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Competition law and collaboration
What does it mean for NHS ambulance trusts?
Sharon Lamb, Partner22 May 2013
Overview
Introduction Understanding competition law
examples from NHS cases What does it all mean for future collaboration?
Introduction
Confused terminology Procurement is not the same as Competition But procurement and competition can work together to
regulate the market
Strong views . . . .
Introduction (2)
“[the changes are] driven by the ideological desire to establish a market ethos in healthcare, along the lines of the earlier privatisation of public utilities. But healthcare is not amenable to the marketplace and this bill is a Trojan horse that will destroy the NHS from within”
Introduction (3)
“The market may be the means by which the NHS […] becomes an integrated functional whole […].
We may move towards a market as envisaged by Adam Smith and his description of how competition also leads to co-operation via the action of the “invisible hand” that guides multiple providers to meet the needs of multiple purchasers.
No non-market, planned economy has ever succeeded in matching supply with demand”
Introduction (4)
Has anything changed? or is the law “confirmed”?
No real changes in principles but significantly different rules of enforcement a new regulator new licensing conditions
Competition LawApplication to NHS ambulance trusts
Mergers Behaviours
Chapter 1 – cartels etc Chapter 2 – abuse of a dominant position
Monitor’s licence
Competition LawMergers with NHS ambulance trusts
Mergers A merger between a NHS Foundation Trust and NHS
Trust or NHS Foundation Trust
What is a merger not just a merger .. . Could be . . . partnership working, joint ventures,
shared services or hosted services may arise whenever there is common control, a transfer
of assets or staff or joint branding
Competition LawMergers with NHS ambulance trusts (2)
Jurisdiction OFT and Benefits case from Monitor Possible referral to CC
Mergers – Previous Cases SWAS acquisition of GWAS CCP mergers – more than 135 OFT – only two so far. . .
Key points made by CCP on the SWAS acquisition core services non core-services such as PTS, 111 etc
Competition lawBehaviours – Chapter 1
Chapter 1 Concerted practices that prevent, restrict or distort
competition Examples for NHS providers
Price fixing Bid rigging Sharing markets for healthcare services Dividing markets for healthcare services
Competition lawChapter 1 - things to think about?
Things to think about? Information sharing Price fixing Bid rigging Sharing markets for healthcare services Dividing markets for healthcare services
OFT investigation on private patients no Trust may request or provide individualised pricing
or costing information
Competition lawChapter 1 - things to think about (2)?
What behaviours may be acceptable? information exchanges in the usual course of business there is no appreciable effect on competition
historical aggregated data market research that doesn’t affect competition good clinical practice general industry studies
Take care . . . .
Competition lawChapter 1 - things to think about (3)?
If it goes wrong: fines of up to 10% of turnover third parties can bring damages claims individual fines director disqualification
Competition LawBehaviours – Chapter 2
Chapter 2 Abusing a dominant position
Imposing prices Unfair trading conditions Limiting markets Limiting access to goods or services
Things to think about? Restrictions on consultants Predatory pricing for some NHS services Refusal to provide some NHS services
Monitor’s licence
Licence no agreements which prevent, restrict or distort
competition engage in conduct which has the effect of preventing, restricting or distorting competition
Similar to Chapter 1 But an exemption . . . it is not against the interest
of patients Powers to enforce
Competition compliance training?
OFT recommendations
Review arrangements between competitors
Commitment at Board level
Compliance program
Internal training
Questions and Answers