Health commissioning blog


April 17, 2014 2:11 PM | Posted by Payne, Fiona | Permalink
New EU procurement directives come into force today, 17 April 2014. The UK government now has two years to implement the new rules into national law, although the government continues to state that it intends to do so more rapidly.

The new directives bring about a number of changes to the existing procurement law regime. For commissioners, the area of particular relevance is the abolition of Part B services. This does not, however, mean that all health services will have to be tendered in accordance with the full rules, procedures and timescales imposed by procurement law. Instead, healthcare services (along with many other former Part B services) will be subject to a new light touch regime.

Under the new light touch regime, it will be mandatory to advertise contracts for NHS funded health services in OJEU, if their value exceeds 750,000 Euros. At present, this is not required.

The remaining details of the light touch regime are to be decided nationally. The EU directive requires only that the light touch regime complies with the usual EU Treaty principles, such as equal treatment and transparency. The UK government issued discussion papers on the options for the new regime last year and the responses are being taken into account. We await further information as to what the UK government decides. Note that one option is to specify that contracts can only be awarded on the basis of "price-quality ratio" and not lowest price alone. In practice, this is unlikely to make a difference to the award of healthcare services contracts, particularly as the Procurement, Patient Choice and Competition (No. 2) Regulations 2013 already require commissioners to award contracts to the providers most capable of meeting patient needs, as well as providing the best value for money.

Commissioners should bear in mind that the Procurement, Patient Choice and Competition (No. 2) Regulations 2013 will continue to apply to the commissioning of NHS services, just as they currently apply alongside the existing procurement regulations.

Finally, a reminder that all procurement policies, procedures and standard documentation used by commissioners will need to be updated in line with the new rules in due course.
April 10, 2014 11:29 AM | Posted by Grey, Philip | Permalink

Eight London CCGs are planning to move their commissioning support functions in house according to the Health Service Journal (HSJ). Currently the North West London CCGs (Brent, Ealing, Harrow, Hillingdon, Hounslow, Kensington and Chelsea, Westminster, and Hammersmith and Fulham) commission support services from North West London CSU. However they are reviewing bringing this function in house with their governing bodies. The findings are due to be published at the end of April (HSJ reports). If the CCGs’ business case is approved this could see three- quarters of business and staff transfer to the CCGs.

This move is likely to cause concern for other CSUs fearing that other CCGs may follow the North West London example. This is certainly possible - CCGs covering large populations which can offer them the economies of scale to host their own commissioning support services should they wish to do so. We may therefore see other CCGs reviewing their commissioning support options. Such a development would risk a destabilising effect on the commissioning support market which NHS England has been cultivating to date.

April 7, 2014 4:36 PM | Posted by Durham, Chris | Permalink

April 1st marks the next stage in the Personal Health Budget’s journey, which, after a series of pilot trials, is now available nationally. NHS England has announced that from 1 April 2014, patients will have the right to request a personal health budget which is, as it sounds, an agreed, budgeted amount of NHS money made available to individual patients with long term conditions to meet their healthcare and wellbeing needs. A personal health budget can mean either a notional budget (allocating a notional “pot” of money to a patient’s needs), direct payments (a payment directly to an individual patient under agreed conditions to allow them to manage their care) or a third party arrangement .

It is, of course, a right to ask, not a right to have a personal health budget, so commissioners will still need to assess whether a patient is eligible for a personal health budget and whether it is appropriate. To comply with the requirements in the National Health Service (Direct Payments) Regulations 2013 commissioners will need to show they have considered: (a) whether a personal health budget is appropriate for a person with that person's condition; (b) the impact of that condition on that person's life; and (c) whether a personal health budget represents value for money.

NHS England has published a suite of guidance materials to assist commissioners in deciding whether a personal health budget is appropriate and the practicalities of setting up and managing arrangements. These guidance notes are available to view on NHS England’s Personal Health Budgets webpage.

If you require assistance or would be interested in booking a training session on the new guidance for your continuing healthcare or other teams, please do not hesitate to contact .

March 28, 2014 3:00 PM | Posted by Richards, Tania | Permalink

NHS England has published Commissioning for Value – comprehensive data packs to support Clinical Commissioning Groups (CCGs) and area teams.

The data packs provide CCGs and area teams with practical where to look support in gathering data to help transform the way care is delivered for their patients and populations. These packs provide localised information about prioritising areas for change and utilising resources, and will help commissioners make improvements in healthcare quality, outcomes and efficiency.

