News / Competition rules outlined by Monitor

Monitor has pledged to consider the financial impact of enforcement action it takes against commissioners under its new procurement, choice and competition powers.

The regulator issued two consultation documents in May, setting out the requirements of choice and competition regulations and the factors it will take into account when assessing complaints about breaches, as well as proposals for enforcement. The regulations apply to clinical commissioning groups and NHS England.

Monitor said commissioners must adhere to good practice in relation to procurement, protect patients’ right to choice and not engage in anti-competitive behaviour unless this is in the interests of service users.

Commissioners may fall foul of the regulations if, for example, financial criteria against which bids will be judged are deemed disproportionate. This could be because they go beyond what is necessary to secure the stability of the service or because potential providers are required to undergo financial due diligence not commensurate with the services to be provided.

The draft enforcement guidance said Monitor would consider not only the costs it is likely to incur in an investigation, but also the potential costs for the commissioner and other providers. ‘We intend to pay close attention to whether the burden our actions would impose is in proportion to the scale of the problem they aim to correct,’ it added.

Monitor may choose to act informally, if appropriate, such as providing guidance or a letter warning that it will take formal action if the commissioner does not address its concerns.

Formal action could include declaring an arrangement ineffective, or requiring commissioners to implement measures to prevent or remedy breaches or mitigate their effects. This could mean varying or withdrawing an invitation to tender for providing healthcare services and varying an arrangement for service provision. Consultation closes on 15 July.