Health services regulator issues guidance on applying Competition Act 1998

Monitor has published guidance for healthcare providers on the application of the Competition Act 1998 to the sector.

The guidance, which can be viewed here, describes the powers the health services regulator shares with the Competition and Markets Authority (CMA) and explains how it will use them in accordance with competition law.

It covers:

• Monitor’s concurrent powers;
• Its investigation procedures in competition cases: allocation of cases; prioritisation principles; relationship between competition law and the choice and competition licence conditions; making a complaint; informal advice; and investigation procedures;
• Its enforcement powers in competition cases: directions; interim measures; commitments; penalties; and leniency;
• Its approach to publishing decisions;
• Appeals against its decisions;
• Assessing anti-competitive practices in the health sector: benefits; representative bodies; and commissioner involvement;
• Assessing abuse of dominance in the health sector.

Monitor has also published:

1. Choice and competition licence conditions: guidance for providers of NHS-funded services: This guidance explains the choice and competition conditions of the NHS provider licence and explains how Monitor applies these licence conditions in individual cases.
2. Monitor’s approach to market investigation references: guidance for providers: this informs patients, healthcare providers, commissioners, patient groups and other interested parties of how Monitor approaches its powers to make market investigation references under Part 4 of the Enterprise Act 2002.
3. Hypothetical scenarios for NHS healthcare providers: these help illustrate how the choice and competition conditions of the provider licence and competition law work in practice.

The regulator said: “Choice and competition have existed in the NHS in England for many years and are powerful tools for improving the quality of care provided to patients. They enable patients and commissioners to select the providers which offer quality services that best meet the needs of patients.”

It added that choice and competition were governed by specific rules which sought to make sure that:

• they operate in the best interests of patients;
• procurement decisions by commissioners achieve the best results;
• all providers are treated fairly;
• no one behaves anti-competitively to the disadvantage of patients.

“Our role is to make sure that this all works the way it is meant to: that the rules are applied taking into account the specific circumstances of the health sector, and above all that they are applied in the best interest of patients,” Monitor said.

“We take this responsibility seriously. We will enforce the competition rules affecting healthcare services to ensure that they operate fairly in the interests of patients, and to help both NHS providers and NHS commissioners meet the needs of patients.”

The Health and Social Care Act 2012 gave Monitor shared powers with the CMA to enforce the 1998 Act and the Treaty on the Functioning of the European Union in relation to the provision of healthcare services in England.

It said that in applying its concurrent powers it would draw on the approach of the CMA set out in the latter’s guidance.

Monitor's guidance will be updated as the regulator gains more experience in dealing with potential breaches of competition law.