Streamlining procurement is not a pretext to exclude non-NHS providers

One of the more unusual aspects of the long-term plan has been the production of “legislative asks” by the NHS to enable the delivery of a model of care quite different from that envisioned by the 2012 Health and Social Care Act.

In more normal political times legislation tends to reflect the preferences of the government of the day rather than service leaders. But it makes a lot of sense for government to ask the NHS what can be done in legislative terms to help deliver the shared vision of more integrated care.

Legislative asks

Many of the legislative asks are welcome, including removing impediments to place based commissioning and the creation of NHS integrated care trusts. And nobody (including independent sector providers) wants to see the NHS go through onerous procurement exercises that add no value. So, we like others, are open to the idea of streamlining procurement rules.

But the proposal to “free up NHS commissioners to decide the circumstances in which they should use procurement” has already led to speculation that this would mean a move away from a level playing field, a reduction in non-NHS provision, and a shift back to an “NHS first” model. This would be wrong.

Streamlining procurement must not be used as a pretext to exclude non-NHS providers from service delivery. Procurement, however it is done, must be about identifying and securing the best possible services for patients, whether from NHS, independent sector, voluntary, or social enterprise providers. Failing that test means failing patients.

It makes a lot of sense for government to ask the NHS what can be done in legislative terms to help deliver the shared vision of more integrated care

One of the potential consequences of “freeing” the NHS from the Public Contract Regulations is that the requirement for commissioners to act impartially is replaced by new guidance that allows the presumption that NHS providers will always offer “best value”.

And ultimately what this means is that patients will no longer have access to the range of innovative services that non-NHS providers bring, in everything from infant feeding support to community physiotherapy, diagnostic imaging, and advanced cancer therapies. And in the worst cases it means that patients will be stuck with NHS provision that just doesn’t meet their needs.

And changes to procurement rules could also have big consequences for integration. The long-term plan rightly says that emerging Integrated Care Systems will have “a key role in working with local authorities at “place” level”. Of course, the Public Contract Regulations apply equally to NHS commissioners and local authorities.

Bespoke regime

There is a risk that establishing a bespoke NHS procurement regime undermines efforts to jointly commission services between the NHS and local government by removing the common framework that both operate within. It would be a real shame if streamlining NHS procurement rules inadvertently ended up undermining efforts to do more joint commissioning at local level.

The starting point for this debate must be that any new procurement regime retains key principles of fairness, openness and transparency

There is also a concern that statutory guidance on procurement issued by NHS England would in no way deliver proper accountability for billions of pounds of its own specialised commissioning. One of the reasons to have a procurement regime enforced through Monitor and the courts was to avoid the conflicts of interest inherent in NHS England marking its own homework when it comes to its direct commissioning responsibilities.

There are those who think that independent providers have an unfair advantage under the current regime. Two of the central myths surrounding the 2012 Health and Social Care Act are that most NHS contracts are tendered, and the private providers win most tenders. Neither of these things is true. But what we need is a level playing field where the sole criteria for winning a contract is that you can provide the best possible service within the available funding.

Having said this there are clearly issues that need addressing, not least the widespread view that procurement is not the best route to integrated care. So, what could be done to improve the existing procurement regime? The perception that services should always go to the lowest bidder regardless of concerns over quality needs to be tackled. And it is also right that commissioners should have the flexibility to prioritise – perhaps extending existing contracts for some services so they can get on with tackling major challenges of service redesign.

There is clearly a debate to be had about the future direction of these “legislative asks”, and we look forward to participating. But the starting point for this debate must be that any new procurement regime retains key principles of fairness, openness and transparency and takes to heart the Health Committee’s recommendation that “a diverse local health and care economy, with a mix of mostly public, but also non-statutory services (private providers, social enterprises, charities, and community and voluntary services), can… enable rather than detract from integrated care.”