Competition and choice have applied to the NHS for some time. The 1990s saw the introduction of an internal market, with a split in the commissioning and provision of healthcare services. Since then, a number of policy objectives increased the role of competition and patient choice in the NHS. More recently, moves towards greater integration of care across localities, in line with the Five year forward view, have led to a reduced focus on competition in the NH as partners in local areas work together to deliver sustainable care for the long term.
As the provider sector regulator, NHS Improvement is required (in exercising the statutory duties of the predecessor organisation Monitor) to safeguard patient choice and prevent anti-competitive behaviour. The Competition and Markets Authority (CMA) also has a role in the NHS by operating its merger control regime in relation to mergers involving NHS foundation trusts.
NHS Improvement (NHSI) is empowered to enforce competition rules through the provider licence and by applying the Competition Act 1998 and Procurement, Patient Choice and Competition Regulations 2013. NHSI may undertake investigations where anti-competitive conduct is suspected, either by a provider or a commissioner. NHSI's predecessor organisation, Monitor, from which NHSI takes its legal powers, published guidance explaining how the procurement, choice and competition rules apply to providers.
Competition and Markets Authority
Trusts pursuing a significant transaction should be aware that their transaction may meet the thresholds for a merger review by the CMA. Monitor published guidance which outlines the transaction review process, including a joint guidance document with the CMA that outlines the merger review process.