Regulating the NHS market in England

The government’s draft regulations on procurement, patient choice, and competition, published in February, have opened up old wounds in the debate about NHS reform. The regulations set out in detail how commissioners should procure NHS services under section 75 of the Health and Social Care Act 2012. The stated aim of the regulations, which will be enforced by Monitor as the economic regulator, is to ensure that the NHS Commissioning Board and clinical commissioning groups act to protect patients’ rights and to prevent anti-competitive behaviour.1

The government claims that the regulations follow from commitments given during the passage of the 2012 act and are consistent with the “Principles and rules for cooperation and competition” put in place by the previous administration. Its critics contend that they go much further and represent a major extension of market principles in the NHS. In this they are supported by legal advice, which argues that commissioners of NHS services will be expected to make greater use of tendering, with competition becoming “the norm for placing NHS contracts.”2

The government’s critics comprise general practitioner leaders who are worried that clinical commissioning groups will have to use tendering to procure all services; Liberal Democrat MPs and peers who …