Local Competition Dispute Resolution Policy & Procedures

Transcription

1 Local Competition Dispute Resolution Policy & Procedures Version: 1 Approved by: Governing Body Date approved: 27 November 2013 Name of originator/author: Lynne Stuart, Company Secretary Name of responsible committee/individual: Governing Body Date issued: December 2013 Review date: One year Target audience: Document Status: Document Location: All CCG employees, providers, bidders Final SharePoint Document History Revisions: Date Page No. Revision Agreed by 1

2 1. Introduction This document sets out the local competition dispute resolution process (DRP) for dealing with perceived breaches of: the Public Contracts Regulations 2006; NHS (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013; and certain requirements relating to patient choice in the NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012; (together the Regulations ). Together these place requirements on commissioners to ensure that they adhere to good practice in relation to procurement, do not engage in anti-competitive behaviours, and protect and promote the right of patients to make choices about their healthcare. The NHS (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 were made pursuant to sections 75, 76, 77 and 304(9) and (10) of the Health and Social Care Act 2012 and contain a number of requirements that commissioners must comply with to ensure that they: adhere to good practice in relation to the procurement of health care services funded by the NHS; protect the rights of patients to make choices with respect to treatment or other health care services funded by the NHS; and do not engage in anti-competitive behaviour unless this is in the interests of NHS health care service users. The Procurement, Patient Choice and Competition Regulations replace previous administrative rules set out in the Principles and Rules for Cooperation and Competition (published 2010). 2. Role of Monitor Anyone may contact Monitor to raise their concerns if they think the CCG has breached, or is going to breach the Procurement, Patient Choice and Competition Regulations (No.2) 2013 or the relevant provisions of the Responsibilities and Standing Rules Regulations Monitor s briefing note Making a complaint about patient choice or competition to Monitor dated 1 April 2013 is attached as appendix 1. There is no requirement for complainants to attempt to resolve the matter locally with the CCG before approaching Monitor, however, Monitor have advised that it is considered good practice to have a local process and policy in place. Monitor would look at what attempts had been made locally to resolve a dispute. 2

3 Monitor is due to publish detailed enforcement guidance, following a period of consultation on draft guidance. The guidance is anticipated from November Objectives, principles and acceptance criteria of the dispute resolution process 3.1 Objectives for the local dispute resolution process The objectives of the Medway Clinical Commissioning Group dispute resolution process are as follows: To resolve disputes relating to the regulations fairly and consistently. To assure providers that the process is fair and transparent, enhancing willingness to participate in the market. To mitigate risks and protect the reputation of the NHS. To be compliant with acceptance criteria of the disputes resolution process. To prevent where possible legal challenge/expensive external referral processes. 3.2 Underpinning principles of the local dispute resolution process (DRP) The process in the CCG aims to adhere to the following principles: Transparency: Communicate the process via the CCG website. Enforce declarations of interest and manage associated conflicts. Objectivity: Base analysis and the decision on objective information and criteria. Maintain an audit trail. Proportionality: Resources used must be proportionate to the significance of the dispute. Non-discriminatory: The CCG panel must not favour one part of the system over another. Consistency: Ensure internal coherence and consistency. 3.3 Acceptance criteria for the CCG local DRP Panel The panel will only accept disputes that meet the following criteria: 3

4 The content of the dispute is covered by the Regulations. There is a full and frank disclosure of all relevant and applicable information. This does not preclude the panel from asking for further information as it requires. Furthermore, any individuals connected to the complaint are on hand to provide further evidence / testimony as required. No legal proceedings have commenced. The dispute is not trivial, vexatious or an abuse of the Local Competition Dispute Resolution Policy. There is adequate time for the panel to review the complaint appropriately, for example, if there are time-critical issues. 4. Local Competition Dispute Resolution Process The process is made up of four formal stages: Stage 1: Making the Complaint Any complaint must be submitted in writing to the CCG Chief Clinical Officer and copied to the Company Secretary at: NHS Medway Clinical Commissioning Group 50 Pembroke Court Chatham Maritime ME4 4EL or by to medway.ccg@nhs.net in which case the complaint must be headed for the attention of the Chief Clinical Officer and Company Secretary Competition Dispute Complaint. The letter shall contain a brief statement describing the nature and circumstances of the dispute and the outcome that the complainant seeks, together with any relevant supporting documentation. Stage 2: Triage Following the receipt of the complaint, the Company Secretary will make an assessment of the following factors: Whether the complaint is viable in the context of the acceptance criteria. Whether the complaint should be redirected to another organisation, such as NHS England or Monitor if the matter complained of is not within the remit or responsibility of the CCG. In this case, the complainant is informed of the course of action and redirected. 4

5 Whether the complaint is suitable for formal mediation before adjudication is considered. Where the complaint is in scope, not subject to redirection and not appropriate for mediation, it will be dealt with under the CCG Competition Dispute Resolution Process. Stage 3: The Panel The letter shall be passed to the relevant department within the CCG, who shall be required to submit a written response to the Company Secretary within 10 working days. At the same time the Company Secretary will convene a panel meeting to consider the submission from the complainant and the CCG response to the complaint. This panel meeting will take place within one calendar month of receipt of the response from the CCG. The panel will review the matter, giving their view on the nature of the dispute and a potential solution. If the complainant accepts this solution, the matter shall be considered resolved. The panel will not include anyone that has been involved in the matter complained of. If the panel are unable to reach a conclusion based on the written representations submitted to them, they may invite the complainant and a representative from the relevant CCG department to address them orally at a hearing. If a hearing is required, the parties will be notified of this within one week of the Panel considering the matter. Every effort will be made to arrange an oral hearing as quickly as possible but in any event within a further 21 days. Where exceptional circumstances exist, including but not limited to issues of patient safety or financial probity, the hearing may be convened on shorter notice. The panel shall comprise: A Lay Member or an Independent Member from the CCG Governing Body (who shall act as Chair). Any two of the following: Deputy Chief Finance Officer or Chief Finance Officer, Deputy Chief Nurse or Chief Nurse, Deputy Chief Operating Officer or Chief Operating Officer, Chief Clinical Officer, Company Secretary. Any other relevant CCG Advisor (as may be required by the panel, depending on the nature of the dispute). Where an oral hearing takes place, the Committee shall provide the parties with a written determination of the dispute within 21 days of the hearing. Stage 4: The decision Adjudication will generally be conducted using the pendulum principle. This means that the panel can only find wholly in favour of the CCG or the complainant. 5

6 If the panel is able to make a decision, the Chair of the panel will write to all parties notifying them of the decision, explaining the rationale and setting out the requirements for both sides for resolving the dispute. It will also notify the Governing Body of the dispute and the outcome at the next scheduled Governing Body meeting. 5. Appeals There is no process of appeal as the complainant may refer the matter to Monitor. 6

7 Appendix 1 Making a complaint about patient choice or competition to Monitor. Adobe Acrobat Document 7