My mission statement

The times we are working in now need a great deal of accelerated change and there must be no negotiating that down. So my mission statement for this part of my consultancy career is to be clear that there needs to be and will be a lot of change from the work that I do with individuals and organisations and if organisations don’t want that, then it is probably best to go somewhere else.

Read my statement in full »

More on the next steps on competition law and the NHS

Filed Under (Health Policy, NHS Providers, Primary Care Trusts, Secretary of State) by Paul on 22-04-2010

I am sure that blog readers are riveted by the politics of the NHS in the election, but to just remove yourself for a moment from that excitement, the real world of policy implementation doesn’t stop just because of the election.

Most of you will know that there is a set of rules called purdah where the Government is not allowed during the election to do anything that could give it political advantage.

But that doesn’t mean that all normal business stops.

Blog readers will remember the running saga of what had happened since the then Secretary of State Andy Burnham tried to impose his personal preference for NHS providers for all NHS patients. This started with a speech on 17 September and progressed through a case against him by the third sector Chief Executives organisation ACEVO.

On 28 March I posted an entry which said that the Cooperation and Competition panel had to drop the case because the DH stopped all rendering in East Anglia thereby removing the possibility of any case. At the time ACEVO thought they were winning the case and felt that the Panel were about to proceed further with it. They felt that the rather strange intervention by the DH to stop all tendering of services in east of England was a bit of a panic reaction to stop the Secretary of State from appearing in a bad light.

Being ferocious in their pursuit of the case ACEVO have been following up a Freedom of Information case on this material and have uncovered some important evidence.

First there is strong evidence that the Competition and Co-operation Panel were going to proceed with the investigation against the Secretary of State’s policy.

The FOI request reveals the CCP had drafted a public decision to proceed with further investigation of our case, and the minutes from the panel’s meeting say: “It was agreed that further investigation was needed”. They went on to say “The Panel decided that it could not dismiss the complaint at the end of Phase 1 and that it would be necessary to proceed to Phase 2″

This meant that if the Panel had been left to go further into the case, they would have been investigating whether the Secretary of State’s policy was anticompetitive or not.

Second there was evidence that the ACEVO case was very strong.

The paper submitted by Cooperation and Competition Panel staff to the Panel says “We have not yet had any submissions that argue that the conduct gives rise to any benefits to patients and taxpayers that should be taken into account”. It also reveals that the CCP had advised the PCT in question that “it may now be appropriate to suspend the tender process until the CCP review is completed”.

This means that the Panel could not find any evidence that when a PCT followed the personal policy that the Secretary of State advised them to follow, they could find not benefits to patients and taxpayers that would lead the Panel to say this was a worthwhile guidance for the PCT to follow.
Thirdly there is evidence that the next phase of the investigation would have been embarrassing for the DH.

The CCP papers state that in phase 2: “in the event of an adverse effect on patients and taxpayers the CCP will assess whether new policy had been implemented by the Department of Health which amended the scope of the Principles and Rules [of cooperation and competition] or their application to the conduct [of the PCT in question]. The CCP will also assess whether Great Yarmouth PCT had been following instructions provided by the Department of Health and/or East of England Strategic Health Authority and whether it was reasonable for GYW PCT to follow those instructions”.

This is a really important issue because it looks like the Panel was saying that the CCP would very likely have concluded that an “adverse effect on patients and taxpayers” would result from the PCT’s conduct,” because that PCT was following the Secretary of State personal preference.

To say this would have been highly embarrassing is an understatement. They would have found that if a PCT did what the Secretary of State had wanted them to do then they would not have been acting within the law on competition.

This is what I have been advising PCTs since October. There are times when doing what  a Secretary of State wants you to do, will place you outside competition law and saying that “I am only doing what a Secretary of State wanted” is not a good way forward.

PCTs are legal entities in their own right and they have to think for themselves.

Fourthly there is evidence that DH intervened at the very last minute. The FOI documents reveal that Gary Belfield, the Director General at DH, met with the chair of the panel the same day that the panel met. This was the day before the Panel was meant to publish its decision to proceed or not. They also reveal that Gary Belfield then phoned in to the Panel’s meeting, mid-way through its discussions, to tell them that DH had put a stop to the procurement process in question, thereby making the CCP’s discussions redundant. 

Unfortunately some of what ACEVO asked for in our FOI request has been withheld. Namely, correspondence between Gary Belfield (DH) and members of the competition panel. ACEVO suspects that in that withheld correspondence, the CCP are critical of DH policy in this area. The response from the CCP justifying their withholding of information here says “the CCP needs to be able to provide… advice in a candid and impartial manner without fear of attracting any criticism of the Department of Health… The CCP should be able to set out all of the pros and cons in relation to the effect of this policy… an obligation to disclose this advice might deter the CCP from providing it”. 

The election doesn’t stop all of this It just puts a small hold on the proceedings. The policy of a Secretary of State lives on after them until it is consciously changed. Unless this policy is clearly changed to bring it into line with competition law these cases will continue.

Leave a Reply