Newsflash: New competition law requirements for the private healthcare sector including NHS private patient units
The Competition and Markets Authority (CMA) has made an order to implement the “consultant fees remedy” under the Private Healthcare Market Investigation Order 2014 (the Order).
The Order places obligations on consultants to:
- From 31 December 2017, provide patients with information at certain stages in the care pathway; and
- From 31 December 2018, provide information on fees to the Private Healthcare Information Network (PHIN).
The requirements apply to all consultants undertaking private work (including those working in NHS private patient units).
Although there is still some time until these obligations take effect, operators must start to prepare for compliance. They should provide their consultants with approved templates for providing information to patients and ensure that patients have received this information.
These requirements build on the existing duties of private healthcare operators to provide information about performance measures. From 3 May 2017 PHIN has started to publish information about three of these performance measures (patient satisfaction, number of patients treated and average length of stay) with publication of a further eight measures over the next 12 months.
The publication of this information is intended to improve the availability of information to patients and to bring standards of data quality and transparency in line with the NHS. Private healthcare operators will need to start collecting information on all performance measures (including health outcomes), if they are not already doing to, to meet these information requirements.
Duties to provide patients with information
From 31 December 2017 consultants will be required to provide patients with information letters prior to outpatient consultations setting out:
- the estimated cost of the outpatient consultation
- details of financial interests of the consultant (i.e. any conflicts of interest)
- a list of insurers which recognise the consultant
- a statement that insured patients should check with their insurer the terms of their policy including the level and type of outpatient cover, and
- standard wording about the PHIN website.
From 28 February 2018 consultants will be required to provide information to private patients prior to further tests or treatments setting out:
- the reason for the relevant tests or treatment
- an estimate of the cumulative cost of the treatment pathway recommended
- a statement of any services that have not been included in the estimate (examples include anaesthetic fees and fees that cannot be quantified prior to treatment e.g. where unforeseen complications arise)
- standard wording about the PHIN website.
When giving this information consultants must use a template provided by their private healthcare operator and approved by the CMA. Private healthcare operators must ask every patient undergoing inpatient, day-case or outpatient procedures (including diagnostic tests) to sign a form confirming that the consultant has provided this information unless it has provided the information to the patient on the consultant’s behalf.
Private healthcare operators may wish to start developing their templates in preparation for these requirements being introduced. Consultants may also wish to start providing patients with this information where it is available, as a matter of good practice. We will provide further advice on what these letters should contain in the coming months.
Duties to provide information about consultant fees
From 31 December 2018 (and thereafter from time to time on a regular basis) all consultants must provide PHIN with additional information relating to fees, specifically:
- outpatient consultant fees (either as a fixed fee or hourly rate);
- the standard procedure fee for the 50 types of procedure most frequently undertaken by the consultant, or such lower number as PHIN may require;
- standard terms and conditions plus any exclusions or caveats in a standard form determined by PHIN.
- PHIN is required to publish all fee information by no later than 30 April 2019.
We can provide further advice to organisations on best practice and collection of performance and fee information to ensure your organisation has legally compliant systems in place for meeting the PHIN requirements.