The solicitor representing protest group Stroud Against the Cuts has written to NHS Gloucestershire warning that the Primary Care Trust is misinterpreting the law by insisting that it must tender the county's community health services even for NHS options.
Law firm Leigh Day & Co warns that the case could have "far-reaching implications for the whole of the NHS".
Stroud Against the Cuts (SATC) originally took issue last year with NHS Gloucestershire PCT’s decision to award primary health services to a community interest company without either tendering or looking properly at in-house NHS options. The case was settled out of court in February, with the PCT promising it would look at other options.
However, another side to the case has emerged, after NHS Gloucestershire wrote to the Mayor of Stroud John Marjoram and trade union Unite the Union to counter an earlier briefing note prepared by SATC. The note had stated that “a contract with another NHS body could be pursued without the need for a full competitive tender”, but the PCT wrote back to refute this, saying that such a move would be in breach of EU procurement law.
But in the latest development, Leigh Day & Co says in a letter sent last week that, in fact, a deal can be made between a PCT and an NHS Trust without the need for a tendering process, because this type of arrangement does not fall under the definition of a ‘contract’ according to the government’s Public Contract Relations 2006 legislation. So by not considering this option, NHS Gloucestershire is breaking the terms of the out-of-court settlement.
“It is true that Gloucestershire behave unlawfully if they outsource services outside of a local NHS provider without tendering,” James Beecher, chair of SATC, told civilsociety.co.uk. “However, if they keep these services within the NHS, then they don’t have to tender at all.”
SATC is pushing for this latter eventuality and does not want an NHS Trust to be put into a competitive tendering process, as the group fears it may not win against the financial muscle of its rivals from the private sector.
Leigh Day & Co also says in its letter that “the PCT is perfectly aware that both the staff and the public want these services to remain within the NHS, and that can only be assured if an arrangement is agreed with an NHS Trust”.
Ruling out such a move would, the letter claims, be going against paragraph three of the open schedule under which the last judicial review was settled, which stated “the PCT will take reasonable steps to provide a proper level of staff and public engagement during the process”.
Implications for whole NHS
The letter further states that if NHS Gloucestershire refuses to consider giving local services to the NHS Trust on the grounds that it considers doing so to be illegal, then this would have “far-reaching implications for the whole of the NHS”. It would mean that the "vast majority" of other PCTs across the country who have done just that would have been acting unlawfully.
"It seems to us far more likely to be the case that the error is yours and all the other PCTs... have been acting lawfully," Leigh Day & Co’s letter tells NHS Gloucestershire.
“We were always aware that we might end up in court again," added Beecher. "But were hoping that NHS Gloucestershire would keep their word. Our lawyers gave the PCT seven days to reply, so will be pursuing the matter this week."