Competition issues in the healthcare sector
Published on 7th Jan 2016
Be part of the discussion
In order to share experiences and facilitate a wider discussion of the common challenges facing healthcare providers, we are planning to host a practical workshop session in the Spring. If you would be interested in attending this event, please email here.
The current position
The health sector is alive with new models of care and ways to provide better patient outcomes and delivering efficiencies. Principles and structures range from the integration of services, alliance contracting, “lead provider” outsourcing of care pathways, collaborative working (intra NHS, private and third sectors) to strategic partnerships. Private patient units and local devolution are reoccurring hot topics.
Many in the sector have not been deterred from exploring these new opportunities despite the procurement and competition regime changes, including in light of the Health and Social Care Act 2012 and Monitor’s investigations as the sector regulator.
Often the issue of competition law is at the forefront of parties’ minds on infrequent mergers between trusts. However, it may be given less attention (if any at all) on the more common healthcare models and projects.
Why should competition law be considered earlier?
Anti-competitive behaviour in the provision of healthcare services may be investigated by the regulator. The investigations lead to delays in implementing the proposed project/model (in itself often causing financial losses from an inability to bring about the proposed efficiencies at the heart of the proposal). In addition, healthcare providers risk significant financial penalties and even criminal liability should an investigation find evidence of anti-competitive behaviour.
Competition law does not prevent these projects or models, but it may require that:
(i) sufficient evidence is produced to demonstrate patient and clinical benefits; and
(ii) appropriate safeguards are put in place to ensure collaboration in one area does not affect patient outcomes elsewhere. Considering and demonstrating these elements earlier in the project/model inception and procurement process will save time and costs.
Why Osborne Clarke?
Our market leading competition and regulatory team has in-depth expertise across all aspects of EU and UK competition law. We work alongside healthcare sector organisations at all stages of these projects, designing solutions that enable collaborations to proceed and overarching objectives to be delivered, minimising legal risks and avoiding unnecessary delays.
More importantly, we understand how this technical area of law applies in the specific context of the UK healthcare market, including how best to engage with regulators.
If you would like to discuss any collaboration ideas or projects that your organisation is contemplating, please get in touch with one of our experts.
