The purpose of this toolkit is to assist CCGs in their decision-making process for the commissioning of new locally commissioned out of hospital services.
This toolkit has been developed by the BAD and its stakeholders to support anyone involved in commissioning and planning services for Dermatology Services in the UK. It is designed to help review existing services, understand local needs and plan future provision. The toolkit takes into consideration that there are different commissioning and funding models across the UK.
It serves as a reference point when considering the appropriate procurement options for these services in the light of changes to the law since the Health and Social Care Act 2012 came into force. Commissioners need to balance the requirements of complying with the law and reducing legal challenge with the need to make effective and integrated commissioning decisions that are right for their local population.
There are many lessons still to learn from repeated failure to redesign safe and cost-effective dermatology services across England. These briefings are designed to be read by members of the CCG to ensure that everyone has at least a basic understanding of the CCG’s responsibilities in relation to procurement of healthcare (clinical) services.
Over the past decade, the role of commissioning has become increasingly important to the health system in England. Commissioning is a complex process with responsibilities that include assessing population needs, prioritising health outcomes, specifying requirements, securing services and monitoring quality of services. Procurement is the process of securing, or purchasing, those services. Public sector bodies are subject to various rules and regulations governing procurement.
The Health and Social Care Act 2012 (“the Act”) brought in a new commissioning environment in which competition, patient choice and integration of services play a more prominent role. At the same time, commissioning organisations were restructured, creating Clinical Commissioning Groups CCGs and NHS England. Most of the NHS commissioning budget is now managed by clinical commissioning groups (CCGs).
Nationally, NHS England commissions specialised services, primary care, some public health services, offender healthcare and some services for the armed forces. It has four regional teams but is one single organisation operating to a common model with one board.
New regulations have been made that set out how the NHS should make decisions on procuring healthcare services, and inform the process CCGs should take to procure those services so as to reduce the risks of legal challenge. The NHS (Procurement, Patient Choice and Competition) (No.2) Regulations 2013 (PPCCR) form part of the procurement landscape alongside the Public Contracts Regulations (PCR 2015) for CCGs and NHS England when procuring health and care services.
A new light touch regime (LTR) for the procurement of clinical services came into force on 18 April 2016 replaced existing PCR 2015‘Part B’ rules. Under the LTR commissioners have the freedom to determine the procurement procedure to use when awarding a contract provided that they satisfy the principle of transparency and equal treatment of providers.
However, national guidance does not introduce any general policy requirement that all NHS services should be subject to competitive tendering. The policy is to create an NHS that is much more responsive to patients and achieves better quality outcomes. The first step is for a CCG commissioner to assess whether a new healthcare service is required. Where there is a contract for healthcare services already in place, they may be able to use the variation or change processes in that contract to secure incremental change to service provision.
Consideration should be given to any contractual requirements such as the need to provide notice to terminate a contract or any penalties due should the contract be terminated earlier. It should be noted that in some cases the CCG is required to provide notice that a contract will not continue beyond the Care must be taken to ensure the CCG’s Tendering and Contract Procedure contained within the Standing Financial Instructions and the European Union Procurement Regulations complied with re-tendering services or procuring new services.
Any decision to conduct a procurement process for a healthcare service will be made, if at all, after the CCG has been through a number of ‘planning’ and ‘service redesign’ activities as demonstrated in Figure 1.
Figure 1 (source): Document based on the National Association of Primary Care: The Essential Guide to GP Commissioning
The commissioner is solely responsible for carrying out the procurement, including the agreement of the award criteria, selection process and evaluation, and award of the contract.
There are certain statutory requirements for public consultation where significant service change is proposed. This includes notifying the County Council’s Overview and Scrutiny Committee. The committee may determine to review the proposal. These requirements must be followed, and the details of the consultation process and outcomes documented on the evidence sheet. Even where consultation is not a statutory requirement, consideration should be given to consulting service users, stakeholders and staff.
It is important to remember that, in the midst of often complicated data collection and review activities, the basic task of a commissioning strategy is to produce a clear, well-argued and comprehensive plan for service design and development.
Effective procurement is an essential component of commissioning improved services and outcomes for local patients and communities and ensuring value for money. It is a matter of law. As a public body, a CCG will need to adhere to legislation that governs the award of contracts by public bodies and regulations to procurement.
A decision to conduct a procurement process for healthcare services will be made, if at all, after you have been through the planning stages of commissioning (defining service user need drawing up a service specification, contractual terms and provider engagement).
The previous, iterative, stages will identify whether new service models or significant additional capacity are needed, how services might be configured and whether there is more than one potential provider able to deliver the service(s). This will inform a decision on whether to use an existing contract or a procurement process to secure the provision of the services.
Where you decide to conduct a procurement, you will also need to decide whether to conduct a competitive tender (or, in some cases, single tender) to determine the most suitable provider, or whether to allow patients to choose from any qualified provider.
Advertising of procurement and notifying contract award: once a decision to procure services has been made, it is important to signal to providers that there will be an opportunity open to them. Accordingly, the relevant information should be notified to providers via NHS Supply2Health and (where appropriate) the Official Journal of the European Union (OJEU) as a minimum.
This information is covered in depth in the BAD Tendering Guidance for Dermatology Services.