Healthcare Law and Ethics Report: NHS Competition and Ethics

This report provides a comprehensive analysis of healthcare law and ethics, focusing on the National Health Service (NHS) in England. It examines the structure of the NHS, the introduction of competition, and the phases of reform related to competition. The report delves into the concepts of abuse of dominant position and anti-competitive practices, providing examples and relevant case law, particularly the case of Trinity Hospital. It explores the rules governing choice and competition within the healthcare system, offering insights into the legal and ethical considerations that shape the healthcare landscape. The report also discusses the Health and Social Care Act 2012 and its impact on competition, including the role of the Competition and Markets Authority (CMA) and the Monitor in overseeing the market. The report concludes by summarizing key findings and their implications for the healthcare industry.

Healthcare Law and
Ethics

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 gave buyers 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 products for 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 players in 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 to strike a balance in the market by
targeting anticompetitive behaviour vis-a-vis patients’ interests [Sec.62(2)], which is in addition
to the Merger thresholds or combination practices as referred to popularly [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
public resources essentially aligns with the basic tenets of Competition Law and
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

mediums which directly affects the local or the small scale markets(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.
The NHS competition rules three components two of which are anti competitive
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 the Hofner test.
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:
In AKZO Chemie 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 ruling Hoffman La – Roche v. 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 the United Brands court 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 case from 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.

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 4 are 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
posses professionalism through nature of professional expertise. This can makes similar
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
[Regulation 3(3). For example implementation of loyalty programs by
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. and SIDHU, N., 2017. ETHICS MENTAL AT HEALTH THE
INTERSECTION AND THE LAW OF. Mental Health Practice and the Law.
Giannouli, V., 2018. Business ethics and the Greek healthcare system. In Ethical 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. PRACTISING VALUES AND ETHICS IN HEALTH AND CARE
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. In Research 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.