In October 2013 NHS England provided all 211 CCGs with comprehensive data packs to support effective ‘Commissioning for Value’.

You can view the data pack for each of the area teams and CCGs using the regional links below.

For further information on Commissioning for Value data packs, please go to NHS England’s Commissioning for Value webpage.

March 28, 2014 2:52 PM | Posted by Shah, Surbhi | Permalink

The Government’s attempt to increase the efficiency of the tribunal service has led to the introduction of a compulsory early conciliation scheme through ACAS. The scheme will be effective from 6 April 2014 and compulsory from 6 May 2014 (with transitional provisions operating between April and May). From 6 May, subject to limited exceptions, an employment tribunal claim cannot be commenced without first attempting early conciliation via ACAS. The scheme’s framework has been introduced by the Enterprise and Regulatory Reform Act 2013. A four step procedure has been established:

  • Step 1: the prospective claimant must send information to ACAS in the “prescribed manner”.
  • Step 2: an early conciliation support officer will then make initial contact with the claimant and refer the case to a conciliator.
  • Step 3: the conciliation officer must try to promote settlement within the “prescribed period” of one month (subject to a maximum two week extension).
  • Step 4: if at any stage the conciliation officer concludes it is not possible to reach settlement or the time has expired, a certificate is issued. This can include a situation where ACAS is unable to make contact with the claimant or respondent after making “reasonable attempts” to do so. The claimant is unable to commence most claims (with limited exceptions) without the certificate.

So that claimants will not be penalised by taking time to conciliate, the rules on calculating the time limit for issuing tribunal claims (normally three months) will be changed in two ways. Firstly, the time limit clock will stop running during the conciliation period. Secondly, if the time limit (as extended by this new rule) would still expire less than a month after the end of the period, a claimant will have a full month from the date they receive the certificate from ACAS in which to lodge a claim. The combination of these two rules means that if claimants approach ACAS right at the end of the original limitation period, they can have up to two and a half months longer to bring a claim (i.e., the maximum conciliation period of six weeks, plus a further month after it ends).

Time will tell how effective the scheme will be.  Do you remember the statutory dispute resolution procedures ? The extension of time provisions may well give rise to satellite
litigation on whether time limits have been met.

March 21, 2014 10:22 AM | Posted by Payne, Fiona | Permalink

The Department of Health has published a draft Legislative Reform Order (LRO) to address an issue which many of you will have faced since April 2013. Under the NHS Act 2006, commissioners currently face the following two obstacles in relation to joint working:

  1. Although section 14Z3 allows CCGs to exercise commissioning functions jointly, it does not allow CCGs to form joint committees. This seems odd, especially as PCTs could previously do this and as CCGs can form joint committees with other organisations.
  2. CCGs and NHS England can jointly exercise NHS England’s functions and NHS England can exercise CCG functions, where requested. However, CCGs and NHS England cannot jointly exercise CCG functions, or form a joint committee.

The LRO proposes that both of these points be amended in the NHS Act 2006, so as to reduce the administrative burden on commissioners. Consultation on the proposals showed support for the changes. We have certainly been advising commissioners on how they can achieve joint working under the current rules and our view is that these amendments should be welcomed. They should make it easier for commissioners to work together in order to improve service quality, value for money and consistency.

For any advice on this issue please contact .

March 20, 2014 5:02 PM | Posted by Jolley, Laura | Permalink

The Supreme Court handed down the long awaited judgment this week in relation P v Cheshire West and Chester Council (& Ors) and P and Q v Surrey County Council (referred to in the judgment as MIG and MEG). The Lords agreed that P was deprived of his liberty and by a four to three majority decided that MIG and MEG were also deprived of their liberty.

This decision marks a fundamental shift in determining whether there is a deprivation of liberty. There are likely to be thousands of people who were not considered to be deprived of their liberty before Wednesday who will be today in light of this judgment.

Local Authorities and health bodies alike will now have to re-consider their case load and determine whether they are commissioning a care package which amounts to a deprivation of liberty and if so make the necessary referral for an DOLS assessment. If the service user is not in a care home or hospital an application to the Court of Protection may be required. Failure to do so may result in a claim being made for unlawful detention.

This remains a complex area of law. We have produced a briefing on the Supreme Court’s decision which you can read: Supreme Court hands down decision on the joint appeals of Cheshire West and P&Q.

If you have any queries or require advice in relation to any particular issues concerning your organisation or you would like training on the subject of deprivation of liberty or the Mental Capacity Act 2005 more generally, please contact .

