NHS England announces Provider Selection Regime Regulations to be published imminently

12th October 2023

NHS England have announced that the Department for Health and Social Care will put the long-awaited draft Provider Selection Regime Regulations, before Parliament on 19 October 2023. Upon becoming law, the Provider Selection Regime Regulations will lead to a big procurement shake up for NHS and public health services. It is currently intended that the Provider Selection Regime will come into force on 1st January 2024.

What are the PSR Regulations?

The PSR Regulations will be a new set of rules relating to the arrangement and procurement of healthcare services by relevant authorities in England, including NHS England, NHS Trusts and Foundation Trusts, integrated care boards and local authorities. The procurement of goods, including medicines, and non-healthcare services is not within the scope of these new rules.

What is the purpose of the PSR Regulations?

The PSR aims to:

  • increase flexibility and transparency in the procurement of healthcare services, and
  • support greater integration and the establishment of stable collaborations.

How will the PSR Regulations be introduced?

The PSR will be introduced under the Health and Care Act 2022. Once in force, the Regulations will replace the current framework for the procurement of healthcare services, which is currently the Public Contracts Regulations 2015 and the Procurement, Patient Choice and Competition Regulations 2013 (and would otherwise be captured by the Procurement Act in due course).

It is important to note that the PSR Regulations will be in draft form only and shall not come into force until 1st January 2024 at the earliest. Until then, organisations should not rely on the possibility of the PSR coming into effect and should continue to follow the current framework in relation to the procurement of healthcare services.

When will the PSR Regulations come into force?

It is still (relatively) early days and the draft PSR Regulations will be subject to parliamentary scrutiny. Whilst DHSC intend for the PSR Regulations to come into force on 1st January 2024, lessons learnt from the Procurement Bill’s longer than expected journey through Parliament means that it is not guaranteed that the Parliamentary process will be completed in good time for that date (albeit, being secondary legislation, the PSR Regulations will not be subject to as much scrutiny as the Procurement Bill). Watch this space!

Welsh Government Proposals

In Wales, the Welsh Government have published draft legislation in the form of the Health Service Procurement (Wales) Bill which, when enacted, will insert a new section 10A into the NHS Wales Act 2006 and a new provision into the Procurement Act 2023. This will allow the Welsh Government to implement a regime for procurement of health services (essentially an equivalent to the PSR Regulations in Wales) by disapplying the Procurement Act to health services in Wales.

The Bill was debated by the Senedd on Tuesday 10th October 2023 and will now continue to stage 4 where the Senedd will vote on the final form Bill. Once this Bill becomes law, Welsh Government will need to introduce and pass secondary legislation (similar to the PSR Regulations) to introduce a regime in Wales.

If you require advice on any aspect of healthcare procurement in England or Wales, please contact our specialist healthcare lawyers.

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