‘What can Monitor learn from the Dutch experience of healthcare?’

The Centre’s Mary Guy (CCP and Law) will be asking ‘What can Monitor learn from the Dutch experience of healthcare regulation?‘ in her presentation to the UEA Law School, on Wednesday at 4:30pm.  An abstract for her seminar can be found below.

Abstract

The Health and Social Care Act 2012 (HSCA 2012) established Monitor as an economic regulator for healthcare. This new role involves concurrent competition enforcement powers with the OFT, an advisory function regarding mergers and a duty to cooperate with the Care Quality Commission. This division of effort between the competition authority and healthcare and quality regulators shares several similarities with the roles of the Dutch Competition Authority (NMa), Healthcare Authority (NZa) and Healthcare Inspectorate (IGZ).

While there are significant differences between the English and Dutch healthcare systems, there is also a fundamental similarity: both are EU Member States embracing greater degrees of liberalisation in their healthcare systems. This means that both are operating within the same legal framework and confronting similar competition issues such as defining undertakings and markets in healthcare. The extent of divergence between the two systems (the taxation-funded English NHS and the private Dutch health insurance system) remains to be seen in such matters, and particularly in the roles of the healthcare regulators.

The NZa was created by statute in 2006 with an apparently clearly-defined remit – to prioritise the “general consumer interest”, interpreted in terms of accessibility, quality and affordability. This remit has arguably both assisted and hindered the NZa’s development as a credible independent agency. In contrast to the new situation in England, there is a clear separation between the NMa and NZa’s respective roles regarding competition law. A notable example can be seen in the ex-ante assessment of dominance, or Significant Market Power, by the NZa. However, a lack of clarity about the NZa’s advisory role in merger control and NMa predominance has led to refinements being made to the general Dutch merger regime, culminating in a significant legislative proposal for a healthcare-specific merger test which gives both the healthcare and quality regulators a greater substantive role and is due to be enacted in 2013.

At first glance it appears that Monitor can learn much from the NZa’s experience of merger control as the functions of both involve cooperating with the respective quality regulators to advise the competition authorities (who retain exclusive competence in merger assessment). The first NHS Foundation Trust merger has now been referred to the Competition Commission, a test case which provides the first practical application of the healthcare merger regime envisaged by the HSCA 2012. This paper therefore provides a timely examination of what Monitor may be able to learn from the NZa as, despite differences between the Dutch and English healthcare systems, similar problems regarding Monitor’s credibility and effectiveness may arise once NHS entities are no longer overseen by the NHS Cooperation and Competition Panel but the OFT.

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