March 20, 2014 4:54 PM | Posted by Elsegood, Simon | Permalink

As part of the Government's drive to reduce red tape, the Department of Health (DH) is proposing to use a legislative reform order to amend the NHS Act 2006. The order will enable:

  • two or more CCGs to form a joint committee when carrying out their functions; and
  • CCGs and NHS England to jointly exercise CCG functions.

The draft order has been laid in Parliament and is awaiting approval, and can be found here. This is obviously an improvement, but still plenty of red tape left for DH's bonfire.

March 13, 2014 4:25 PM | Posted by Grey, Philip | Permalink
The House of Lords Select Committee on the Mental Capacity Act 2005 was published this morning. This is the Act that governs how to assess if a patient has capacity to take decisions, for example whether to consent to medical treatment, or whether to agree to a proposed home care package. It also sets out how healthcare bodies and professionals should take decisions for patients where they lack such capacity. It includes a regime - the Deprivation of Liberty Safeguards, or DOLS - which controls how patients without capacity may be controlled or restrained, or prevented from leaving a health or care setting, for their own safety. It is the basis of hearings in the Court of Protection, which many commissioners have been drawn into in recent years.

The Committee has been reviewing the way in which the Act works in practice for many months. Laura Jolley, a senior solicitor in our Cambridge office, was part of a group of leading practitioners which submitted a paper to the Committee, as was reported in the Independent.

The report praises the Act as a "visionary" piece of legislation but it is highly critical of the way in which it has been implemented. In the health sector, it blames a "prevailing culture of paternalism" for preventing the Act becoming widely known or implemented. In our experience, staff in many healthcare organisations have
a good, detailed understanding of the Act and implement it effectively on a daily basis, often in very difficult circumstances. Sadly, that is not the case everywhere, as the report makes clear.

The Committee makes two primary recommendations. First, that there should be a single body tasked with overseeing the implementation of the Act. This could be an existing organisation or an entirely new one.

Their second main recommendation is that the DOLS regime should be scrapped and re-written. Having grappled with the DOLS regime many times, I would share the concerns of the Committee that the legislation is difficult to understand or to implement. The report includes a wonderful quote from the Vice-President of the Court of Protection that the experience of writing a judgment on the safeguards leaves judges feeling “as if you have been in a washing machine and spin dryer”.

As ever with a report of this nature, the question is "what now?" Will the recommendations be acted on? Or does the long grass beckon? Is there the appetite within government for setting up another public body to oversee the Act? If the decision is taken to ask an existing body to fulfil this role, what are the chances of them being given the funds to take meaningful action? We will let you know about the government's response to the report once it is published.
March 13, 2014 4:20 PM | Posted by Richards, Tania | Permalink

This month’s recent Clinical Commissioning Group Bulletin dated 6 March 2014 promotes the publication of NHS Standard Contract supporting documents which can all be accessed on the NHS Standard Contract webpage.

They include:

  • Collaborative Commissioning Agreements
  • Variation Agreements for contracts in 2013/14, 2012/13 and 2011/12 form
  • Variation Guidance

The following documents will be published shortly:

  • NHS Standard Contract 2014/15 Technical Guidance (final version)
  • NHS Standard Contract Schedule 7 (pension arrangements) and guidance

If you have any queries or require advice on using these documents, please contact .

March 6, 2014 3:29 PM | Posted by Richards, Tania | Permalink

A report by NHS Clinical Commissioners (NHS CC) calls for a more joined up approach to primary care commissioning. NHS CC found that the reforms to primary care commissioning were not supporting ‘transformational ambitions’ at a local level and that clinical commissioners must be able to jointly commission services with NHS England if quality of care is to improve.

The publication, ‘Primary Care Commissioning, Transforming healthcare in the community’ explores the challenges to improving quality and offers some examples of good working partnerships and explains why integrated services must be founded on a ‘whole system’ commissioning strategy if clinical commissioners are to improve care to patients and local communities.

Moving forward, NHS CC believe that an immediate change NHS England could implement that would improve collaboration between area teams and clinical commissioners would be to give ‘teams greater autonomy in deciding their local approach to primary care commissioning, rather than adopting a single operating framework’.

NHS CC’s full report is available here.

March 3, 2014 9:59 AM | Posted by Shah, Surbhi | Permalink

In BS v Dundee City Council, the Court of Session (the Scottish Court of Appeal in civil matters) has given some useful guidance on a number of key issues that employers ought to address when considering dismissing an employee on "capability" grounds following a long period of sick leave.

