The Health and Care Act 2022 (“the 2022 Act”) codified the move towards more integrated working across the health and care systems, so that all decisions taken by commissioners and providers are in the best interest of patients and service users.
As part of the necessary reforms to achieve its aim, the 2022 Act introduced a new regime for selecting providers of healthcare services in England: the Provider Selection Regime (“PSR”). Subject to parliamentary scrutiny and agreement, the PSR is expected to come into force on 1st January 2024, replacing both the Public Contract Regulations 2015 and National Health Service (Procurement, Patient Choice and Competition) Regulations 2013 when arranging healthcare services. It is important to note that no financial thresholds (£) will apply.
Who does this impact?
Organisations (termed ‘relevant authorities’) required to follow the PSR when arranging healthcare services are:
- NHS England
- Integrated Care Boards
- NHS trusts and foundation trusts
- Local authorities or combined authorities
What’s within the scope of the new regime?
Within the scope of the PSR are:
- healthcare services arranged by the NHS e.g., hospital, community, mental health, primary health care services.
- public health services arranged by local authorities e.g., substance use, sexual and reproductive health, and health visits.
Outside of the scope of the PSR are:
- goods e.g., medicines, medical equipment.
- social care services.
- non-healthcare services or health-adjacent services e.g., capital works, business consultancy.
Decision Making Processes
Relevant authorities must identify which provider selection process is applicable for the health care service they are arranging. The processes are:
A standstill period applies to the Direct Award Process C, the Most Suitable Provider Process, and the Competitive Process.
There are five key criteria that must be considered when assessing providers and none should be discounted. However, the relative importance of the criteria is not pre-determined and there is no prescribed hierarchy or weighting for each criterion. These are:
Transparency notices must be published when contracts are awarded and in some situations before contract awards are made. Find a Tender Service (FTS) Notices are required for all decision-making processes as detailed below:
Furthermore, relevant authorities must keep detailed evidence of their decisions and decision-making processes, which they may be required to share with providers (if they receive a representation). An annual summary should also be published, which details how many contracts were awarded using the various provider selection processes.
NHSE Guidance & Process Maps
All the relevant NHS England Guidance and Process Maps for each of the stages can be found within the following link: https://www.england.nhs.uk/publication/provider-selection-regime-toolkit-products/.
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