brexit & nhs procurement in england
TRANSCRIPT
Scoping the impact of Brexit for NHS procurementDr Albert Sanchez-GraellsSenior Lecturer in Law
Brexit, Regulation and SocietyManReg, Manchester, 13 June 2017
13 June 2017
1Brexit & NHS Procurement
Agenda
• To try to identify potential impacts of Brexit on NHS procurement
• To disentangle domestic regulatory choices from EU requirements or restrictions
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Starting point, where were we before Brexit?
• NHS procurement has been characterised by a peculiar purchaser-provider split since the 1990s• Aim of creating an “NHS internal market” to generate
competition-based incentives to improvement in service delivery & cost management
• Ever evolving system (‘continuous revolution’ Maynard:2016) that has created increased scope for public-private competition (Odudu: 2012; Hunter: 2016)
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Starting point, where were we before Brexit?
• NHS procurement is primarily covered by two sets of domestic rules (+ large volume of soft law)• Public Contracts Regulations 2015 (grossly misunderstood)• Health and Social Care Act 2012 + NHS (Procurement, Patient
Choice & Competition) No 2 Regulations 2013
• Given its organisation as a (mixed) market, it is also subjected to a host of EU and UK competition rules• CA 1998, EA 2002 + TFEU, including State aid (for SGEIs)
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Could Brexit alter the situation?
• In structural terms, mostly not • “leaving the EU is an irrelevance when it comes to what many
regard as the creeping marketisation of the NHS” (Hunter: 2016; McKenna: 2016; Taylor: 2016)
• But it could indeed have negative operational impacts• If “NHS internal market” kept -> impact on private
competition in healthcare provision, incl. healthcare insurance
• Even if “NHS internal market” dismantled, acquisition of equipment & supplies could face barriers & costs (Hall: 2017)Brexit & NHS Procurement 5
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Brexit … one year after
• It is simply unavoidable to point out to existing uncertainty (Simpkin & Mossialos: 2017)• Brexit White Paper (Feb 2017)
• “We will not be seeking membership of the Single Market, but will pursue instead a new strategic partnership with the EU, including an ambitious and comprehensive Free Trade Agreement and a new customs agreement.”
• Great Repeal White Paper (March 2017)• Only one mention to procurement as example of ‘negative procedure’
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Brexit … one year after
• Economic effects of Brexit are starting to be felt (ONS)• Made worse by GE of 8 June 2017 (!?)
• Making any predictions about the stability of the Tory/DUP (minority/coalition) government is excessively risky
• This may trigger a crisis of government and alter on-going plans
• Also possible that ‘technical’ reforms carry on as planned
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What plans for the NHS post-Brexit?
• Conservative manifesto 2017• “A Britain in which the economy is strong to support
world-class public services, with the most ambitious programme of investment in people, technology and buildings the NHS has ever seen”
• “the most ambitious programme of investment in buildings and technology the NHS has ever seen”
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What plans for the NHS post-Brexit?
• Conservative manifesto 2017• “… we will consult and make the necessary legislative
changes. This includes the NHS’s own internal market, which can fail to act in the interests of patients and creates costly bureaucracy. So we will review [its] operation … and, in time for … the 2018 financial year, we will make non-legislative changes to remove barriers to the integration of care”
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(How) can this be achieved?
• Experimentation through STPs* that suppress the purchaser-provider split• Stevens (CEO NHS England): STPs “will for the first
time since 1990 effectively end the purchaser-provider split, bringing about integrated funding and delivery for a given geographical population”
• Is this possible and/or desirable? (Hare:2017)* sustainability and transformation plans, including accountable care organisations (ACOs)
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Would the NHS not have to comply with procurement rules at all?
• This is a highly unlikely scenario• Even if purchaser-provider was suppressed (thus, potentially
allowing for a derogation of the NHS Regs (No 2) 2013), the NHS would still need to buy from the market
• What would be the effect on supply chains?• This would be particularly relevant in terms of physical and IT
architecture• Given UK tradition: PPPs? Concessions?
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References• Hall, “Brexit: Its Impact on Procurement and Buying in the NHS?”, J of mHealth, Jan 19, 2017• Hare, “The end of the purchaser/provider split?”, NHS Confederation, March 14, 2017• Hunter, “Does the NHS still reside in a grey area for EU competition law?”,
UKiCE, April 6, 2016• Iacobucci, “STPs will end purchaser-provider split in parts of England, says NHS chief”,
BMJ 2017;356:j1125• Maynard & Dixon, “Should the NHS abolish the purchaser-provider split?”,
BMJ 2016;354:i3825• McKenna, “Five big issues for health and social care after the Brexit vote”,
King’s Fund, Jun 30, 2016• Odudu, “Competition law and the National Health Service”, Competition Bulletin, Oct 8, 2012• Simpkin & Mossialos, “Brexit and the NHS: Challenges, uncertainties and opportunities”,
(2017) 121 Health Policy 477-480• Taylor, “Brexit and NHS competition and procurement rules”, NHS Competition Regulation,
Jun 28, 2016Brexit & NHS Procurement 12
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Thank you for your attention
Be in [email protected]
www.howtocrackanut.com
@asanchezgraells
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