Assignment Task :

Key issues – Competition 

Introductory remark: Explain that 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.

Explain how market competition has been progressively introduced in the healthcare sector in general and, in the NHS in particular. So, you may briefly consider the different phases of NHS reform in relation to competition. For instance, consider:
1. 1948-1990
2. 1990 -2012
3. 2012- onwards (HSC Act 2012)

Explain that competition is now closely linked to the phenomenon of outsourcing, procurement (for example you may consider statistics/data/example on the resources that go the private sector). 

Explain that Choice and competition are governed by specific rules which seek to make sure that: 
1
.  they operate in the best interests of patients 
2.  procurement decisions by commissioners achieve the best results 
3.  all providers are treated fairly 
4.  no one behaves anti-competitively to the disadvantage of patients. 

When considering/referring to these rules you may explain that this has also ethical implications since the addressees of these services are patients and these healthcare services are funded by taxpayers money (so, you may refer to the inspiring principles of the NHS, see Chapter 2 of Kortext).  


Now, we need to move the issue of competition since we need to consider the compatibility of Adam’s agreement with competition rules and, in particular, with the rules on Abuse of Dominance. 

More specifically, explain that the NHS competition rules have three main components: 
(i)
the prohibition on anticompetitive behaviour; 
(ii)  merger control; and 
(iii)  the prohibition on illegal state aid.

 

Provide some general info on the importance of competition not only for patients but also for private providers.  Preventing anti-competitive behaviour also means that providers can compete in a fair environment. This helps to ensure that providers are rewarded based on the quality and value of services they provide, which may incentivise them to make long-term investments and to improve services further for patients.

Consider, now in more detail that content/scope of Competition law which prohibits:
1.
Anti-competitive practices: that is, agreements between undertakings, decisions by associations of undertakings and concerted practices that have the object or effect of preventing, restricting or distorting competition.  
2. Abuse of dominance: that is, conduct by one or more undertakings which amounts to the abuse of a dominant position in a market. 

Focus on Abuse of dominance to assess if Adam’s agreement is in breach of Competition rules. 

How to do that? 

Explain that under Article 102 TFEU and Chapter of the CA 1998, there are 2 tests common to assessing abuse of dominance:
1. whether a provider is dominant
2. if it is, whether it is abusing that dominant position


Then, explain that Anti-competitive behaviour by ‘undertakings’ is prohibited under the Treaty on the Functioning of the European Union (TFEU) as well as by the Competition Act 1998. 

Both rules prohibit ‘undertakings’ from entering into anticompetitive agreements and abusing a dominant position. 


 

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  • Uploaded By : Grace
  • Posted on : November 05th, 2018

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