Monitor is currently undertaking a consultation on its draft guidance on the new NHS (Procurement, Patient Choice and Competition) (No.2) Regulations (SI 2013/500).

The regulations came into effect on 1 April 2013 amidst concerns that all NHS contracts would be subject to procurement. They require commissioners to adhere to rules to ensure good practice in relation to the procurement of NHS healthcare services and to protect patients’ rights to make choices regarding their NHS treatment. They also prohibit commissioners from engaging in anti-competitive behaviour unless this is in the interests of healthcare service users. It is for commissioners – the CCGs and NHS England – to decide what services to procure and how best to secure them in the interests of healthcare service users.

The regulations apply "alongside" the existing Public Contracts Regulations 2006 and there is some overlap between them. They provide a bespoke set of rules for the healthcare sector and a mechanism for Monitor, as a sector regulator, to investigate complaints and provide an alternative route to challenging decisions in the courts.

Monitor's draft guidance includes a series of hypothetical case studies that consider how the regulations might apply to a number of hypothetical scenarios. There are two guidance documents – the substantive guidance and enforcement guidance.

We will be submitting a response to Monitor setting out our views, based on queries we are receiving on how the regulations affect procurement decisions, areas where the guidance should clarify when EU procurement law may apply and the consequences which may arise if such considerations are ignored.

The consultation documents are available on Monitor's website.  The closing date for comments is 15 July 2013.

If you would like to discuss the new regulations or the guidance please contact Elizabeth Cooper, Emily Heard or a member of our Procurement or Commercial Healthcare teams.

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