Conflicts of interest in healthcare: NHS procurement rules must be clarified
This research takes stock of recent developments in NHS governance and explores ways to clarify procurement rules.
About the research
On June 23, 2016, the UK voted by a margin of 52% to 48% to leave the European Union (EU). In the wake of the referendum result, much attention has focused on Article 50. Article 50 was introduced by the Treaty of Lisbon in 2009. It is intended to provide for the orderly withdrawal of States from the EU. It has never been invoked. Its meaning is opaque.
Dr Phil Syrpis’ research highlights the key EU law questions surrounding the operation of Article 50 and underlines the fact that many of the questions relating to the process of withdrawal from the EU are unresolved. Dr Syrpis claims that the provision should be interpreted in a way which ensures that the UK is best able to maintain a working relationship with the EU after withdrawal, and which enables a settlement to be reached which as far as possible protects the interests of citizens of the EU. This briefing examines the uncertainty inherent in the Article 50 process, which relates to both the negotiation process and the content and scope of any withdrawal agreement. Clarification of the EU law questions is essential before the Article 50 trigger is pulled.
- NHS Trusts and CCGs can only avoid the existing legal risks by designing and implementing robust procedures for the identification, disclosure, documentation, and monitoring of conflicts of interest.
- There is a clear need for clarification, and possibly consolidation, of the procurement rules applicable to the healthcare sector, which would require a revision of the NHS (Procurement, Patient Choice and Competition) Regulations 2013 to coordinate their content with the Public Contracts Regulations 2015.
- A revision of the existing remedies system is necessary. Beyond the activity of NHS Improvement, the Government should explore alternative ways of providing effective independent administrative review e.g. through the creation of a procurement appeals tribunal, which could also have jurisdiction not only for the healthcare sector, but for procurement in all other sectors.
- NHS Trusts and CCGs should prioritise the effective management of conflicts of interest. The revised statutory guidance, released in June, should lead to a further revision of NHS Trusts’ and CCG’s commissioning and procurement structures and procedures.
- Alternative ways of incorporating clinical expertise and patients’ input into the commissioning and procurement processes should be explored by NHS Trusts and CCGs, such as the creation of regional or national pools of experts available to NHS Trusts and CCGs.
The NHS (Procurement, Patient Choice and Competition) Regulations 2013 define conflicts of interest (Regulation 6) in terms that diverge from the definition of conflicts of interest in the Public Contracts Regulations 2015 (Regulation 24). Since 18 April 2016, both sets of rules apply concurrently to commissioning and procurement decisions taken by NHS Trusts and Clinical Commissioning Groups (CCGs). NHS England has issued new statutory guidance in June 2016, but the current scenario still creates significant legal uncertainty and legal risks for NHS Trusts and CCGs.
If their decisions are affected by a conflict of interest, NHS Trusts and CCG decisions can be challenged in different settings. Breaches of the 2013 regulations can be brought before NHS Improvement (the sector regulator, previously Monitor). However, they can also be brought before the High Court, as can breaches of the 2015 regulations .The past nine months have seen NHS Improvement and the English courts making potentially divergent decisions on a number of cases concerning conflicts of interest.
Sanchez-Graells, Albert, Monitor and the Competition and Markets Authority (November 20, 2014).
Policy Briefing 31: 2016
Contact the researchers
Dr Albert Sanchez-Graells,
Senior Lecturer in Law,
University of Bristol Law School:
Dr Albert Sanchez-Graells, University of Bristol