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The fight against NHS privatisation is far from over: more mobilisation is needed

The chief aim of the Health and Social Care Act was to de-nationalise the NHS - that is, to allow private companies to provide NHS services.

Section 75 of the Act uses the horrible double negative that the NHS Commissioning Board and Clinical Commissioning Groups must commission services
in a way that does “not engage in anti-competitive behaviour.”

In other words, services must be opened up to competition.

Crucially, the Act says that is up to “regulations” (that is secondary legislation via statutory instruments) to define how the “anti-competitive behaviour” would be prevented.

The Explanatory Note to the Act says that “these regulations will enshrine a full range of options for commissioners, including the ability to secure services without competition, where this would be in patients’ interests”.

However, the regulations, provided through Statutory Instrument 257 do no such thing.

These regulations are a blunt tool: they do not provide a “full range of options” to avoid competition.

Quite the opposite - the only exceptions to competition were for technical reasons (with no definition of what that means), for the protection of exclusive rights (ie protecting those all important patents), or in cases of extreme urgency.

This is a very narrow range of exceptions. For all other services competitive markets must be used.

The regulations say that any company who wishes to complain how a tender was carried out could avoid the expensive route of going to court and go straight to the judge and jury of Monitor, the regulator, which is given the power to prevent “anti-competitive behaviour”.

In other words, the result of any complaint is likely to be a foregone conclusion: if you complain about a lack of competition, the “anti-competitive behaviour”-busting Monitor will intervene. The regulations gave Monitor extensive powers to intervene allowing them to change contracts, change providers and even determining compensation.

Further, Monitor didn’t even have to wait for someone to complain - the regulations gave them the power to instigate investigations. That is, the all powerful
Monitor could instigate the investigation, perform the investigation, adjudicate and then impose Draconian sanctions on commissioners.

It is no wonder that a wide range of bodies, including the BMA, the Academy of Royal Medical Colleges and NHS Clinical Commissioners objected to these
regulations.

The size of the objections has forced the government to withdraw the regulations “for rewording”.

However, section 75 of the Act still remains. The government have not said that the regulations were wrong, they have simply said that the wording had "inadvertently created confusion and generated significant concerns" which means that when we get the new regulations we will get more of the same, just worded differently. Civil servants are now stretching for their well-thumbed thesauruses.

The fight against section 75 is not over, this is just the first round. The regulations caught off-guard a wide range of influential people, and for the next round the government will be more careful.

The new regulations will say the same as the original one, but the government will use the time to redraft the regulations to talk to those influential people and no doubt offer incentives and assurances.

This makes it even more important that the public mobilises.

When the regulations first appeared, it became clear that one route to complain about them was to write to the clerk of the Lords’ scrutiny committee. Normally the clerk receives no more than ten such objections to a statutory instrument, but within a few days the clerk received over 1,500 objections to the section 75 regulations.

The public concern over these regulations is large and if we find (as I suspect) that the reworded regulations will be the same as the original, it will be the strength of public objections that will force the government to re-think the whole NHS competition policy.

Richard Blogger writes about the NHS and social policy at NHS Vault.

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