The fact that 1 April is “April Fool’s day” ought to be enough to warn governments of all shades that it is a bad day to make major changes to government services, but that is the day that the latest batch of NHS reforms comes into play.

It is the day that CCGs will take over responsibility for NHS commissioning and is also the day when the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 come into force.  I have written before about the way in which these regulations will not work in the interests of patients.  However, an unintended side effect is that they will also prevent the efficient discharge of patients from hospital, even when beds are needed for other patients.

I was doing a training session for specialist NHS lawyers this morning where we tried to work out how the new regulations would work when a patient came to be discharged from hospital to an NHS funded care home. This is something that happens in the NHS thousands of times a day. To follow the new regulations, the conversation between the NHS manager and the CCG commissioner on 1 April would have to go something like this:

Hospital Manager:  Mrs Jones is ready to be discharged from our hospital.  She’s eligible for NHS continuing care and so will need a care home bed including some extra nursing support. The family have identified Sunnybank Care Home which has a bed, has a good CQC rating, and is just around the corner from her daughter. The cost is £750 per week.  Can you please confirm we can discharge her to Sunnybank?

NHS Commissioner:  Thank you.  It is now 1 April and so I must act in accordance with the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 in making this decision. As I understand it, you are asking for the CCG to enter into a contract with Sunnybank Care Home for the delivery of healthcare services to Mrs Jones. For the purposes of regulation 5 of the regulations can you please let me know if Sunnybank Care Home are the only provider who might be able to deliver services to Mrs Jones?

Hospital Manager: Well, there are obviously other providers who could deliver services to her but this is a suitable provider and it’s the one that the family has chosen. The price seems about right and the NHS have used this home before so I assume that it would be OK.

NHS Commissioner: Thank you. I regret that, under the new regulations, before I can enter into a contract with Sunnybank Care Home I must run a competitive tender process to select the provider for the NHS which is most capable of delivering the objectives referred to in regulation 2 in relation to the services to be provided to Mrs Jones, and I must also ensure the contracts provides the best value for money for the CCG.

Hospital Manager: What!! This is the NHS providing services for Mrs Jones, not the purchase of a new photocopier.

NHS Commissioner:  The new regulations mean I must go through certain processes before I can lawfully enter into a contract with a provider, and that must include giving other potential providers the chance to bid. There is no escape from the new rules!

Hospital Manager:  But I need the bed for other patients.  Can we place Mrs Jones at the home before you put a contract in place?

NHS Commissioner: Sorry but No. First, Sunnybank Care Home won’t accept her without the CCG agreeing to pay the fees and we cannot do that until a provider is selected after a competitive tender process. Secondly, it would give Sunnybank Care Home a competitive advantage in the tender process over other potential providers if they already cared for Mrs Jones.  There would be an inbuilt advantage for them over other providers because no one would want to move her once she was settled. The CCG has a duty to treat all care home providers equally and it would breach that if we placed her at Sunnybank in advance of the competitive process.  Sorry, she will have to stay in hospital until the tender process has finished.

Hospital Manager: How long will that be?

NHS Commissioner: We will need to prepare a specification of her needs to describe the sort of care she needs, and then we need to advertise the contract to see if there are expressions of interest.  The next stage will be for care homes who are interested in this contract doing will their own assessments of Mrs Jones to see if they want to bid for the contract and how much they will charge.  Once we get all the bids in we will need to consult the family as part of the evaluation process and then take a decision about where to offer to place Mrs Jones.  If we work really fast, don’t get too many bids and have co-operation from the family, we might be able to get all this done in say three months. Six months might be more realistic.

Hospital Manager: That is ridiculous. Where will Mrs Jones have to stay in the meantime.

NHS Commissioner: I regret that I cannot agree to any new contract for Mrs Jones to be moved from your hospital until we have been through a proper procurement service under the new Regulations.  She will have to stay in hospital.

Hospital Manager: But we need the bed for other patients.

NHS Commissioner: I am sorry. The patient cannot be moved without a contract being put in place, and the new regulations do not allow me to put a contract in place unless I have been through a tender process for Mrs Jones and every other patient who needs to be placed in a care home after 1 April 2013. She will have to stay in hospital.

David Lock is a barrister and QC, No5 chambers. He is a board member of of Brook Sexual Health, a member of the BMA Ethics Committee, and a Honorary Professor at University of Birmingham.

Competing interests: I am a member of the Labour Party and Chair the West Midlands Branch of the Labour Finance and Industry Group.  I am due to become a non-executive Board Member of Heart of England NHS Foundation Trust which is due to commence on 1 June 2013.  My wife is a doctor who is employed by Worcestershire Partnership NHS Trust.