The Independent Patient Choice and Procurement Panel (the Panel) has published its first case review as well as its acceptance and prioritisation criteria. This review is the first from the Panel set up to oversee commissioners’ provider selection decisions following the new Provider Selection Regime which came into force in January 2024.
The Panel’s review found that North East and North Cumbria (NENC) Integrated Care Board had used the wrong process to award a contract to an incumbent provider of online ADHD Service – a consultant led service accessed by GP referral.
The Panel’s report is essential reading for commissioners and procurement teams who are still coming to ‘grips with the new regime’. It provides a reminder of the Panel’s role and insight into the Panel’s review process when considering a referral and the need for commissioners to follow the correct award process. The IPCPP’s findings are only advisory and it is a matter for commissioners to decide how it responds to the Panel’s advice but it points out in its report that “A provider that is unhappy with the commissioner’s final decision…could choose to seek a judicial review of that decision.”
Background to the Panel review
NENC’s contract for its online ADHD service with Psychiatry UK Limited was due to expire on 31 March 2024. Psychiatry UK is the incumbent supplier of online services in North Cumbria. As a result, NENC decided to award a new contract to Psychiatry UK using Direct Award Process C, one of the five provider selection processes under the PSR Regulations. Having decided to use Direct Process C, NENC carried out an evaluation and published a notice of its intention to award a new 12-month contract to Psychiatry UK on 26 March 2024.
On 28 March 2024, prior to the expiry of the standstill period for the award of a new contract to Psychiatry UK, The Owl Centre Limited (TOC) made representations to NENC about its provider selection decision. In response, NENC carried out an internal review and wrote to TOC on 4 April 2024 confirming its intention to award a new contract to Psychiatry UK. Following receipt of NENC’s letter, TOC requested the Panel review NENC’s provider selection decision. The Panel accepted the decision on 10 April 2024 in line with its acceptance and prioritisation criteria.
Panel decision
A panel of three reviewed the case following information provided by TOC and NENC and meetings with the Panel. The Panel report sets out the representations made by the parties at pages 6-7.
Following the review, the Panel confirmed that commissioners must use Direct Award process B to contract for all services where patients have a legal right to choose their provider. The PSR Regulations do not provide commissioners with any discretion to choose an alternative provider selection process where patients have the right to choose their provider.
The Panel therefore concluded that any award by NENC to Psychiatry UK of a contract for the supply of online ADHD services under the Direct Award process C would be in breach of the PSR Regulations and that the only appropriate remedy is for it to abandon the current provider selection process.
Comment
The Panel’s report provides valuable insight for commissioners on many levels.
- The importance of maintaining clear and accurate records of all provider selection decisions
- Identify the correct award processes: if direct award A or B applies, these must be followed
- Be prepared to share information and attend meetings with the Panel in the event that decisions are challenged
- Remember that you may have the option of putting in place temporary contractual arrangements during a standstill period under para 14(3) of the PSR Regulations (the panel report refers to this option at para 21, p6)
According to the Health Service Journal article, NENC said it was “happy to accept the panel’s decision and will therefore award the contract to the current provider under direct award process B”. It said it had always intended to use process B to award any further contracts. “We had already informed The Owl Centre of our intention to engage with the market and this has not changed. We will be making further contact with The Owl Centre to discuss their interest in providing services over the coming days.”
The publication of the independent procurement and choice panel’s acceptance and prioritisation criteria under the PSR on 16 May 2024 explains the criteria that the Panel will use for deciding whether a request is eligible for review and how it will prioritise its work. It also confirms that it will stop the consideration of a matter where legal proceedings are under way.
The Panel has committed to carry out a review of its procedures in the next 3-6 months to “capture, and reflect in its procedures, any learning points from the initial cases reviewed by the Panel”.
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