Table of Contents INTRODUCTION.........................................................................................................................3 TASK..............................................................................................................................................3 NHS in England......................................................................................................................3 Existence of competition in the NHS.....................................................................................3 Phases of NHS reform in relation to competition..................................................................4 Abuse of Dominant Position..................................................................................................4 Anti- Competitive Practices...................................................................................................5 Case Law: Trinity Hospital....................................................................................................5 Rules which govern choice and competition..........................................................................8 CONCLUSION...............................................................................................................................9 REFERENCES..............................................................................................................................10
INTRODUCTION Healthcare law and ethics generally refers to the rights and responsibilities of the patients and doctors respectively. Health care is a large industry which needs regulations to be followed by the industry. It deals with the patients and their safety which makes it very important for healthcare industry to have transparency(Ballantyne, A. and Stewart, C., 2019).Healthcare is a large public law issue and the domain of healthcare laws for utmost transparency, ethicality and observance of principles of natural justice. It is always said that a patient or a consumer of such services should be accorded with due rights and thus enable them to seek a claim of duty from healthcare professionals. Autonomy of patients: their right to choose freely, a duty of Non- malfeasance and the duty of beneficence are the ethical aspects of Healthcare Laws. TASK NHS in England NHS i.e. National Health Service is a government funded heath care and medical unit which provides the people of UK with all the medical services at lower rates. These services includes: getting treatments and visiting doctors in case a person is injured or unwell, getting any kind of urgent medical help, ambulance services, etc. There are more than one NHS in the UK which are all government funded. The scheme as under the National Health Service & Community Care Act, 1990 has been altered by the reforms of 2012 legislation Health and Social Care Act. There has been a wave of concerns regarding how the procurement and outsourcing has increased in the globalised world. There is a large reliance on IT services and NHS has suffered from the same. Existence of competition in the NHS NHS when came into existence in 1948, all the funding was provided by the governement to the health care unit at the hospital. Later in 1991 with the introduction of competition in the market there was a structural change in the NHS. This gavebuyers freedom to buy healthcare products from both the sectors of the market, which were public sector an dprivate sector. This was the era from where the comeption began to staret in the market of healthcare and medical. There were policies made in that phase which focused more on the cooperation between the suppliers and buyers rather than focusing on competition in the market(Banja, J.D., 2019).
Phases of NHS reform in relation to competition Earlier in UK, prior to 1991, there were publicly funded health care units at the hospital where all the supplies were supplied by the government funding(CANDILIS, P.J. and SIDHU, N., 2017). The funding were received directly from the central government based on the local population of the area. After the introduction of the competition in the supply unit of health care market in 1991, all the links were broken by the conservation administration between the funding and provisions. The competition created a group of buyers who were government funded and were free to purchase all the healthcare productsfor their population from both types of suppliers i.e. from public and private sector. Later in 1997, there was an introduction is the policy change which focus more on the cooperation rather than on competition. This led to the separation of the buyers and suppliers in the health care unit. In the conservative regime of 1990s only a few services had bigger presence of private companies but since the introduction of HSCA, 2012 GP surgeries, x-rays, CT scans etc. have also been included. Certain NHS hospitals are being run by Private playersin Toto.The market of health services has been thrown wide open and there is a wide choice available to consumers. The Competition regulator CMA is jointly in - charge with the Monitor to overlook this market which is of keen importance. The vertical or horizontal agreements to provide for integrated care can be frowned upon too, the rational being that Consumer Choice is supreme. Section. 62 of HSCA 2012 enables the Monitor tostrike a balance in the market by targeting anticompetitive behaviourvis-a-vispatients’ interests [Sec.62(2)], which is in addition totheMergerthresholdsorcombinationpracticesasreferredtopopularly[Sec.79]. Enforcement of the recent directive in 2015 makes the dealings of NHS more efficient and competitive balancing the patient interests too. The monitor has to necessarily make a fair assessment of the providers, commissioners and all stakeholders without any discrimination. NHS being a body that works on the idea of common good of all, without any detriment to the publicresourcesessentiallyalignswiththebasictenetsofCompetitionLawand policy(Giannouli, V., 2018). Abuse of Dominant Position Any abuse done in the market by the dominating firms which effects the working in common market is prohibited. It is mentioned in Article 82 and chapter 2 of prohibition of UK. This abuse mainly affects the trade between the Member states. This involves all kinds of unfair
