Health Bill could open up the NHS to EU competition law

Analysis: Challenges of EU competition law for general practice commissioning

Healthcare delivery in England could be bound by EU competition law where bidders from across the European Union have the same rights as local NHS providers, according to a paper on bmj.com by Rupert Dunbar-Rees, general practitioner and healthcare management adviser, and Robert McGough at  Beachcroft LLP.

The authors question whether the government has fully considered the impacts of the Health and Social Care Bill and in particular the 'Any Willing Provider' (AWP) proviso.

They say that, while parallels have been drawn between the AWP model GP Fundholding and Total Purchasing Pilots of the 1990s, the reality is that "the regulatory landscape has changed beyond all measure since then".

The authors argue that "the National Health Service has moved from a position 20 years ago, where most healthcare spending was essentially the state purchasing care itself" and that now it is possible that EU competition laws would apply to the commissioning process.

This could mean, say the authors, that GP consortia would have to advertise all tenders in the EU's official journal and competitively tender for those services in an open and transparent way.

The consequences for consortia not abiding by EU rules are very serious, explain the authors. A consortium who fails to tender a service which should have been tendered could find a contract being cancelled by a court. It could also be fined and be forced to pay damages. Additionally the contractor who was awarded the contract might then sue for breach of contract by the consortium.

While the vast majority of secondary care services make them exempt from some of the detailed requirements of the advertisement and tendering processes, the case law supports a legal requirement to follow the general EU principles, say the authors.

And despite Department of Health assurances that there may be circumstances ('service integration' and 'continuity of care') where GP commissioners would be able to only offer one contractor - the authors say it is not clear if there is legal basis for these circumstances as they do not fall within current exemptions under EU law.

The authors argue that "procurement skills will remain be a key requirement for commissioners" and that GP consortia will need to be exceptionally careful when purchasing services to ensure that procurement and conflict issues are dealt with effectively.

Dunbar-Rees and McGough conclude that "the technical argument reinforces the logical argument that the reforms further open up the NHS to EU competition law".
Click here to view the full paper: ttp://www.bmj.com/cgi/doi/10.1136/bmj.d2071