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Between ‘going private’ and ‘NHS privatisation’: patient choice, competition reforms and the relationship between the NHS and private healthcare in England

Published online by Cambridge University Press:  08 May 2019

Mary Guy Open the ORCID record for Mary Guy [Opens in a new window]
Mary Guy*
Affiliation:
Law School, Lancaster University, Lancaster, UK
*
*Author email: m.guy2@lancaster.ac.uk
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Abstract

Patient choice in the context of National Health Service (NHS) reforms in England can refer to the law and policy underpinning patient movement between the NHS and private healthcare sector (in existence since the introduction of the NHS in 1948), as well as recent competition reforms of the Health and Social Care Act 2012, the National Health Service (Procurement, Patient Choice and Competition) (No 2) Regulations 2013 and the 2014 Private Healthcare Market Investigation by the Competition and Markets Authority (CMA). This paper highlights the existence of two discrete, yet related frameworks: the ‘NHS patient – private patient’ framework based on Department of Health, NHS England and latterly Clinical Commissioning Group policy, and the ‘NHS patient choice’ framework, derived from New Labour choice and competition policies and subsequently enshrined by the 2012 Act reforms. The juxtaposition of these frameworks underscores the symbiotic relationship between the NHS and private healthcare, which raises questions about the fitness for purpose of current policy. It also helps explain why the competition reforms are difficult to implement, and suggests that the knitting together of patient choice and competition may unravel following the 2012 Act reforms and CMA private healthcare market development.

Keywords

medical lawNHSHealth and Social Care Act 2012National Health Service (Procurement, Patient Choice and Competition) (No 2) Regulations 2013patient choicecompetition
Type
Research Article
Information
Legal Studies , Volume 39 , Issue 3 , September 2019 , pp. 479 - 498
Copyright
Copyright © The Society of Legal Scholars 2019 

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Footnotes

†

I am extremely grateful for feedback on earlier drafts to Sara Fovargue, Suzanne Ost and Angus MacCulloch, as well as audiences at the EU and Competition Law section of the Society of Legal Scholars Annual Conference (Oxford, September 2016), and the Medical Law, Healthcare and Bioethics stream of the Socio-Legal Studies Association Annual Conference (Newcastle, April 2017). I would also like to thank the anonymous reviewers for their comments and encouragement, which have helped shape the final draft of this paper. Any errors are my own.

References

1 See for example Whiteman, I ‘The fallacy of choice in the common law and NHS policy’ (2013) 21 Health Care Analysis 146CrossRefGoogle ScholarPubMed.

2 An aspect considered by Sheppard, MK ‘Fallacy or functionality: law and policy of patient treatment choice in the NHS’ (2016) 24 Health Care Analysis 279CrossRefGoogle ScholarPubMed.

3 Greener, I ‘Towards a history of choice in UK health policy’ (2009) 31(3) Sociology of Health & Illness 309CrossRefGoogle ScholarPubMed.

4 The NHS is organised in different ways across the four countries of the United Kingdom. For recent discussion see Timmins, N The Four UK Health Systems: Learning from Each Other (London: King's Fund, 2013)Google Scholar.

5 The Introductory Text to the 2012 Act provides that it is ‘An Act to establish and make provision about a National Health Service Commissioning Board [now NHS England] and clinical commissioning groups and to make other provision about the National Health Service in England …’.

6 National Health Service (Procurement, Patient Choice and Competition) Regulations (No 2) 2013, SI 2013/500.

7 This presupposes entitlement to NHS healthcare provision and the means to access private healthcare, so is clearly to be distinguished from instances of restrictions on access to NHS services for overseas visitors, or the ability of patients to exercise choice in respect of specialist commissioning, for example in the context of long-term care where a patient may receive NHS Continuing Care Funding or a Personal Health Budget based on their complex healthcare needs and be entitled to exercise choice in respect of how this money is used. However, such examples could certainly form the basis for further research.

8 L Donnelly ‘Numbers “going private” for surgery soaring as NHS rationing deepens’ The Telegraph (11 August 2018); Derby Hospitals NHS Foundation Trust ‘Going private at Derby Hospitals NHS Foundation Trust’, available at https://www.derbyhospitals.nhs.uk (last accessed 24 January 2019); Oaks Hospital ‘Step-by-step guide to going private at Oaks’, available at https://www.oakshospital.co.uk/about-us/going-private (last accessed 24 January 2019).

9 H Cockburn ‘NHS privatisation soars as private companies win 70% of clinical contracts in England’ The Independent (30 December 2017); N Triggle ‘NHS privatisation: why the fuss?’ BBC Health (20 February 2015), available at https://www.bbc.co.uk/news/health-31435842 (last accessed 24 January 2019).

