Commissioners and the 'any willing provider' policy: a taste of things to come?

Blog post

Published: 09/08/2011

For those interested in a glimpse of how the future might look if the Health and Social Care Bill makes it unscathed into law, the Cooperation and Competition Panel’s (CCP) report on the operation of ‘any willing provider’ is highly recommended.

Not quite summer beach reading material, it is nevertheless a fascinating insight into the tensions that are already present within the NHS and are likely to get worse in the next four years as NHS funding tightens even further in the context of a more competitive provider environment. 

The CCP’s report is a litany of infringements, dodges and liberties taken by PCT commissioners with respect to providing patients a free choice of hospital provider for non-urgent care, under the policy known as ‘any willing provider’.  These infringements by PCTs include attempting to direct patients away from certain providers on the grounds of cost, placing contractual caps on the number of patients that can be treated at individual hospitals, and introducing ‘minimum’ waiting times, (an apparently one-off effort to slow the flow of patients into secondary care).

This last detail was the one that captured the headlines, because – according to a footnote in the report – this seems to have been motivated by a desire to see whether patients faced with a longer wait would go private or die.

One of the most significant areas of debate relating to the Bill concerns the role of Monitor, specifically how Monitor will be able to balance the requirements of policing competition with the other objectives of the NHS, including, amongst other things, securing value for money for taxpayers and patients. 

This report by the CCP – which will be subsumed into Monitor – neatly illustrates why this role is going to be very hard indeed, as the tone of the report vacillates between irritation that the principles of choice and competition have been deviated from by commissioners (‘undermining the incentives to attract additional patients’) and empathy with the motivation of commissioners to get a grip on referrals into secondary care in order to balance their books (which means curbing the incentives of the acute sector as a whole to admit more patients).  

In fact, there has always been a tension between free patient choice and the ‘activity plans’ contained in the contracts between commissioners and acute providers.  As the CCP itself concedes, when resources are tight, there have to be ways for commissioners to stay in control of budgets.

So, in future commissioners will need to make sure that they restrict choice and competition in a transparent way, the legitimacy of which will be judged by the CCP on a case by case basis. Which raises some interesting questions, not least about the capacity of Monitor and the CCP to monitor this across several hundred clinical commissioning groups. 

This report also raises some questions about methods. The report is strikingly devoid of numbers or percentages to allow the reader to put the ‘many examples’ of poor behaviour into perspective. 

The footnotes reveal that providers were the source of many of the concerns about PCT behaviour (not surprisingly) but that none of their submissions have been published on the grounds that publication would ‘be likely to prejudice the commercial interests’ of those providers.  PCTs’ responses are published (representing about 25% of PCTs in England as whole) but the CCP reports that many did not respond to individual allegations. 

The CCP notes that these partial responses from a partial sample were nevertheless ‘sufficient’ to draw general conclusions and recommendations. Given that the conclusions of reports such as these carry considerable weight in policy terms, will Monitor and the CCP be subject to any minimum requirements about the robustness of their evidence base for their own published analyses in future?

Suggested citation

Thorlby R (2011) ‘Commissioners and the 'any willing provider' policy: a taste of things to come?’. Nuffield Trust comment, 9 August 2011.