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Jean-Yves Gilg

Editor, Solicitors Journal

New regulations could lead to greater private sector involvement in NHS

New regulations could lead to greater private sector involvement in NHS


Privatisation of the NHS is both a legal and political question, says procurement lawyer

New procurement regulations will likely lead to greater private sector participation in the delivery of health services, according to lawyers at Bevan Brittan.

The regulations, which are based on EU directives, mean that any health services contract worth more than £589,148 must soon be put out to public tender, subject to certain exceptions.

UK regulations have not previously stated that health service contracts had to be publicly tendered.

However, from 18 April, health procurement will come into line with other public contracts under the Public Contracts Regulations 2015.

Emily Heard, a procurement partner at Bevan Brittan, suggested it was likely that more health service contracts would now be put out to tender than ever before.

'This opening of the market presents an opportunity for private players to win more business with the NHS and public health services,' she said.

'There is of course nothing to stop bids from public sector organisations, like NHS Trusts, and high quality bids that represent good value for money are likely to be the successful ones, wherever they come from, but the point is that the opportunity should be one which is advertised.'

Heard explained that some clinical commissioning groups (CCGs) and trusts have used procurement as a means of driving innovation and efficiency.

'As from 18 April commissioners will have to think very carefully about the risks of not tendering health services,' she said.

'Running a procurement takes management time and effort, not to mention cost; the recent reports into the UnitingCare contract and process illustrate the potential problems that can arise.

'The upside is that competition can equate to improvement, and be a means of securing better value for money for public services.'

The implementation of the EU's public contracts regulations comes against a backdrop of increasing fear over a privatisation of the health service, striking junior doctors, and a Brexit debate that is just starting to heat up.

'The "privatisation of the NHS" is often raised as a political question,' added Heard. 'Now, it's a legal question as well.'