The key issues to address are:

  • Whether the employer could be expected to wait any longer and, if so, for how much longer before dismissing the employee. Relevant factors could include whether the employee has exhausted sick pay, whether the employer is able to use temporary staff to cover the absence, and the size of the organisation.
  • Whether the employee had been consulted with, and their views taken into account, and whether such views have been properly balanced against the medical professional's opinion.
  • Whether reasonable steps had been taken to assess the employee's medical condition and likely prognosis. It is to be noted that Tribunals have a high expectation that NHS organisations will obtain considered medical evidence.

The crucial question in determining whether a capability dismissal is reasonable is "whether any reasonable employer would have waited longer before dismissing the employee" taking account of the above factors. The court also pointed out that length of service is not automatically relevant. In a capability hearing, the important question is whether the length of service indicates that the employee is likely to return to work as soon as they can.

March 3, 2014 9:53 AM | Posted by Durham, Chris | Permalink
NHS England has this week announced the start of its procurement exercise to set up a framework agreement of providers of Commissioning Support Services. NHS England’s aim is to provide a framework to enable commissioners to select from a list of providers that have demonstrated a capability to deliver a full end-to-end commissioning service. Providers will need to demonstrate capabilities across all service lines in each of the Lots which NHS England has developed via a consultation process with stakeholders. Bidders will be expected to bring in additional support as required and so bids will be accepted from sole providers, lead providers (acting on behalf of sub-contractors) and multiple providers acting as a consortium.

The framework is split into two lots and the second lot will allow commissioners to select providers of more specific, niche support services such as medicines management and continuing healthcare and funded nursing care support services.

Commissioning support services are part A services (as defined by procurement rules) so commissioners will need to ensure they procure such services via a process which complies with the Public Contracts Regulations 2006 and EU procurement principles. This framework agreement should simplify this for commissioners and help run a compliant process, provided of course that commissioners follow the call-off procedures in the framework.

As has been reported previously in this blog, commissioners will be expected to competitively tender their commissioning support services in due course. The deadline for this was recently extended to April 2016 (as reported in the blog entry dated 2 September, 2013).

NHS England has issued a Pre-Qualification Questionnaire and details of how to access this are included in the announcement here. Providers will need to respond by 12 May 2014. An invitation to tender will then be submitted to shortlisted bidders on 14 July 2014 and NHS England has signalled its intention to conclude the process and appoint providers to the framework by the end of November 2014.

Commissioners will not be compelled to use this framework agreement once it is established, and they will be free to run their own procurement exercise to obtain the commissioning support that best meets their requirements.
February 20, 2014 2:46 PM | Posted by Williams, Jane | Permalink
The Court of Appeal has recently revisited the vexed question of the determination of ordinary residence – in this case in relation to a severely disabled young adult who lacked capacity – and considered the application of the test set out in R v Waltham Forest London Borough Council, ex parte Vale (1985).

P had been born with multiple disabilities and was cared for by his parents in Wiltshire until they moved to Cornwall, when he was placed with long-term foster carers in South Gloucestershire under s20 Children Act 1989. His parents were closely involved in decisions affecting him and visited him several times a year. P occasionally visited his parents in Cornwall.

The Secretary of State was asked to determine P's ordinary residence in order to establish which local authority had responsibility for P, under s21 National Assistance Act 1948, when he turned 18. He applied the test from Vale (ie: where an adult so lacked capacity that he was totally dependent on his parents, his place of ordinary residence was deemed to be coterminous with theirs) and accordingly determined that P was ordinarily resident in Cornwall. Cornwall sought judicial review of that decision. When it was upheld, Cornwall appealed.

The Court of Appeal held that where the vulnerable adult had been living in only one place for many years, that would almost inevitably compel the conclusion that it was his ordinary place of residence. It was not legitimate to avoid that common sense conclusion by the application of an artificial rule (ie: Vale) which gave no weight to the fact of residence at all. Application of the rule in Vale might produce the right answer where the parents were actually caring for their child themselves but the position was undoubtedly more complicated when they had delegated care of the incapacitous child to others.

In the context of severely incapacitated adults, there was much to be said for adopting a test of ordinary residence similar to the test of habitual residence adopted for dependent children, namely the place where the individual is integrated into a social and family environment. The place of ordinary residence might sometimes be with the parents even though he might spend more time with carers. However, he would have to have a pattern of regular living with the parents before it would be possible to describe that as his own place of ordinary residence.