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mediumswhichdirectlyaffectsthelocalorthesmallscalemarkets(Seuba,X.,2018). Dominating firms tries to abuse the existing market by raising there prices, making there products supply at higher range, By limiting there products supply and development to the consumers, By providing different conditions to trading parties, framing contracts which are irrelevant to there products. For instance, The dominant Health care companies increase there prices of supply of medicines or equipments which results that the lower health care market is adversely affected by it. Anti- Competitive Practices Anti competitive Practise is the unfair trade practises done in the economic and various sector in the market which adversely affect the business of the companies. It is mentioned in Competition Act 1998 and Article 101 prohibitions(Salton, H.T., 2020). Anti competitive practises are illegal, they are like price fixing, dumping, tying, dividing territories. This is mostly done by the big companies in order to cut down the competition, and to increase there profits with such illegal practises. For instance, During theses pandemic situation companies dealing with supplies of health and medicines products has applied dumping which means that they had sold there products in moderately lower prices as expected and that directly affected the small scale industries as people buying products from that company without even giving preference to any. So this illegal practises is prohibited in UK. Case Law: Trinity Hospital Focusing on the issue at hand where we see Adam’s deal for Trinity hospital we must delineate certain key aspects that we have already discussed in brief above. TheNHS competitionrulesthreecomponentstwo ofwhichareanticompetitive behaviour dealt under section 62 and merger control mentioned under section 79(Lance Plunkett JD, L.L.M., 2020). Anti – Competitive issues rise by actions of undertakings, against the market which comprises of several stakeholders: not crucial ones being competitors, consumer and intermediaries, as mentioned in the article 101 of TFEU. We shall now look into whether the agreement entered into by Trinity hospital is actually to abuse its dominant position or not. In furtherance to the same these are the relevant issues to look into:
1.Whether the monitor can take up an analysis of the said agreement in compliance of competition law? 2.If yes whether Trinity hospital is an undertaking that is dominant in the market? 3.And if so has Trinity hospital in any way by the virtue of the said agreement has abused its dominant position in the relevant market? Reasoning and Analysis Jurisdictional Power: It is amply clear that the Monitor enjoys simultaneous power with the Competition and Markets authority by the virtue of part 3 of the Health and Social Care Act 2012(Zölzer, F. and Meskens, G. eds., 2017). The concurrent power so allowed statutorily has wide ramifications for all stakeholders . It enhances the possibility to have a clear purview on a specific sector, herein health. It allows for a cumulative reading of the antitrust rules and regulations and statute which lead to a better understanding of the sector, its needs, effects on stakeholders and overall prosperity. Dominance of Undertaking:The second aspect focuses on determination of whether Trinity hospital enjoys a dominant position in the relevant market. For such determination we shall look into the relevant market in which the said agreement has taken place or in which Trinity hospital operates providing its services for economic gains this clearly satisfies theHofnertest. By the relevant facts of the given situation the agreement pertains to provision of blood testing facilities to the people in the local area. Another key fact to be taken note of is that Trinity hospital enjoys 50% of the total market share for the market of blood testing services in the local area which is unspecified but shall qualify as the relevant geographical market for the Monitor. There are several judgements which pertain specifically to determination of market dominance. The same shall be discussed to understand if Trinity is dominant as under: InAKZOChemie BV v Commission of the European Communities,it was said by the Court of justice that if an undertaking enjoys market share larger than 50% it would be considered to have a firm hand over the market. In another famous rulingHoffman La – Rochev.The Commission,the Court was of the opinion that market dominance is affected by other factors and a market share of 40% can be considered (with certain other suitable factors) to have dominance in the market .
In another situation pertaining to theUnited Brandscourt was of the view that a percentage as high as 45% is sufficient to highlight dominance. On the basis of this, Monitor’s analysis can take an approach to assess the same and might safely arrive at a conclusion that Trinity hospital enjoys a dominant position with its next competitive entity having only 30% off the market share. Analysis of Agreement: Whether the dominant position was abused The health market in UK is such that general practitioners introduce customers by way of reference to hospitals. The customers’ or the patient’s choice is seldom made by its own analysis. This highlights the issue of a reduced countervailing buyer power in the health market(Sim, F., 2020). In such a scenario if an agreement that allows for a compulsory reference of as high as 70% patients i.e. the customer base is allowed operation, the market can witness a clear movement of shift in consumer choice. Though, such choice would be more or less the choice of the General Practitioner rather than the consumer / patient itself. Such an agreement is to have an exclusive understanding that certain services are to be taken mandatorily from a given provider. An exclusive dealing agreement such as the one entered into to buy Trinity hospital would be assessed on the grounds of the Effective countervailing buyer power, scope of Patient’s choice in matters as crucial as testing which decide the future remedies and most importantly how “exclusive” is the agreement. Monitor’s analysis shall also have a conjunctive perspective, keeping tab on the duration of the agreement which is 5 years ; weakening the chance of Prince hospital's access to patients for at least the same. This highlights the possible foreclosure of market on Prince Hospital and all other small players in the relevant small area. It also acts as an entry barrier for new hospitals or new providers [EDF casefrom 2010]. Another aspect, as mentioned earlier, to be looked in such cases pertaining to exclusive contracts is the reach of the contract. It is clearly evident that, Adam had an agreement with the Consortium of GPs. An assessment of such reach is necessary for the Monitor to understand how much access of possible patients is lost to Prince Hospital and other smaller players. Totally depends on the number of General Practitioners in the Consortium so mentioned.
