In April 2011 when many were still sanguine about the Health and Social Care Bill the SHA set out at length the dangers posed to the NHS. We said:

The Health and Social Care Bill is not about putting patients and clinicians in charge, reducing bureaucracy and ending top down micro management.  It is a blueprint for a different NHS, based on competition through a regulated market. The newly appointed Chair of the Regulator has said that NHS services will increasingly be opened up to competition, including on price, based on what occurred for the regulated utilities. The Health Minister has told us the intention is for a ‘genuine market’ with ‘genuine competition’ and that competition law (domestic and European) would play an increasing role within our NHS.

Throughout the protracted passage of the Bill assurances were given that we were wrong and that the purpose was to give clinicians as commissioners the powers to shape local services and they would be free to do this as they saw best. Time and again this version was challenged but after some alleged assurances from Ministers the LibDems caved in and allowed the Bill to become an Act.  In various ways the LibDems claimed the Act was now safe and the threat of competition fracturing our NHS had been removed – how naive they were.

Previously there was guidance for PCTs around use of competition in the Procurement Rules and Principles and Rules for Cooperation and Competition (as amended in July 2010).  This made clear that PCTs had options over procurement including to renew a contract with an existing provider without a procurement exercise, and this was applied to most of the services commissioned from the local hospital.  There was also the possibility for “NHS contracts” between PCTs and NHS Trusts (ie those not yet with foundation trust status) and these were not legally enforceable and so obviously outside the scope of competition.  Contracts with FTs were in theory legally enforceable but this had never happened nor had there ever been any  legal challenges.

The Act (Section 75) gave powers for Regulations to be made covering procurement, patient choice and competition and in October the DH consulted about S75. The DH suggested that in general they would follow the existing Procurement Rules and Principles and Rules for Cooperation and Competition but put that onto the required statutory basis consistent with the Act.

In February the DH published its response to the consultation and again said it would make very few changes, except to be more specific around preventing Conflicts of Interest.  The bombshell was when the actual Regulations were laid before parliament to come into force from 1 April 2013.

The proposals bear no relationship to assurances given or to the consultation and ensure that there must be full blown procurement for every service from now on, even under circumstances where this would have been unnecessary under current arrangements.

This is what we said would happen – it is the device to break up our NHS and convert it into a market system.

We also previously made the more general point that if the Government sets out that it wants a system with more competition, infers it favours competition, brings in the Competition Commission, effectively ends public provision of services, and sets up Foundation Trusts as if they were separate private businesses then the way EU Competition Law might be applied will be different.  And a pro-competition government will do less to deter possible challenges; might even encourage them. The whole approach (rather than just S75) does make it more likely that commissioners might be challenged in the Courts and if they fear challenge they may try to avoid it and might spend more on consultants, legal advice and fees.  This too was denied.

The risks to our NHS are great and we have set out elsewhere why we believe that alongside their other activities those who support our NHS should get involved in the new structures to try and slow down the rate the NHS is fragmented.  We must also hope the new GP Commissioners will see the dangers we warned them about and to respond appropriately.

Anyone who thinks the LibDems will help defeat the Regulations is dreaming. You can’t trust the Tories (or the LibDems) with our NHS

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