviour unless this is in the interests of NHS health care service users.
The Procurement, Patient Choice and Competition Regulations are intended to give commissioners flexibility. They adopt a principles-based approach and do not generally include prescriptive rules on how commissioners must carry out their procurement activities. It is ultimately for commissioners to decide what services to procure and how best to secure them in the interests of health care service users. Neither the regulations nor this guidance set out a preferred approach. Monitor’s role is limited to ensuring that commissioners have operated within the legal framework established by the Procurement, Patient Choice and Competition Regulations.
Since 2007, the Department of Health has required commissioners to comply with the administrative rules set out in the Principles and Rules for Cooperation and Competition. These required commissioners to commission services from the providers best placed to secure the needs of patients, to act in a transparent and non-discriminatory way when commissioning services and to protect patients’ rights of choice. They also prohibited commissioners from engaging in anti-competitive behaviour.
Since 2008, commissioners have also been required to comply with the Procurement Guide for Commissioners of NHS Funded Services (the Procurement Guide),3 which included more detailed requirements to ensure best practice in procurement. For example, the Procurement Guide required commissioners to demonstrate the rationale for decisions on whether or not to competitively tender services. In particular, where commissioners decided to procure services through a single tender action, the rationale had to demonstrate that there was only one capable provider to deliver the services in question.
The Procurement, Patient Choice and Competition Regulations replace these administrative rules. They preserve the substance of many of the rules and provide Monitor with associated enforcement powers to ensure that we are able to investigate potential breaches of the Regulations and ensure compliance as part of our new role as a sector regulator.
This is a consultation on the guidance that we intend to publish about how to comply with the Procurement, Patient Choice and Competition Regulations and with certain requirements relating to patient choice in the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (the Responsibilities and Standing Rules Regulations) which Monitor has the power to enforce under the Procurement, Patient Choice and Competition Regulations. It also fulfils Monitor’s duty to publish guidance under section 78(1)(a) of the Act.
The guidance:
- describes the requirements in the Procurement, Patient Choice and Competition Regulations and the relevant requirements relating to patient choice in the Responsibilities and Standing Rules Regulations;
- sets out the factors that Monitor will take into account in considering whether conduct is consistent with the Procurement, Patient Choice and Competition Regulations and the relevant requirements in the Responsibilities and Standing Rules Regulations;
- describes the analytical framework that Monitor intends to apply when assessing particular types of conduct; and
- provides examples of conduct that might breach the Procurement, Patient Choice and Competition Regulations and the relevant requirements of the Responsibilities and Standing Rules Regulations.
