This site is intended for health professionals only

Competition time?

Competition time?
25 February 2012

Monitor’s proposed role in the new NHS has fired a controversy that amendments to the Health Bill have not yet extinguished. As the FT regulator gears up to take its unprecedented role as ‘sector regulator’, Chair and Interim Chief Executive Dr David Bennett talks exclusively to Stuart Gidden

Monitor’s proposed role in the new NHS has fired a controversy that amendments to the Health Bill have not yet extinguished. As the FT regulator gears up to take its unprecedented role as ‘sector regulator’, Chair and Interim Chief Executive Dr David Bennett talks exclusively to Stuart Gidden

If it can be said that the radical Health and Social Care Bill effected explosive reaction among healthcare professionals and the wider public, the role of Monitor can be likened to the Semtex at its core.

The struck match was the bill’s original proposal that Monitor, the current financial regulator of foundation trusts, would be given a new duty to promote and enforce competition as the ‘economic regulator’ of the entire NHS in England. The bill also opens the health service up to competition law for the first time, leading to fears the health service would be run like a privatised industry in the manner of the utilities and telecommunications sectors.

For those concerned, Andrew Lansley’s appointment of Dr David Bennett as the chair of Monitor in March 2011 was not exactly reassuring. A former senior partner at global business consultants McKinsey & Company, Dr Bennett is also the co-founder of the company’s European Utilities Practice. In the same month he gave a widely misquoted interview to The Times in which he appeared to suggest similarities between the healthcare and utilities sectors, to the consternation of some GPs.

Since then, the fires have abated a little (but by no means entirely) after the NHS Future Forum’s ‘listening exercise’ led the government to amend the Health Bill to clarify Monitor’s role. It will now be the ‘sector’, as opposed to the ‘economic’, regulator, and its role will be to license providers of NHS services in England, to regulate prices and – in the most significant change – to tackle “specific abuses” of anti-competitive behaviour and not to promote competition as an end in itself. Its primary duty is now to promote and protect patients’ interests.

In addition to being chair, Dr Bennett is Monitor’s Interim Chief Executive until a permanent appointment is made, expected in early 2012. He therefore has a crucial and vast undertaking before him: Monitor will not only continue to regulate foundation trusts until 2016, but is to expand to around four times its current size as it develops its uncharted sector-wide role at a time of deep concern among health professionals and the wider public.

Dividing definitions
It is perhaps just as well that in person Dr Bennett, formerly Tony Blair’s chief policy adviser in 2005-07, projects a calm, analytic intelligence that appears unruffled by any furore. He seems satisfied with the outcome of the Future Forum exercise and the legislative amendments. “I think on the whole what the changes to the bill have done is more clearly define what we can do, and indeed in some cases what we can’t do,” he says.

Of the latter point, for instance, Monitor can no longer  intervene to allow two providers to share facilities, as the bill originally stipulated. This means that, for example, the regulator could no longer “force an agreement” if a GP did not wish a pharmacist to adjoin practice premises, or if a hospital did not allow a GP service a share of its space. “I think there is a risk of unintended consequences on this one,” says Dr Bennett. “But let’s hope that people will work it out for themselves.”

He admits the ‘economic regulator’ role as originally set out was “less than completely clear to us”. At the same time the removal of the duty to promote competition has not satisfied everyone. With regard to the new duty “to prevent anti-competitive behaviour”, the former shadow health secretary John Healey expressed concern that “this flipping of the language may not substantially affect how Monitor carries out its duties”.

So is it all just words and signals? Dr Bennett insists not. “It isn’t just communication,” he says. “The way the bill was worded before did give us a lot of freedom to choose how we do our job. It is more narrowly constraining us now, so that’s a real change. You could argue, ‘Well, will that make a difference in terms of what we do on a day-to-day basis?’ Well, maybe not a lot. But it could have made a difference, because we could have done other things. So I think these are very material changes.”

The exegesis can seem slight, however. Many have pondered the difference between promoting competition and preventing anti-competitive behaviour. “I think the critical difference is in terms of what you might call the ‘burden of proof’,” Dr Bennett explains. He stresses that the “fundamental” objective of Monitor is to “promote the interests of patients” and that “the use of competition is just one of the tools you can use” to achieve this.

“Where we had a duty to promote competition there was a presumption that competition was likely to be the right answer,” he says. “So we didn’t have to work too hard in proving [there should be] competition where we thought it was appropriate. The changes to the bill mean that if anyone wants to use competition to promote the interests of patients they have to be able to demonstrate clearly that that’s the best tool to use, rather than an alternative.”

Private misgivings
This may in some measure reassure those who feared a move to a privatised health service, but evidence that fears run high was seen in the reaction to Lord Howe’s comment in September that the bill offers “huge opportunities” to the private sector. The health minister’s comment was taken by Dr Laurence Buckman, Chair of the British Medical Association’s GPs’ Committee, to “betray how deep the government’s obsession with competition goes”.

Was Lord Howe’s assertion correct? “In some ways,” says Dr Bennett. “I’m not sure there’s such a big change from the situation we’ve got at the moment.” He insists the bill will not affect “the essence” of the Principles and Rules for Co-operation and Competition” (PRCC) that ensure a level playing field for providers (“though obviously they have to demonstrate what they offer is the best thing for patients”).

“The bill puts the [PRCC] rules on a slightly more formal footing, so I presume what Lord Howe was referring to is that that footing makes it a bit easier if, for example, individual providers feel they are not getting a fair shot at things, then they have a more formal way of representing their concerns”.

As someone so close, and for a time instrumental, to Tony Blair’s government, does he believe the reform programme will increase the level of competition that was seen under that administration? Yes and no. “I think in all honesty it’s probably a bit less at the moment,” he says.

