As part of English reforms contained within the Health and Care Bill, which is currently progressing through parliament, the Department of Health and Social Care (DH) is proposing to revoke the statutory requirement on NHS England and NHS Improvement (NHSE&I) and clinical commissioning groups to follow 2013 procurement rules for the commissioning of certain healthcare services. 

When these changes were proposed in the white paper that preceded the Health and Care Bill, they were generally well-received across the healthcare sector. The 2013 procurement rules were not particularly popular, as it was felt that they were too rigid and placed too much emphasis on competitive tendering.

The 2013 procurement rules explicitly did not apply to the provision of pharmaceutical services, however, so pharmacy owners were largely unaffected by them. 

 

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The bill in its current form would repeal the statutory provisions under which the 2013 procurement rules were made and states that “regulations may make provision in relation to the procurement by relevant authorities of healthcare services”.  In the context of the bill, “healthcare services” would include pharmaceutical services and, in theory at least, new procurement rules could apply to community pharmacy services. 

It was therefore a waiting game for pharmacies to see whether the proposed new procurement regime could apply to pharmaceutical services. The bill itself contains little information about what was planned for healthcare services procurement: in common with most primary legislation, the bill enables new rules to be introduced for healthcare service procurement, but did not state what those rules would be.

 

“Provider Selection Regime”

 

The DH has now launched a consultation on the new “Provider Selection Regime”, which will replace the 2013 procurement rules if or when the bill is enacted. The consultation does not include detailed regulations on the new regime itself, but sets out some broad principles and invites comment.

In common with the 2013 procurement, the DH proposes that the “Provider Selection Regime” will not apply to community pharmaceutical services, which will be a relief to community pharmacy owners. However, that does not necessarily mean that community pharmacies will be entirely unaffected by the new regime. 

 

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For the purposes of NHS legislation, “pharmaceutical services” are limited to those provided as essential pharmaceutical services under the pharmacy terms of service, such as dispensing medicines, or those that are commissioned directly by NHSE&I: advanced services such as the Community Pharmacist Consultation Service or flu vaccinations.

The “Provider Selection Regime”, as currently proposed, would apply to other services that community pharmacies might provide. For example, locally commissioned pharmaceutical services, such as those commissioned by local healthcare providers or health and wellbeing boards – anticoagulant services, for example – or local enhanced services, such as COVID-19 vaccinations.

With the obvious exception of the COVID-19 vaccination service, local enhanced/locally commissioned services have not tended to play a large part in the services offered by most community pharmacies. Even where those services may, in the future, be commissioned under the “Provider Selection Regime”, it is therefore not anticipated that the new regime would have a significant impact on the services that community pharmacies currently provide.

 

Future opportunities

 

However, the regime may present additional opportunities for community pharmacies to participate in locally commissioned services. The DH states that the new regime aims to “make it easier to integrate services and enhance collaboration, and to remove the rigidity associated with the current procurement rules and the related bureaucracy and cost”.

The “Provider Selection Regime” will set out key criteria that may be considered when making decisions about selection under the regime. Community pharmacies should be well-placed to benefit from these new criteria; for example, being able to demonstrate that they can offer “quality and innovation”, “value”, “access”, “choice” and “social value”.

 

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We still have some way to go until the new regime comes into force: the bill must be passed and become the Health and Care Act and the regime proposals must be put into regulations. Only at that stage will we have full details of the new regime. 

Once those hurdles are overcome, it will then be over to community pharmacies to engage with local healthcare service commissioners – including the new integrated care boards – to see if the new regime presents real opportunities for pharmacies to demonstrate their unique role within communities.  For the moment, the new regime looks like more of an opportunity than a threat to community pharmacy in England.

The consultation closes on March 28, 2022.

Noel Wardle is a solicitor and partner at Temple Bright LLP, specialising in pharmacy law