The watchdog's plans to scrutinise referrals were set out in its official guidance on the procurement, patient choice and competition regulations linked to the Health and Social Care Act, known as Section 75.
Critics of the NHS competition rules described the Monitor guidance document as 'a lawyer's dream', and warned forcing NHS providers to compete for services risked damaging the health service.
Section 75 regulations were opposed by organisations including the BMA, which said they could enforce open competition in commissioning and subject GP commissioners to the threat of legal action.
Opponents said the regulations opened the door to NHS privatisation, and the promotion of competition among providers threatened integration.
But the Monitor guidance, now approved by health secretary Jeremy Hunt, said ‘choice, competition and integrated care are not mutually exclusive’.
An accompanying briefing note explains that the guidance is ‘intended to enable commissioners to decide in individual cases how to secure services in the best interests of patients'. It adds: 'It is for commissioners to decide what services to procure and how best to do this within the framework of the regulations.'
‘Competition should be employed where it serves the interests of patients, and is not an end in itself. The regulations do not impose competition on the NHS. No one will be forced to put services out to competitive tender and there are circumstances in which there might only be one capable provider of care.’
Setting out how Monitor will assess anti-competitive behaviour, the guidance said: ‘Monitor may consider GP referral patterns, the geographic proximity of the providers and any evidence of patients switching between different providers in the past in making this assessment.’
GPC member and a campaigner with Keep Our NHS Public Dr David Wrigley said the guidance ‘can only be described as a lawyer's dream’.
He said: ‘As many NHS campaigners predicted in early 2013 Section 75 is a legal minefield for commissioners. CCGs trying to commission services with ever decreasing funding from NHS England won’t want to risk a costly legal challenge from the private sector so will put contracts out to tender in order to prevent wasting scarce NHS funds on costly legal battles.
'The private sector, driven by the need to return a profit to their shareholders will be rubbing their hands with glee at the publication of this document. It is another example of how the coalition's Health and Social Care Act is a disaster for the NHS and for patients.’
Dr Wrigley said the regulations were good news for multinational health companies, but bad news for the NHS.