Applying that test, the place where P had the closest social and family environment was South Gloucestershire: that was where he was integrated socially and emotionally with his foster parents and that was where he frequently saw his own parents. The Secretary of State had misdirected himself and his decision could not stand. There had only been one conclusion properly open to him, namely that P's place of ordinary residence was South Gloucestershire.
February 20, 2014 2:38 PM | Posted by Elsegood, Simon | Permalink

The House of Commons Health Committee has published a report on public expenditure on health and social care. Amongst other issues, it discussed the Competiton Commission's prohibition of the merger of Bournemouth and Poole hospitals. The Committee recommends "that the Government should examine the background to the Bournemouth and Poole proposal in order to ensure that unnecessary impediments to necessary change are removed." This blog supports this worthy aim, but it is important to remember that the reason the Competition Commission blocked the merger was that the Trusts had failed to persuade the Commission, advised by Monitor, that the merger would produce improvements for patients. The Committee's report can be found here.

In order to improve and quicken the competition authorities' decision making process for foundation trust mergers, Monitor has written to foundation trust and clinical commissioning group leaders inviting their reponses to Monitor's proposed new guidance on FT mergers. The deadline for responses is 28 February. David Bennett's letter can be found here.

February 17, 2014 12:34 PM | Posted by Richards, Tania | Permalink

NHS England has published the latest review of clinical commissioning groups (CCGs) with outstanding conditions and directions. Following the fourth conditions review, 12 more CCGs have demonstrated enough progress to discharge all of their authorisation conditions and can now operate unsupported. This now brings the total number of fully authorised CCGs to 192.

The latest review shows that 19 CCGs out of 211 still have to meet one or more of the 119 criteria set out in NHS England’s authorisation framework that CCGs must meet in order to be fully authorised. Of the 19 CCGs requiring support from NHS England, 3 CCGs (NHS Barnet, NHS Croydon and NHS Thurrock) have legal directions in place and will continue to receive formal, legally underpinned support from NHS England on such matters as planning, programme management, constitution and governance arrangements and leadership and organisational capacity including authorised officer appointment.

The next review by the CCG authorisation and assurance committee will in March 2014. Will all 19 CCGs receive the green light at next month’s post-authorisation conditions review? Watch this space.

February 17, 2014 12:28 PM | Posted by Jordan, Julie | Permalink
We have been advising clinical commissioning groups (CCGs) and their predecessor primary care trusts (PCTs) for many years about policies to cap expenditure on NHS Continuing Healthcare services commissioned both for patients in nursing homes and those receiving their care in their own homes. 

It has become generally accepted that, given that there is not a bottomless pit of money available to fund these services and that commissioners have to make the best use of the resources available to them and take into account equity of provision as well as need, offering a choice of affordable nursing home placements and setting a financial cap on the level of funding that can be spent on the provision of home care is not unreasonable and is therefore lawful.

A case reported in December 2013 concerning the funding of non-residential social care packages has provided support to this proposition.

In R (on the application of D) v Worcestershire County Council (2013), a local authority policy for determining the usual maximum expenditure for non-residential care packages for adults with assessed needs as equivalent to the expenditure on residential care was held to comply with the public sector equality duty under the Equality Act 2010 section 149.

It is worth noting that this council decided that the cap on non-residential care packages should, in the absence of exceptional circumstances, be the equivalent of the cost of residential care. Many former PCTs and CCGs have opted for a slightly softer approach in their NHS CHC policies, allowing an uplift of 10 per cent, or even 20 per cent, on the cost of nursing home care.

The case report also provides a useful reminder of how to comply with public consultation duties when introducing such a policy.
February 17, 2014 12:18 PM | Posted by Grey, Philip | Permalink

Commissioning support units (CSUs) will not be privatised when they are made independent in 2016 under new plans released by NHS England. The privatisation of CSUs was being considered but, due to the lack of clinical commissioning group (CCG) support, NHS England’s board report has ruled out the option of selling CSUs.

Another reason for rejecting a wholesale sell off of CSUs is “given the early stage in the development of the CSS market and the consequent uncertainty about the value of the CSUs, there would be a significant risk that the NHS would be giving away value to the private sector buyer”.

NHS England will consult nationally on four structural options for securing autonomy for CSUs to select from:

  • Social enterprise
  • Staff mutual
  • Customer controlled social enterprise; or
  • Joint venture

It adds that NHS England should prepare guidance for CSUs on the "process to autonomy", including a locally led public consultation when each unit is ready to submit its application to NHS England. For most CSUs, this is expected to be in late 2015 or early 2016.

