Despite the protestation of the royal colleges, GP leaders believe section 75 can only strengthen the commissioning agenda.
Despite the protestation of the royal colleges, GP leaders believe section 75 can only strengthen the commissioning agenda.
The British Medical Association (BMA), Royal College of General Practitioners (RCGP) and the Royal College of Nurses (RCN) have all called for changes to section 75, which deals with competition in the new NHS landscape.
However on Wednesday the House of Lords voted to keep the current wording of the regulation, which is part of the Health and Social Care Act.
Section 75 appeared to impose a duty on commissioners to advertise competitive tenders for most health services.
A Department of Health (DH) spokesperson said the suggestion the regulation will stealthily privatise the NHS and subsequent attempts to change the wording are “unashamed scaremongering”.
The spokesperson added: “Parliament has recognised that these regulations go no further than existing procurement law.
“[The regulations] explicitly set out that when buying services, GPs must always make decisions in the best interests of patients.”
Dr Michael Dixon, (pictured) chair of the NHS Alliance said an essential lack of trust was behind the suggestions of privatisation.
He told The Commissioning Review:“If you want absolute certainly around the regulation we haven’t got it – but life is not full of absolute certainty, so you have to go with probabilities.
“In a sense, the BMA and royal colleges are asking for absolute certainty, and behind that there’s a sense of suspicion.”
Dr Dixon claimed that although ministers have been clear with their opinions, “it’s a question, ultimately, of trust.”
He added: “I suppose the BMA and the colleges are saying they don’t trust the government’s responses.”
'Legal reprecussions'
The BMA, RCN and RCGP have urged the government to provide more information on how the regulation, which they deemed “concerning”, would work in practice.
Before the Lords debate Dr Mark Porter, BMA Council chair said: “Only explicit wording in the regulations would allow patients, doctors and commissioners to be absolutely certain that clinicians will have the freedom to act in the way they consider to be in the best interests of patients.”
BMA GP Committee chair Dr Laurence Buckman believed that there could be legal repercussions unless the regulation is clarified.
He said: “Commissioners could be put in the position of facing costly tendering processes and possible legal challenges from unsuccessful bidders because of ambiguous rules.
“That is why GPs want the regulations withdrawn.”
RCN, the body representing nurses, has also called for clarification on the regulations.
Dr Peter Carter, RCN chief executive said: “Competition in the NHS should only be applied where it helps to deliver high quality patient care, not on the basis of price alone.
“There will be many times when competition is unhelpful or simply inappropriate, and regulation should not force the issue.”
'No need to worry'
But Dr James Kingsland, National Clinical Commissioning Community lead agrees that section 75 simply “imports existing European procurement law”.
Dr Kingsland told The Commissioning Review: “If commissioning is done properly no one would need to worry about [section 75].
“Where there’s a collective agreement with the population’s support and a good commissioning process, with a supplier providing the service that’s needed – that’s not anticompetitive.”
NHS Partners Network chief executive David Worskett agreed that section 75 is just an example of “fair, open and transparent procurement processes.”
He said: “Despite allegations to the contrary, the regulations do not require all NHS services to be put out to tender.
“Commissioners will have a wide discretion as to when to use full procurement procedures and we are confident they will do so appropriately.”
Worskett believes the NHS “will not be able to thrive” without including new providers, who bring “innovation and integration”.
A full copy of section 75 of the Health and Social Care Act is available on the Department of Health website.
