What should clinical commissioning groups do on 1 April 2013?
Authors: C. Gerada
Journal: BMJ (2013)

On 1 April 2013, in England, the NHS system of care and the secretary of state’s duty to secure and provide universal healthcare for all people throughout England will come under serious threat. The Health and Social Care Act 2012, which comes into force on that date, allows for wholesale dismantling of the NHS and privatisation of the supply, organisation, planning, finance, and distribution of healthcare, drawing on structures and ideas borrowed from the US insurance industry. It is underpinned by several regulations that are currently under dispute, not least of which is regulation 5. This regulation requires that clinical commissioning groups put all services out to competitive tender unless the group is satisfied that only a “single provider” can deliver the service. But how can any group be sure that there is only one possible provider except by undertaking an expensive tender? The alternative is to risk the wrath of the competition regulator and a legal battle. The government’s claims that general practitioners will lead commissioning are misleading. This is a front for privatisation plans that will leave trusted GPs bearing the brunt of the public’s wrath while much of the health budget is handed over to the for-profit commercial sector, services are closed, and entitlements to universal healthcare are eroded. In 2012, Andrew Lansley (then secretary of state) wrote to GPs saying, “Commissioners would not be forced to put services out to tender.” So too did the (then) health minister, Simon Burns, saying it was not the government’s intention to “impose compulsory competitive tendering requirements on commissioners, or for Monitor to have powers to impose such requirements.” In February 2013 Lord Howe, the health lead in the House of Lords went further, stating that, “Under regulation 5, commissioners would not be obliged to advertise or competitively tender where no market exists and there is only one provider capable of delivering their requirements.” Reassurances that commissioning groups would not need to competitively tender new or amended services is not reflected in the statutory instruments, where legal opinion says that only in exceptional cases would it be allowable to avoid competitive tendering. The government argues that the newly developed regulations were required to “make clear” previous procurement guidelines. But even its own officials don’t know what to make of the new regulations. NHS London chief executive Ruth Carnell recently tweeted, “I’m supposed to know what’s going on re all this. I don’t and I couldn’t for [the] life of me explain it to anyone.” She went on to ask the editor of the Health Services Journal to “write an idiots guide [to the rules for competition and tendering].” Monitor and the national Commissioning Board have attempted to add some clarity, saying that it is for “commissioners to decide” and adding that “no one is going to take any steps to persuade or push or force commissioners to use competition where there’s no evidence that it’s of benefit to patients.” So, barring further parliamentary processes, we have a set of regulations that no one understands and that seem to conflict with the previously stated intentions of the government that wrote them. These were produced in such haste that there has been no time for a proper democratic consultation. Once the regulations are implemented, clinical commissioning groups will not be able to use professional judgment to determine what is best for their patients and communities. Against a backdrop of severe financial austerity and considerable existing organisational unrest the new regulations will make things worse, not better. Market forces will determine how care will be provided, based on profits, and the earliest winners will be commercial lawyers. What are the options now for GPs and commissioning groups? Although the Health and Social Care Act has been passed, there is no need to hasten any process of privatisation by bringing in new regulations on 1 April 2013. Doctors should “first do no harm,” so we should demand that the government does not impose market driven policies where the evidence shows they would undermine patients’ continued access to existing health services at greater costs and without improving quality.