NHS England is also creating a lead provider framework for CCGs to buy support services. A number of CSUs are looking to merge or work in ‘alliance’ in order to secure a place on the framework.

For more information, go to NHS England board meeting – 24 January 2014.

January 28, 2014 2:58 PM | Posted by Simon Elsegood | Permalink

Last month Monitor published its guidance on the NHS Procurement, Patient Choice and Competition Regulations 2013, which implement Section 75 of the Health and Social Care Act 2012. This statutory guidance is required by law and is intended to support commissioners of NHS services in understanding and operating in accordance with the rules around purchasing high quality services for patients. The guidance is available here: http://www.monitor-nhsft.gov.uk/home/news-events-publications/our-publications/browse-category/guidance-health-care-providers-and-co-16. Commissioners can now start to use Monitor's guidance to assess their obligations under these contentious regulations.

Following this, David Bennett, chief executive of Monitor has announced that Monitor will be focussing on the decisions CCGs are making about transforming community services contracts. Community services contracts were let by primary care trusts in 2010-11, typically to their former provider arms and usually on terms of between three and five years. Consequently a number of them are up for renewal. Monitor is concerned that very few CCGs have begun tendering the contracts and anecdotal evidence suggests many are looking to roll on the contracts or avoid tendering them all together.

Under the Regulations not every contract has to be but out to tender but there needs to be a proper process to decide whether or not to tender a contract. For example, the guidance states commissioners do not have to tender a contract if it is in the best interest of patients not to do so. CCGs must satisfy themselves the services currently being provided could not be improved and that there are not alternative providers that could deliver them. It may also be possible for CCGs to argue that an integrated system is better for patients and it would be difficult to create that through an open tender. However, CCGs will need to be able to demonstrate that these criteria have been met. Monitor is unlikely "to take a CCG's word for it".

January 14, 2014 4:42 PM | Posted by Chris Durham | Permalink

Monitor has now published its final guidance to help commissioners to comply with the NHS (Procurement, Patient Choice and Competition) (No 2) Regulations 2013 and to explain how Monitor will enforce compliance. This final guidance is also accompanied by a consultation response document in which Monitor summarises the feedback it received during the consultation process which ran following the publication of the draft guidance in May 2013.

As previously reported in this blog, we submitted a response to the consultation in conjunction with some of our CCG and CSU clients as well as a delegate from NHS England. In our view, this final guidance does not go much further than the draft guidance in providing commissioners with greater certainty as to how to comply with the regulations. Indeed Monitor notes in its consultation response document that “the regulations are largely principles based…” and “do not set out prescriptive requirements about the procedures that commissioners should follow and therefore we have not done so in our guidance”.

Monitor has responded to feedback by including in the guidance some additional examples addressing particular points raised during consultation such as how the regulations will apply to joint commissioning with a Local Authority or procuring services from a provider acting as a “prime contractor”. Monitor has also introduced a checklist approach to certain issues, for example, listing factors to consider in assessing whether commissioners are acting proportionately.

To advertise or not to advertise?

However, perhaps the main issue we have found to be causing most concerns for our clients is the question of when contract opportunities need to be advertised and when a formal tender process must be run. We highlighted in our response the uncertainty caused for commissioners by the suggestion in Regulation 5 that there is only one circumstance in which advertising was not required (where there is only one capable provider) and the draft guidance which suggested three such scenarios.

These three scenarios remain in the final guidance and in our view, Monitor has not fully dealt with these concerns. Its approach is to reiterate that it is for commissioners to decide the most appropriate procurement route and that there is no default process to follow.

Case Studies

Monitor has also published a final version of the hypothetical case studies. Our feedback to Monitor was that it would have been helpful for Monitor to indicate the position it would have taken on each scenario. Monitor has not done this but it has indicated that it intends to publish further supplementary materials at a later date.

In the meantime it appears that we will have to wait for settled cases in order to fully understand the practical application of these regulations and to understand just how much flexibility commissioners will have to determine how best to commission services for patients.

Our recommendations

Whilst the uncertainty continues, we recommend that commissioners keep a clear audit trail to demonstrate:

  • how they have met the overriding objectives and general requirements in the regulations; and
  • that they have considered the key questions set out on page 12 of the new substantive guidance.

For further information on Monitor’s final guidance, please contact or .

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