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Competition law and collaboration What does it mean for NHS ambulance trusts?

Competition law and collaboration What does it mean for NHS ambulance trusts?. Sharon Lamb, Partner 22 May 2013. Overview. Introduction Understanding competition law examples from NHS cases What does it all mean for future collaboration?. Introduction. Confused terminology

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Competition law and collaboration What does it mean for NHS ambulance trusts?

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  1. Competition law and collaborationWhat does it mean for NHS ambulance trusts? Sharon Lamb, Partner 22 May 2013

  2. Overview • Introduction • Understanding competition law • examples from NHS cases • What does it all mean for future collaboration?

  3. Introduction • Confused terminology • Procurement is not the same as Competition • But procurement and competition can work together to regulate the market • Strong views . . . .

  4. 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”

  5. 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”

  6. 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

  7. Competition LawApplication to NHS ambulance trusts • Mergers • Behaviours • Chapter 1 – cartels etc • Chapter 2 – abuse of a dominant position • Monitor’s licence

  8. 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

  9. 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

  10. 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

  11. 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

  12. 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 . . . .

  13. 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

  14. 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

  15. 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

  16. Competition compliance training? OFT recommendations • Review arrangements between competitors • Commitment at Board level • Compliance program • Internal training

  17. Questions and Answers

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