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Putting in place new care models and developing new organisational forms does not automatically give rise to competition concerns. But any changes of this nature do require early consideration of competition law, even if it is simply to discount its relevance to the proposals.
By competition law we are really speaking about merger review, anti-competitive behaviour or both where two or more competitor organisations are collaborating or merging into a single entity. Generally, the more permanent and formal a change, the more competition law needs to be taken seriously.
The good news is that collaboration between organisations in delivering integrated care is unlikely to result in issues where those organisations are providing different health services at different ‘levels’ of the NHS care pathway.
So there is unlikely to be a competition issue where integration involves the coming together of organisations which do not provide competing services – for example, primary care might integrate with secondary care to create a vertically integrated organisation but there is little change in choice for each type of care from the patient’s perspective.
Where organisations which do offer the same or similar services come together, then there can be competition implications from either a merger or a behavioural point of view. Competition law regulates the behaviour of competitors to ensure there is no unfair competition which could give rise to, in the case of the NHS, patient detriment. So a loose collaboration between two acute Trusts which facilitated the exchange of commercially sensitive information (and had an effect on individual tendering for commissioned services) may well be an issue. Similarly, the merger of two organisations into one might give rise to a merger review by the competition authorities.
A quite different competition matter which may be relevant when considering system redesign (and which can often be overlooked) is where real assets are moved from, for example, an NHS Trust to an FT or non-NHS organisation. Any disposal of State-owned property outside the State must be at a commercial value to avoid EU State aid issues.
Complying with competition law – key questions
- Are you considering a new organisational form or a less formal model?
- Will the new model involve vertical integration of services at different ‘levels’ of the care pathway?
- Does your new model involve organisations offering the same or similar services?
- If there is any overlap in services, how well can you justify the new model on the grounds of the benefits it will offer to patients?
- Can you be open and transparent about your plans?