Orthodontic procurement legal challenge: What you need to know
We have implemented a legal challenge against NHS England's use of a 'Dynamic Purchasing System' (DPS) in its tendering of £1/2 billion of orthodontic services, initially across the South of England.
The DPS is an electronic-only procurement system, which in theory is meant to simplify commissioning. However, we are deeply concerned that the way the process is being managed puts small providers at a significant disadvantage and has failed to engage clinicians or patients.
As of 3 October 2017, our legal challenge has been suspended whilst NHS England undertakes preparatory work for the procurement of orthodontic services.
In the interim, NHS England has announced that existing providers, whose orthodontic contracts were due to expire next spring, will have their contracts extended until March 2019.
I'm not an orthodontist, does this affect me?
We know that NHS England plans to use the DPS system in other orthodontic tendering processes, and it is highly likely that it will be rolled out to other dental commissioning in future.
We are challenging NHS England now to make sure that, if the DPS approach is to be used, it is fair to all and allows for proper consultation. Such consultation is hugely important as there is a realistic prospect that services will change as a result of tenders, in particular in terms of where provision is located.
What are the issues being challenged?
Our legal challenge covers 4 key areas:
1. Unfavourable treatment to small providers
The DPS selection process is designed to evaluate the capacity, capability, experience and eligibility of potential contractors to provide orthodontic services.
Whilst the rules adopted by NHS England for this procurement process apply to all providers, the form adopted makes it significantly more difficult for small independent contractors to take part and secure contracts under the process than larger contractors. In particular this is because:
- The financial standing criteria are significantly weighted to favour larger contractors.
- NHS England has not supplied any detail regarding the lots that will be tendered via the DPS. As a result, providers cannot assess whether it would be feasible for them to bid, or start any necessary work that will be involved in forming consortia;
- When the size of proposed contracts are announced, unless they are set at the level of an individual practice (which NHS England has informally indicated is not the intention), then small providers will be unable to bid for the lots because they will be unable to deliver on the capacity required;
- There is a suggestion that smaller providers might join together to form consortia to bid for contracts. However, this misunderstands the nature of independent contractor dental business and even if this was possible, the timetable mitigates against it being a serious option. We understand that individuals who have applied separately for registration under the DPS might not be able to join together subsequently to bid for larger lots.
- If a provider fails to register with the DPS by the set deadline, they will not be eligible to bid for contracts commencing in 2018. This seems likely to exclude virtually all small providers from bidding from any larger contracts with a commencement date in 2018.
2. Clinician engagement
No proper and/or very limited steps have been taken by NHS England to engage with clinicians to discuss the proposed form of procurement for the commissioning of these orthodontic services.
The NHS tendering rules require the commissioning process to be the subject of constructive engagement and for there to be a high level of information sharing. None of this has taken place to date
3. Patient engagement
No and/or very limited steps have been taken by NHS England to engage with patients and the public in advance of the publication of this procurement exercise and thus NHS England does not know whether the proposed form of contracts will be in the best interests of patients or not.
The rules for this procurement have been determined solely by NHS England rather than by collaboration between NHS England, providers and the public as determined by the law.
NHS England has acted unlawfully and continues to act unlawfully in failing to engage patients in decisions made about the appropriate means of commissioning orthodontic services and/or the process by which dentists are to be selected to provide these services.
Further, NHS England has carried out limited, or no, orthodontic needs assessment.
4. Equality assessment
There is no indication that NHS England has undertaken any form of equality analysis or taken any other steps to discharge its duty under the Equality Act 2010.
There is also no indication that NHS England has had regard to the need to reduce inequalities between patients with respect to their ability to access health services and/or the need to reduce inequalities between patients with respect to the outcomes achieved for them by the provision of health services.
The current process appears likely to reduce access to services because of the reduced number of providers if, as is likely, there is a move towards larger providers located in certain areas.
It does not appear that the potential equalities impacts of this on those with protected characteristics (e.g. children from lower socio-economic backgrounds) have been considered in formulating the appropriate commissioning process.
What are we hoping to achieve?
So far, we have set out our grounds in detail to the court and asked NHS England to clarify its position on the matters raised above. NHS England now has the opportunity to respond to our arguments, before we consider whether to proceed to the full Judicial Review hearing stage.
We are specifically looking for:
- NHS England dental procurement using the DPS system to be stopped and;
- Confirmation that NHS England is obliged to follow appropriate fair and open procurement processes when commissioning dental services in future.
We're clear NHS England cannot load the dice in favour of larger providers and jeopardise the livelihoods of hundreds of our members.
Any tendering process that will have a profound impact on services across should not shut out dedicated providers and the public.
If you have any questions, please email advice enquiries.