Monitor was consulting on how it proposes to discharge the statutory duty relating to choice and competition functions it will take on from April 1st 2013 as a result of the Health and Social Care Act 2012. This includes draft guidance on the choice and competition conditions of the licence that is being issued to all NHS foundation trusts and in due course to other NHS-funded providers.
Introduction
1. The Health and Social Care Act 2012 (the Act) gives Monitor concurrent, or shared, powers with the Office of Fair Trading (OFT) to enforce provisions of the Competition Act 1998 (CA98) and the Treaty on the Functioning of the European Union (TFEU) in relation to the provision of health care services in England. We refer to these laws as competition law in this document. This guidance explains how we will use these powers.
2. By investigating anti-competitive behaviour, we will seek to ensure that patients have access to high quality health care services. Preventing anti-competitive behaviour also ensures that providers can compete in a fair environment. This helps to ensure that providers are rewarded based on the quality of services they provide which may incentivise them to make long term investments and to improve services further for patients.
3. In applying our concurrent powers, we will draw upon the approach of the OFT as set out in guidelines (see http://webarchive.nationalarchives.gov.uk/20140402142426/http://www.oft.gov.uk/about-the-oft/legal-powers/legal/competition-act-1998/ for a list of the OFT’s guidelines as to how the OFT and sector regulators enforce CA98 and deal with particular matters).
4. As we gain more experience in dealing with potential breaches of competition law we will update our guidance. From time to time we may find it necessary to deviate from this guidance, e.g. if a case raises particularly novel issues. When we do this, we will acknowledge that we have deviated from our guidance and will set out our reasons for doing so.
5. The remainder of this guidance is structured as follows:
- Monitor’s concurrent powers;
- Monitor’s investigation procedures in competition cases;
- Monitor’s enforcement powers in competition cases;
- Monitor’s approach to publishing decisions;
- Appeals of Monitor’s decisions;
- Assessing anti-competitive practices in the health sector; and
- Assessing abuse of dominance in the health sector.
Comments on Monitor Consultation on guidance on the application of the Competition Act 1998 in the health care sector
The Royal College of Physicians of Edinburgh (the College) is pleased to respond to Monitor’s consultation on guidance on the application of the Competition Act 1998 in the health care sector.
The College has the following comments:
This paper provides guidance on the implementation of competition in the NHS while recognising that Monitor will work with the Office of Fair Trading to ensure that competitive and commercial arrangements within the Health Service are perceived to be equitable and fair. Generally, there are few contentious parts to the paper but it is regrettable however that, in concentrating on competition, the most important aspect of providing the balance between cost and best service for patients ie value for money has been missed.
Indeed, the paper goes on to say that providers are rewarded based on the quality of services they provide which may incentivise them to make long-term investments and to improve services further for patients. This may or may not reflect the best value for money, although the opportunity to attract further investment in services for patients is important.
Commissioners must ensure complete transparency in the process of procurement and a lack of conflict of interest. However, there is a concern that it was felt necessary to highlight in the paper that representative and professional bodies should be mindful that they do not facilitate or provide a forum for anti-competitive behaviour by their members. The precise nature of such a forum is not defined but such organisations should not be criticised for allowing their members to combine their opinions in support of good patient care, especially if this relates to the provision of particular services.
Hospitals which provide significant teaching and training commitments may be disadvantaged if their contribution to the future of the NHS is not taken into account, as their services may be viewed as relatively expensive. However, if these training and teaching commitments were lost then junior doctors would be disadvantaged and repercussions would be felt in the NHS in future.