We’ve had interest from commissioners in our recent investigation into the commissioning of community services by Northern, Eastern and Western Devon clinical commissioning group (NEW Devon CCG).
The CCG is working to redesign complex adult community services, and we’d received a complaint that they were not doing this in a way that is consistent with the Procurement, Patient Choice and Competition Regulations. Following investigation, we found that the CCG’s process satisfied the regulations.
While our investigation focused on a particular process to select a provider in one locality, there are some general lessons for commissioners that can be drawn from this case.
The regulations allow commissioners to design their own competitive process to select providers and make the best decision for patients
When considering how to make decisions that meet regulatory obligations, a good starting point for commissioners is to think through questions that include whether the process is:
- proportionate
- transparent
- reflects the value, complexity and clinical risk associated with the services in question
See our guidance summary for more.
In this case, NEW Devon CCG had set out what they wanted to change and improve for patients. They gathered proposals from providers that described different ways to deliver this goal, and tested these in order to select the best care model.
We found that their process was designed to get a good outcome for patients, and was therefore consistent with the regulations.
This case demonstrates that the regulations do not impose a specific process to select providers.
Commissioners need to demonstrate how the process they use will select the provider that meets commissioning objectives in the best way for patients
This case highlights the need for commissioners to be very clear about what information they need to make good decisions. Commissioners must then demonstrate how their process enables them to gather this information and test quality, improvement and value for money to select the right provider from available options.
We found that it was reasonable in the circumstances of this case for the CCG to seek provider proposals based on:
- the commissioning objectives of the process
- information supplied by the CCG as a result of their work
Seeking provider proposals was an adjustment the CCG made to their process. So the case also demonstrates that CCGs are able to adapt their process in response to circumstances that arise along the way. For example, not having sufficient information to make a decision, or new evidence emerging about particular care models.
As long as commissioners approach any change of process in a transparent, proportionate and non-discriminatory way it is likely to be consistent with the regulations.
In order to satisfy themselves that they are meeting commissioning objectives, NEW Devon CCG is now undertaking further work on value for money before awarding a contract.
Managing conflicts of interest helps avoid problems
One aspect of the complaint we investigated was that the CCG had not managed conflicts of interest appropriately.
Commissioners should be open about the conflicts and potential conflicts of individuals involved in the process. Commissioners should then set out how these are being addressed. This may include consideration of who can make decisions, and how local expertise is gathered and used.
We discuss conflicts of interest in more detail in an earlier blog post, and in our substantive guidance.
Good record keeping enables confidence in commissioners' process
Good record keeping serves 2 functions – it enables:
- commissioners to satisfy themselves that they are working within the rules and delivering good outcomes for patients
- external scrutiny of decisions to make sure that patients and taxpayers are benefiting
In this case, we investigated whether the CCG had treated different providers equally and without bias, by looking at records of their communications with providers.
We recommend that commissioners make sure they record communications with providers during the decision-making process. Commissioners should have in place a clear system for recording, storing and sharing (where appropriate) information about their process.
Are you designing a process to select a provider/providers for a reconfiguration or other commissioning objective in your area? If so, contact us for advice about things to consider from a regulatory perspective.