Response to NHS England provider selection regime consultation

Our response to the consultation, April 2021

This is our response to the NHS England consultation “NHS Provider Selection Regime – consultation on proposals” which ran from February to April 2021.

Our response

Q1. Should it be possible for decision-making bodies (eg the clinical commissioning group (CCG), or, subject to legislation, statutory ICS) to decide to continue with an existing provider (eg an NHS community trust) without having to go through a competitive procurement process?

AOP response: Agree

In general, we agree that CCG and (in future) ICS commissioners should be able to continue with existing providers without a competitive procurement, as long as the existing service is working well for patients and the transparency and scrutiny requirements governing commissioning are robust enough to manage the risk of ‘closed shop’ arrangements that could work against the interests of patients (see our response to Q7 below).

The consultation proposes that continuation of existing arrangements should be acceptable where patients already have the opportunity to exercise choice, such as in the case of core primary care services commissioned on the basis of a continuous contract, and in principle we agree. The national NHS sight test service delivered by primary care optical practices under the General Ophthalmic Services (GOS) contract is readily available to patients on demand, with no need for registration at a particular practice.

However, we argued in our response to the NHS England and NHS Improvement consultation on next steps for ICSs that the GOS contract should not be moved from national to ICS level. We noted that moving GOS commissioning from national to ICS level would offer no benefit in terms of meeting local population need but would generate additional costs and complexity both for commissioners and providers, particularly given the need to ensure that GOS is commissioned to the same standard and the same level of service availability in each ICS area to avoid health inequalities. We are pleased that in its response to the consultation NHS England confirmed its continued to commitment to national contractual arrangements across the primary care contractor professions.

Q2. Should it be possible for the decision-making bodies (eg the CCG or, subject to legislation, the statutory ICS) to be able to make arrangements where there is a single most suitable provider (eg an NHS trust) without having to go through a competitive procurement process?

AOP response: Agree

We agree the proposal will have some benefits in terms of reduced bureaucracy, but it also poses a risk that without a competitive process, ICSs will enter into arrangements that are sub-optimal for patients. We think the key mitigation for this risk is for ICSs to involve the full range of primary care providers in their planning and decision-making. For primary care optical practices, the appropriate vehicle for this engagement will be Local Optical Committees (LOCs), statutory bodies which represent the GOS contractors in their geographical area and are funded by a levy on GOS contracts.

Q3. Do you think there are situations where the regime should not apply/should apply differently, and for which we may need to create specific exemptions?

AOP response: Neutral

If the risks around commissioning decisions are effectively mitigated by provider participation in ICS planning and decision-making, and by robust transparency and scrutiny requirements, we do not see a need for specific exemptions.

Q4. Do you agree with our proposals for a notice period?

AOP response: Agree

In the absence of a competitive procurement process it is clearly vital that there is a notice period allowing interested parties to make representations about contracting decisions. The consultation proposes a notice period of “e.g. 4 - 6 weeks unless a shorter period is required due to the urgency of the case”. In our view an eight week notice period should be the absolute minimum except in cases of genuine emergency, such as the need to put in place arrangements to respond to a pandemic or other public health crisis. It is also important that information about decisions should be published prominently so that interested parties will have enough time to make representations.

Q5. It will be important that trade deals made in future by the UK with other countries support and reinforce this regime, so we propose to work with government to ensure that the arranging of healthcare services by public bodies in England is not in scope of any future trade agreements. Do you agree?

AOP response: Strongly agree

The structuring of healthcare provision by public bodies in England is a matter of public policy, and should not be constrained or disrupted by future trade agreements.

Key criteria

Q6. Should the criteria for selecting providers cover: quality (safety effectiveness and experience of care) and innovation; integration and collaboration; value; inequalities, access and choice; service sustainability and social value?

AOP response: Agree

The criteria do not currently include consideration of available information and feedback about patient satisfaction with providers’ existing services. Where this information is available we think providers should be required to take it into account, either as part of the ‘quality’ criterion or as a separate criterion.

The consultation proposes that there should no central hierarchy of importance to the criteria. Although this makes sense in principle given the range of settings in which the criteria will apply, we suggest that the quality and value criteria should always be given significant weight in commissioners’ decisions.

Transparency and scrutiny

Q7. Should all arrangements under this regime be made transparent on the basis that we propose?

AOP response: Strongly agree

The removal of competitive procurement for large amounts of public healthcare provision is sensible in policy terms but runs a risk of commissioning decisions that are not in patients’ interests. Transparency requirements are a key mitigation against this risk, and must therefore apply to every arrangement made under this regime.

General questions

Q8. Beyond what you have outlined above, are there any aspects of this engagement document that might:

  • Have an adverse impact on groups with protected characteristics as defined by the Equality Act 2010?
  • Widen health inequalities?

AOP response: No

Q9. Do you have any other comments or feedback on the regime?

AOP response: No