Earlier this month Monitor published its guidelines for providers of NHS-funded services on how Monitor will apply the patient choice and competition rules. These can be found here. Monitor has also published some helpful hypothetical scenarios showing how it applies this guidance, which can be found here. The scenarios cover market sharing, price fixing, bid rigging, other types of anti-competitive agreements, abuse of dominance and integrated care.

In summary, arrangements between providers (and possibly commissioners) that are on the face of it anti-competitive may nonetheless be permitted if they improve the provision of healthcare services, are necessary for that improvement and do allow the elimination of competition for the provision of those services. In other words, they will be allowed if they are necessary for the provision of better services to patients. Monitor and the Competition & Markets Authority (the CMA) enforce competition law in the healthcare sector. In particular Monitor advises the CMA on patient benefits. Therefore it is important for providers to understand this guidance. Also a provider’s NHS provider licence requires that it complies with the principles of the law prohibiting anti-competitive agreements, and compliance with this licence is regulated by Monitor.