NHS commissioning and procurement - 2 short lectures and a reading list

I have recorded a series of short lectures on NHS commissioning and procurement for my blended teaching at the University of Bristol Law School this coming academic year. In case they are of any interest, I am sharing two of them here.

The first one covers the organisation and regulation of NHS commissioning and procurement and primarily concentrates on the commissioning of health care services. The second lecture covers the centralisation of ‘hospital procurement’ through the NHS Supply Chain. They should be accessible through the click-through images at the end of the blog post.

The two short lectures aim to provide a (hopefully) accessible introduction to the issues covered in more detail in the accompanying reading list, which mainly comprises the following papers for each of the topics:

1. Organisation and regulation of NHS internal market, with a focus on commissioning and procurement

  • A Maynard and M Dixon, ‘Should the NHS abolish the purchaser-provider split?’, BMJ 2016;354:i3825, available at https://doi.org/10.1136/bmj.i3825.

  • C Paton, ‘Garbage-Can Policy-Making Meets Neo-Liberal Ideology: Twenty-five years of redundant reform of the English National Health Service’ (2014) 48(3) Social Policy & Administration 319-342.

  • L Jones, M Exworthy and F Frosini, ‘Implementing Market-based Reforms in the English NHS: Bureaucratic coping strategies and social embeddedness’ (2013) 111(1) Health Policy 52-59.

  • B Collins, ‘Procurement and Competition Rules. Can the NHS be exempted?’ (2015) King’s Fund briefing, available at https://www.kingsfund.org.uk/publications/nhs-procurement-competition-rules.

  • M Guy, ‘Between “Going Private” and “NHS Privatisation”: Patient choice, competition reforms and the relationship between the NHS and private healthcare in England’ (2019) 39(3) Legal Studies 479-498.

  • P Allen et al, ‘Public Contracts as Accountability Mechanisms: Assuring quality in public health care in England and Wales’ (2016) 18(1) Public Management Review 20-39.

  • D Osipovič et al, ‘Interrogating Institutional Change: Actors' Attitudes to Competition and Cooperation in Commissioning Health Services in England’ (2016) 94(3) Public Administration 823-838.

  • P Allen et al, ‘Commissioning through Competition and Cooperation in the English NHS under the Health and Social Care Act 2012: Evidence from a qualitative study of four clinical commissioning groups’, BMJ Open 2017;7:e011745, available at http://dx.doi.org/10.1136/bmjopen-2016-011745.

  • M Sanderson, P Allen and D Osipovič, ‘The Regulation of Competition in the National Health Service (NHS): what difference has the Health and Social Care Act 2012 made?’ (2017) 12(1) Health Economics, Policy and Law 1-19.

  • D Osipovič et al, ‘The Regulation of Competition and Procurement in the National Health Service 2015–2018: Enduring hierarchical control and the limits of juridification’ (2020) 15(3) Health Economics, Policy and Law 308-324.

2. Centralisation of NHS procurement

Feedback and suggestions on additional readings most welcome: a.sanchez-graells@bristol.ac.uk.

Some quick thoughts on NHS’s recommendations to Government and Parliament for an NHS Bill

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On 26 September 2019, NHS England and NHS Improvement Strategy and Innovation Directorate published the "NHS’s recommendations to Government and Parliament for an NHS Bill" supporting the NHS Long-term Plan. This is a document that provides additional details on the initial proposals of 28 February 2019, after the results of a public consultation have been taken into account.

Having read and mulled it over, I think a specific passage of para 96 (in blue) evidences two major misunderstandings underpinning the approach adopted by NHS England and NHS Improvement.

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First, there is an improper characterisation of the rules in the Public Contracts Regulations 2015 as exceedingly rigid and as preventing procurement of NHS services on the basis of quality and patient experience considerations over price or cost. This flies in the face of reg 67 PCR2015, which explicitly allows for trade-offs between price/cost and quality considerations in the award of *any type* of public contract, as the contracting authority is free to determine what is best value / most economically advantageous. This also ignores i.a. the special award criteria for healthcare and other social services in reg 76 PCR2015 and the extra flexibility this creates, as per the Crown Commercial Service’s guidance, or academic commentary such as eg Pedro Telles and mine.

Second, the subjection of NHS services procurement to PCR2015 rules is attributed to EU law. However, this ignores the UK's unilateral power to exercise discretion under very significant possibilities for structuring NHS governance in a manner that wouldn't trigger those rules. This includes the space for in-house & public-public cooperation under Directive 2014/24/EU, as well as possibility of creating voucher systems underpinning patient choice in a manner that would exclude procurement rules (under Falk Pharma/Tirkonnen, see here).

Ultimately, the totality of the Sept 2019 proposals continues to ignore the origin and implications of the UK's domestic choice of structuring NHS governance around an 'NHS internal market', and solely seek to de-regulate rather than de-marketise the NHS. The same issues I raised in written evidence to the House of Commons Health and Social Care Committee regarding the previous iteration of proposals by NHS England and NHS Improvement remain relevant.

In my opinion, they should be taken into due consideration in the context of scrutinising any future NHS Bill. After all, the new proposals have cherry-picked from the Health and Social Care Committee's report and ignored crucial parts of its recommendations [2] and [7] (see here for more details).

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Failing to explore all possibilities under current rules (including under EU law) and pushing for the mere de-regulation of the NHS could have severe negative impacts on efficiency and oversight of NHS expenditure. I submit that it would not be in the public interest.