MI Virtual Lunchtime Seminar: Removing competition law from the English NHS – what can it mean? - Mary Guy

MI Virtual Lunchtime Seminar: Dr Mary Guy, Lancaster University

Removing competition law from the English NHS – what can it mean?

 

Please note that this seminar will be hosted on Blackboard Collaborate. Instructions for joining the seminar will follow nearer the date. Registration is important so that we can send you a link to the on-line session once it becomes available.

Registration is required through the link at the bottom of the page

 

Abstract:

2019 was bookended by proposals to review the competition provisions of the Health and Social Care Act 2012 (HSCA 2012), from NHS England’s NHS Long Term Plan in January to the Queen’s Speech following the December general election. These provisions include Competition and Markets Authority (CMA) oversight of the English NHS, establishment of NHS Improvement as sectoral regulator, applying general competition law and merger control, and enshrining an “NHS-specific” competition regime. 

These proposals appear understood as “removing competition law” from the NHS – a popular move both across the political spectrum and within and beyond the medical profession in view of the controversies surrounding the HSCA 2012. 

However, “removing competition law” can have different meanings, with divergent consequences. At least three broad approaches can be identified, ranging from classifying the NHS as a Service of General Economic Interest (SGEI), thus partially exempt from competition law (the National Health Service (Amended Duties and Powers) Bill), to two extremes of reinstating Secretary of State oversight and completely exempting the NHS from competition law (the National Health Service Bill) and the current proposals to remove CMA oversight and NHS Improvement competition powers (the NHS Long Term Plan).

This paper considers how these three approaches differ, and how the current approach appears capable of easy misunderstanding. Whereas the first two attempts to “remove competition law” from the NHS sought to address the underlying HSCA 2012 framework, thus remove, or reconfigure market structures, the current approach may merely remove CMA oversight and the “NHS-specific” competition regime. This has raised concerns about “deregulation”, or paving the way for an unregulated market to operate at a time when private sector delivery may be expanding: in other words, it is not considered to “de-marketise” the NHS, which might be considered the aim of those opposed to “NHS privatisation”.

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