Competition amendments to the Health and Social Care Bill

Competition is proving to be the most controversial topic in relation to the NHS reforms. In addition to the media storm surrounding the subject, it has been debated in detail during the committee stage of the Bill's passage. The committee stage has now ended and an amended version of the Health and Social Care Bill is available. So what is the latest position on competition in the amended Bill?

The original version of the Bill included a power to introduce regulations requiring GP commissioning consortia and the NHS Commissioning Board to promote competition in the provision of NHS services. This has been replaced with the possibility that regulations will instead require commissioners ?not to act in a manner that would (or would be likely to) prevent, restrict or distort competition in the provision of healthcare services for the purposes of the NHS?.

Arguably, a requirement to promote competition may have been wider than an obligation not to act in an anti-competitive way; although this is debatable. The new wording does, however, align with wording used in national and EU competition law. This is interesting as it demonstrates a clear intention of the government to apply competition law principles to commissioners. What is notable about this is the fact that, currently, PCTs (as commissioners) are generally regarded as not being subject to competition law when they commission NHS services. It is also possible that competition law, in the same way, may not apply to GP commissioning consortia and/or the NHS Commissioning Board. However, even if the main competition legislation itself does not apply, the new proposal under the Bill will allow the government to impose a comparable obligation specifically on commissioners, through NHS legislation. 

The Bill also contains a number of procedural amendments regarding Monitor?s power to investigate competition and procurement issues, the need for Monitor to publish guidance on compliance with the proposed regulations on competition and procurement, and how Monitor will exercise its powers. Further new provisions relate to GP commissioning consortia and the NHS Commissioning Board giving undertakings to Monitor, in relation to competition and procurement compliance.

The much publicised change from a 'maximum' tariff to the National Tariff representing a national price has also been included.

For further information, see the latest Bill (with the amendments marked up) and our joint Mills & Reeve/NHS Confederation briefing on competition and procurement.

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