Reassurance and Amendments for new tendering rules.

The readiness of the government to respond by making further modification to regulations on tendering rules and competition, in the Health and Social Care Act 2012(1), following significant criticism and lobbying against the tendering regulations of s75 (2), should not be denigrated. It shows an understanding of widespread concerns and a willingness to actively reassure even further and this should be welcomed.

The expected further changes to the NHS competition regulations under s.75 (S1257)(3) are in part intended to address criticism that it compels Clinical Commissioning Groups (CCGs) to consider private providers for all health contracts, regardless of the effectiveness of the current provider. Effectively, forcing compulsory competitive markets and privatisation on NHS services. The regulations, if unchallenged, will come into effect on 1 April 2013.

Despite earlier reassurances by Lord Howe, (4) that these new regulations “would not oblige commissioners to create the conditions for new markets to develop where they considered this unnecessary” and that “commissioners would not be obliged to fragment services to enable providers to compete or stimulate market entry”; there was still understandable deep criticism and concern both from the public, politicians, clinicians and the medical professional bodies in the media. (5)(6)(7).

As soon as anyone places the term ‘privatization’ in the same breath as ‘the NHS’, there is immediate fear that care will be compromised at the expense of profits. However, the recent shocking hospital crisis in Staffordshire Hospital (“where hundreds of patients died despite repeated warnings that care was not good enough)” (8) and the horrific cases in Worcestershire Acute NHS Hospital (“of multiple NHS failings, patients were left begging for water or left hungry after trays of food were dumped too far from their reach – and one man died of starvation”) (9), were purely NHS derived.

While privatization of the NHS is far from desirable and a ‘free at point of access’ service should be protected; it is also important that a balanced and practical approach regarding this concept is taken.  Difficult decisions need to be taken and strategic plans introduced, in order to meet the ever growing demands placed on the UK’s health system by an aging and increasing population in a cost effective way. Advances in scientific knowledge, medical discoveries and new technology have increased health care possibilities and fuelled higher public expectations of the NHS, which is far beyond what was possible when it was originally set up.

Other countries, notably Sweden, have introduced a balance of privatization within their health markets and have shown very good outcomes (10) and high patient satisfaction and demand, although there was initial opposition to such changes. Although the delivery of care by private providers will require careful scrutiny, it is important to recognise the potential benefits from privatization in some service areas.

Prior to the latest decision to modify the rules on tendering, health ministers had been accused reneging on initial government reassurances regarding privatization in the NHS. Effectively     utilising a ‘back-door’ legislative process to quietly push new tendering rules through parliament, which would significantly increase the use of private companies providing health services nationally.

Although it is generally accepted that there are some areas where competition could create benefits and may raise quality and standards. The primary concern was that under the new tendering rules, CCGs would be compelled to put the majority of services out to tender, instead of only particular services, or areas where the medical profession accepts competition may be beneficial and increase patient choice.

Stressing the importance of achieving the right balance of competition, Dr Michael Dixon (NHS alliance) was reported in a BBC interview as saying “It means not having to introduce competition willy-nilly – but using it when it’s in the interests of patients.”(11)
The new amendments will now clarify and confirm that CCG‘s would have autonomy to select when to introduce competition for services and there will be no obligation for all services to be tendered. Importantly, the regulator Monitor would not be able to stipulate what services were put to tender.  There would be precise rules for any unusual situations when there is no competition and only one organisation is in a position to tender to supply a service.

Norman Lamb, Lib Dem health minister, denied that that wholesale privatization was planned.  He responded to criticism and questions in the House of Commons regarding private competition in the NHS, by assuring listeners that key aspects of the regulations would be re-viewed “to ensure … that they were not open to any misinterpretation.” (12)

These modifications to the Act come less than a month before the detailed and complex NHS reforms, introduced by the Health and Social Care Act, come into being throughout the UK.   It is to be hoped that these provisions do indeed establish a framework within which CGCs can indeed deliver, what one CGC succinctly termed “a sustainable healthcare system in the most significant financial challenge in generations, whilst maintaining the highest quality services possible” (13).

Iseult Roche

For further reading see links and references.

1. Health and Social Care Act 2012 –

2. S.75 –

3. SI 257 –











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