Peers could force second redrafting of rules on tendering services.

The government could be forced to abandon controversial regulations that would open up large parts of the NHS in England to competition if peers decide the rules are unworkable and damaging to the NHS and patient care. Although the regulations, tabled under section 75 of the Health and Social Care Act, come into force on 1 April, they can still be challenged by peers, leading to a debate and vote in the House of Lords, up to 40 days later. Philip Hunt, the Labour Party’s spokesman on health in the House of Lords, will put down a “prayer” before the house on 27March calling for the regulations to be revoked. Because the house is in recess for the next three weeks, the debate and vote on the future of the regulations are not likely to take place until the week starting 24 April. Hunt admitted that winning the vote would be a “tough call” that would need the support of cross bench and Liberal Democrat peers. However, he was adamant that allowing the rules to proceed unchallenged would leave healthcare commissioners no room for manoeuvre and would destroy the NHS. “We had a very clear and explicit reassurance from ministers during the passage of the Health and Social Care Bill that clinical commissioning groups would not be forced to tender out [for] services. In my reading of the regulations I am very clear that CCGs will have to tender out most services, and that will lead to the marketisation of the NHS [and] the breaking up of services and will be hugely expensive,” Hunt told the BMJ. The government first published the regulations in February. But they were hurriedly rewritten after the BMA, the Labour Party, and a number of royal colleges argued that they contradicted previous assurances given by ministers that commissioners would not be forced to open NHS services to the market. Terence Stephenson, of the Academy of Medical Royal Colleges, warned that unless the regulations were amended, healthcare would be disrupted and hospital services damaged by time consuming and unnecessary tendering processes. However, the second draft of the legislation was criticised as being no better. In addition, the House of Lords Secondary Legislation Scrutiny Committee accused ministers of allowing “insufficient time” for proper scrutiny of the revised regulations, and the BMA’s General Practitioners Committee has passed a motion calling for the regulations to be withdrawn. David Lock, a barrister who specialises in NHS procurement and contracting, said that the slight change in wording to the regulations meant that commissioners would have to put out to the market all the services they wanted to arrange for their patients unless they were satisfied that the services can only be delivered by a “single provider.” In effect this meant that CCGs would be forced to run a tender exercise for all the services they wanted to buy or face legal action from “disappointed private providers.” Lock added, “Hence, the statement that competition will only be forced on the NHS when CCGs decide that running a competition is in the interests of patients is just wrong.” If peers vote for the prayer, the government will be forced to go back to the drawing board and rewrite the regulations a second time.