Commissioning: Can other laws protect GPs against section 75?

GPs fear the impact of competition rules, but might find lower-profile legislation can provide a counterbalance. Neil Roberts investigates

Laws requiring NHS competition could be adapted using the Localism Act (Photo: Ian Bottle)
Laws requiring NHS competition could be adapted using the Localism Act (Photo: Ian Bottle)

Doctors' leaders, campaigners and opposition politicians have been pressing ahead in recent weeks with a last-ditch attempt to throw out controversial 'section 75' regulations on NHS commissioning.

The BMA has called for the regulations to be replaced by new rules which 'unambiguously reflect previous government assurances that commissioners will not be forced to use competition when making their commissioning decisions'.

But if the government refuses to budge, as seems likely, less infamous legislation could provide a tool to protect local NHS providers - potentially including GPs - against the worst effects of NHS competition.

Two pieces of legislation that have gone largely under the NHS radar - the Social Value Act and the Localism Act - could provide a counterbalance to the competition rules by providing commissioners with a legal basis on which to give more weight to bids from NHS or not-for-profit service providers.

Social benefit

David Hunter, a procurement specialist at City law firm Bates Wells Braithwaite, told GP that commissioners who want to take social benefit into account and are willing to be proactive, creative and interpretive could find the Social Value Act a useful tool to give NHS and other not-for-profit providers a fighting chance in procurement.

The Public Services (Social Value) Act 2012, to give the legislation its full name, is designed to allow public service commissioners to put social benefit at the centre of procurement decisions.

In itself the Social Value Act would not negate the requirements of the section 75 regulations, Mr Hunter explains, but it would allow commissioners to take into account social or environmental benefits related to the service.

'If you are in a situation where you say the specification of the service will include (the social benefits), and we know there is only one provider who can do that, then rather than go through the expense of the procurement process, you can go with that provider,' he adds.

Changing practice

Mo Girach, special adviser to the NHS Alliance, and lawyer Julian Blake, also from Bates Wells Braithwaite, wrote in an NHS Alliance briefing that while the Social Value Act may seem like a weak obligation unlikely to change practice, 'it is a clear duty'.

They also pointed out that the Localism Act, meanwhile, 'promotes the idea that there is particular value in service delivery close to the local community'.

NHS Alliance chairman Dr Michael Dixon agrees the legislation could provide a counterbalance to section 75.

'I think this is really quite a powerful means of emancipating local commissioners to go for what they think is best. If a GP practice is offering a local service, especially if that service is within a social business model - not for profit - if that service is being offered at the right price for the right quality, if it can be shown to have an intrinsic local value, it could have a strong case when submitting that to commissioners.

'Commissioners would have a strong case, especially if local opinion is behind it,' Dr Dixon says.

Mr Hunter cautions against seeing the Social Value Act as a means to avoid having to put services out to competition, however: 'What the Social Value Act adds is not so much the ability not to compete, more the ability to structure the competition so you're not simply ending up with the private provider with the biggest balance sheet.'

Procurement

'Risk-averse' CCGs may not want to go too far in considering social considerations and feel it is safer to go through traditional procurement with regard to section 75, he adds.

'If you start from that point, you're probably not going to look first of all at how to interpret the regulations, and then, if you want to address the social benefits on top, it's almost setting up another minefield after the first one,' he says.

GPC member and anti-section 75 campaigner Dr David Wrigley says legal complexity is a key consideration: 'Commissioners have a minuscule budget to provide local health services, while also having to reduce services.

'What we need is a clear, unambiguous statement from the coalition that commissioners will be free to choose their providers with no worry about legal challenges or costly bureaucracy.'

Ardent opponents of private service provision may take some persuading. But if section 75 stays, opportunities for commissioners who want to shape the process for social benefit may be worth exploring.

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