McDermott Comment I Reorganisation of the NHS


Sharon Lamb, health partner at law firm McDermott Will & Emery, said:

On timing: “There is no question that the reforms are a significant change to the NHS “internal market” and will mean TUPE transfers of NHS managers and new NHS bodies (Integrated Care System bodies) being set up. A change of this type is always a huge distraction to NHS commissioning management and comes at a time when many NHS hospitals are still struggling to cope with COVID pressures. But many of these arrangements are already being implemented with the merger of commissioning bodies (CCGs) and shadow (informal) integrated care system arrangements in place.”

On changes to procurement: “The changes anticipate a significant reduction in NHS procurement activity but this is mainly likely to affect privately provided NHS services and it is worth noting that the vast majority of NHS provided services are not tendered.  There was already significant flexibility in NHS procurement rules allowing contracts to be awarded without a competition and without following complex and detailed procedures. But there has been a culture of long and complex procurements even when this wasn’t necessary. The procurement changes envisage simpler, more discretionary procurements and there is more emphasis on “value”. Coupled with changes to NHS pricing, there may be concerns that when competition is used, it is a mechanism for competition on price – leading to a race to the bottom. Providers will want confidence that the extra discretion is not just used to drive down price which might impact service quality.”

On impact on the private sector: “The 2012 rules said that private sector NHS providers and NHS statutory providers were to be treated on a level playing field and given the same opportunities to bid and provide NHS services. In practice, there has not been a significant increase in privately provided NHS activity but there has been an increase in the bureaucracy and award of those contracts. It is worth remembering that private providers, which includes GPs, dental providers, mental health services play a crucial role in the delivery of healthcare and especially in allowing patients options and choice in their care. The reforms refer to a “bespoke health care services provider selection regime” – in practice this is a good idea and will allow for high quality providers to be accredited and for patients to choose where and who provides their care.”