Dr Bennett explains that this is “in part because we’re going through a transition, particularly on the commissioning front”, but also suggests that the financial pressure commissioners are under has resulted in “a tendency to sort of revert to what you’re familiar with. So if you’re used to negotiating with and commissioning from a local provider, the simplest thing to do may be just to stick with that.”

He adds, surprisingly: “I think the intention of the bill is to get us back to where the Blair government was. Their intention was to continue to provide opportunities for providers. But I wouldn’t focus on the private sector as such; the critical thing is that everyone has an equal opportunity.” He adds that other sectors – including foundation trusts and the voluntary sector – are just as keen for a piece of the action as independent firms.

In such an environment of competitive providers, commissioners will inevitably be even more crucial, as Dr Bennett stresses: “In all of this – true today, true in the future – the critical thing is what commissioners do. It’s commissioners that should be casting the net wide when they are looking to see who’s the best provider to meet the needs of their patients. It’s the commissioner that holds the money that gets spent in the patient’s interest.”

Competitive streak
But could, as some suggest, Any Qualified Provider (AQP) undermine commissioners’ powers? If providers are entitled to enter the market, might they not be bolstered by a licence from Monitor and the Care Quality Commission (CQC)? Should it not be commissioners who determine the shape of service provision?

“It should, and it is,” says Dr Bennett. “It is for the commissioners, starting with the NHS Commissioning Board, to decide which areas of care are open to AQP. Secondly, providers not only have to be registered with the CQC and licensed by us, but they also need to be in some way accredited by the commissioners. I don’t know whether the NCB has worked out how it’s going to do this, but [providers] will need to have some sort of contractual relationship with the commissioners. So the commissioners are very much in the driving seat on this”.

Of course, the rules on “abuses of competition” will inhibit commissioners in some way. Dr Bennett says Monitor would step in if commissioners are “not being fair in the way they’re treating all providers. So if, for example, they were having some sort of competitive tendering process to select a provider and they were not treating more potential providers in a fair way, that could be viewed as anti-competitive and we could step in and tell them they’ve got to do differently.”

What if an individual GP recommends a provider to a patient? Does that constitute “anti-competitive behaviour”?

“This is quite complicated,” says Dr Bennett. “Let’s start with services covered by AQP. The previous government took the view, and this government takes the view, that providing choice under what used to be Any Willing Provider and is now AQP is a good thing. There’s certainly evidence that patients want it – something like 75-80% of patients surveyed will say they want choice. Once [commissioners and the NCB] have decided this will apply and patients will get a choice of provider then it’s for commissioners to make sure that choice is offered.

“But that’s not to say, of course, that as advisers to the patient, a GP shouldn’t be helping the patient make that choice. If a patient says, ‘Doctor, just tell me where’s the best place to go’, it’s entirely reasonable, indeed appropriate, that the GP offers their advice. But what they mustn’t do is pretend the patient doesn’t have a choice. If they do, they must offer it.”

Aside from competition, Monitor is also required to support the delivery of integrated services where this would improve quality for patients. Many infer a certain paradox in all of this: how does integration sit with competition? Dr Bennett says greater integration is clearly needed where “different bits of the NHS struggle to talk to each other… and there’s no reason why competition should get in the way of any of that.

Co-operation among different players happens in all sorts of other markets subject to the full rigours of competition law, and there’s nothing that stops different players co-operating with each other to provide an integrated service where that’s desirable. So I don’t think there has to be any contradiction between competition and integration. In fact the two can work together sometimes.”

Of course, many GPs work as part of vertically integrated pathways alongside different providers. It would surely be difficult to expect commissioners to ensure that alternative providers are sought at each stage of such a pathway, when providers are already working together? “In all circumstances it’s for commissioners to decide whether or not they use a competitive process, but they have to make that decision in the best interests of patients,” says Dr Bennett.

“If [commissioners] choose not to use the competitive process, that’s fine as long as they can demonstrate that’s in the best interests of patients. If the view is a competitive process is desirable, but in practice the only people they talk to are those they themselves are linked with, that’s beginning to sound as though they’re not acting in the best interests of patients and that’s where we then need to be careful.”

“Formidable task”
It was ironically the consideration of patient focus in the Times interview that drew fire from GP leaders in early 2011, when Dr Bennett spoke of “important similarities” between the utilities market and the NHS. Dr Michael Dixon, Chairman of the NHS Alliance, berated the comparison as “naïve and simplistic” and said that “putting markets before patients is ethically wrong”. Dr Bennett clarifies that “huge differences” exist, but the key point is that they are essential services and Monitor has a responsibility to ensure continuity should a provider fail.

“At a very basic level, people’s water supply is essential to them,” he says. “So Ofwatt has to worry about how it makes sure that if one of the water companies gets into difficulty the water supply is still available. So although obviously supplying water and supplying healthcare services in some ways is about as different as you can get, nevertheless they are essential. In most respects health is very different.”

Monitor currently has 110 staff, but Dr Bennett says they have estimated they may need “300 or so people” to take on its sector-regulator role. “It’s a fairly significant increase in total size but we’re still going to be tiny. In the grand scheme of the NHS a few hundred is a very small number.”

That’s particularly so when considering Monitor’s daunting to-do list. A November report by think tank The King’s Fund said Monitor had been set a “formidable task with little precedent, so the risks of failure are considerable”. Dr Bennett’s steely gaze suggests he is on top of his brief, but he admits: “We have a lot of things we now have to take into account. It’s a long list now and I certainly wouldn’t want it to get any longer.”

Want news like this straight to your inbox?

Related articles