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Rules which govern choice and competition To keep an eye on the relevant healthcare provisions the monitor should also take note of any future techniques or schemes used by Trinity hospital or being processed already. Certain regulations as under Procurement, Patient’s Choice and Competition Regulations 2013 namely Regulations 2, 3 and 4are crucial to understand the issues referred above. In this regulation an small breakdown that is relevant through application by monitoring and has been given as. In this absence of facts regarding improvements over integrated health services should be mentioned. It makes stability in health care sector. NHS has been formed to make domination upon local areas by making smaller places to be developed(Rodger, D., 2018). These agreements possesprofessionalismthroughnatureofprofessionalexpertise.Thiscanmakessimilar agreements to be impacted. There are some regulations followed as follows: Here there is an absence of a fact that suggests, there will be an improvement in an integrated way of health services.(Regulation 2). For example an contract has accrued between local authority and NHS if facts are not clear then health services will be impacted. Absence of an effective countervailing buyer power in the NHS domain of the local area creates sufficient pressure on Prince hospital and smaller places [Regulation3(3).Forexampleimplementationofloyaltyprogramsby companies makes differentiation possible over services provided by hospital. considerable loss to patients’ choice is further enhanced by such agreements which are highly professional in nature due to professional expertise being involved[Regulation 3(4)]. For example HR management is required to seek all functions of management in hospital. the possibility of other provider actually engaging in a similar agreement gets highly affected and foreclosure is quite on the cards (Regulation 4).For example an investor should take risk as this makes profit to be increased for an hospital. In the end a possible analysis of capabilities shall also be done to understand if there can be a legible claim of Trinity Hospital to enter into such a contract as it can be the only relevant player with suitable facilities to cater to the population of the local area in the near future period, which might suggest an endemic issue or several.This is highly dependent on the market
analysis(Vearrier, L., 2019). Abuse and dominance can be checked by applying article 102 of abuse of Dominance for example if trinity hospital tries to make dominance in healthcare sector by using its powers. Then NHS can used the above mentioned sections in order to regulated its conduct. CONCLUSION NHS being a body that works on the idea of common good of all, without any detriment to the public resources essentially aligns with the basic tenets of Competition Law and policy. Choice and fairplay are themes that go hand in hand whenever issues pertaining to competition laws are thought of. The development of such laws clearly highlights the inclusion of principles which have their primary basis in choice. Several regulations, especially those of 2013 and 2015 are of peculiar importance to the Monitor to ensure a practical approach, to maintain competition in the market, is taken(Rowe, G., 2019).Special reference to Regulation 10 and also the 2015 reform to account for certain agreement which though can be anti competitive but carried by NHS in the best interests of the patients.
REFERENCES Books and Journals Ballantyne, A. and Stewart, C., 2019. Big data and public-private partnerships in healthcare and research: The application of an ethics framework for big data in health and research. Banja, J.D., 2019.Patient Safety Ethics: How Vigilance, Mindfulness, Compliance, and Humility Can Make Healthcare Safer. JHU Press. CANDILIS,P.J.andSIDHU,N.,2017.ETHICSMENTALATHEALTHTHE INTERSECTION AND THE LAW OF.Mental Health Practice and the Law. Giannouli, V., 2018. Business ethics and the Greek healthcare system. InEthical Standards and Practice in International Relations(pp. 100-127). IGI Global. Lance Plunkett JD, L.L.M., 2020. The Law is More Important than Ethics.New York State Dental Journal,86(1), pp.2-5. Rodger, D., 2018. Law and Ethics in Nursing and Healthcare: An Introduction. Rowe,G.,2019.PRACTISINGVALUESANDETHICSINHEALTHANDCARE SETTINGS.The Handbook for Nursing Associates and Assistant Practitioners, p.75. Salton, H.T., 2020. Sovereignty and the new executive authority: ethics, national security, and the rule of law. Seuba, X., 2018. International harmonization of pharmaceutical standards: trade, ethics and power. InResearch Handbook on Global Health Law. Edward Elgar Publishing. Sim, F., 2020. Public health ethics: let’s have an even wider perspective.Journal of Public Health. Vearrier, L., 2019. The value of harm reduction for injection drug use: A clinical and public health ethics analysis.Disease-a-Month,65(5), pp.119-141. Zölzer, F. and Meskens, G. eds., 2017.Ethics of Environmental Health. Taylor & Francis.