10 In contrast, patient choice has received more attention from thinktanks. See for example Fotaki, M What Market-based Patient Choice Can't Do for the NHS: The Theory and Evidence of How Choice Works in Health Care (London: Centre for Health and the Public Interest, March 2014)Google Scholar.

11 See for example Odudu, O ‘Are state-owned healthcare providers undertakings subject to competition law?’ (2011) 32(5) ECLR 231Google Scholar.

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14 An exception being the example of private medical insurance in the UK, considered by S Thomson and Mossialos, E ‘Private health insurance and the internal market’ in Mossialos, E et al. (eds) Health Systems Governance in Europe – The Role of European Union Law and Policy (Cambridge: Cambridge University Press, 2010) ch 10CrossRefGoogle Scholar.

15 CMA ‘Press Release – Better information for private patients moves closer’ (1 December 2014), available at https://www.gov.uk/government/news/better-information-for-private-patients-moves-closer (last accessed 25 January 2019).

16 CMA ‘Private healthcare market investigation final report’ (CMA25, 2014).

17 House of Lords Select Committee on the Long-Term Sustainability of the NHS ‘The long-term sustainability of the NHS and adult social care’ Report of Session 2016–17 (5 April 2017) Recommendation 4, para 101; House of Commons Health and Social Care Committee ‘Integrated care: organizations, partnerships and systems’ Seventh Report of Session 2017–19 (11 June 2018) paras 32–44.

18 CQC ‘Consultation 3 – Our next phase of regulation. A more targeted, responsive and collaborative approach. Independent healthcare’ (January 2018), available at https://www.cqc.org.uk/sites/default/files/20180125_next_phase_consultation3_independent_healthcare-final.pdf (last accessed 25 January 2019).

19 Department of Health and Social Care Correspondence ‘Letter to independent healthcare providers’ (8 May 2018) available at https://www.gov.uk/government/publications/patient-safety-letter-to-independent-healthcare-providers (last accessed 25 January 2019).

20 See for example I Johnston ‘NHS privatisation exposed: scale of treatment for paying patients at NHS hospitals revealed’ The Independent (30 September 2017). Patients paying for private treatment in NHS hospitals would be considered within the context of ‘going private’ in the current discussion.

21 Successive National Health Service Acts have included sections governing the Secretary of State for Health's duty regarding facilitating private provision with regard to using NHS facilities. See, for example, National Health Service Act 1977, ss 58–62 as originally enacted, and National Health Service Act 2006, s 267.

22 DoH ‘Guidance on NHS patients who wish to pay for additional private care’ (23 March 2009); DoH ‘A code of conduct for private practice: recommended standards of practice for NHS consultants’ (January 2004).

23 NHS Commissioning Board (now NHS England) ‘Commissioning policy: defining the boundaries between NHS and private healthcare’ (NHSCB/CP/12, April 2013).

24 See for example Leeds CCGs ‘Decision support framework for defining the boundaries between privately funded treatment and entitlement to NHS funding, under a range of circumstances’ (2015), available at https://www.leedsccg.nhs.uk/content/uploads/2018/03/DSF-for-defining-boundaries-between-privately-funded-and-NHS-funding.pdf (last accessed 25 January 2019); NHS Brighton and Hove Clinical Commissioning Group ‘Managing the boundaries of NHS and privately-funded healthcare’ (2015), available at https://www.gp.brightonandhoveccg.nhs.uk/files/managing-boundaries-nhs-and-privately-funded-healthcarepdf (last accessed 25 January 2019); Ipswich and East Suffolk Clinical Commissioning Group ‘Commissioning policy – Defining the boundaries between NHS and private healthcare’ (2017), available at http://www.ipswichandeastsuffolkccg.nhs.uk/Portals/1/Content/Members%20Area/Clinical%20Area/Low%20priority%20procedures/Clinical%20prioritisation%20policies/Private-NHS%20Boundaries%20Policy%20docxFINAL%20IP%20and%20E.pdf (last accessed 25 January 2019).

25 This emerged in April 2016 and combines Monitor, the sectoral regulator with competition functions, and the NHS Trust Development Authority, two bodies created by the 2012 Act.

26 DoH ‘The government's revised mandate to NHS England for 2017–2018’ (March 2018) para 1.1, p 7.

27 Under the National Health Service Act 2006, s 1 as amended by the 2012 Act. Previously, the Secretary of State's duty had related to the provision (rather than promotion) of a comprehensive health service. See further on this point Syrett, above n 12.

28 R (on the application of Hutchinson & Others) v Secretary of State for Health and Social Care & Another [2018] EWHC 1698 (Admin).

29 Section 165 of the 2012 Act operates to remove the limit on the income NHS Foundation Trusts can make from private patients.

30 Timmins, N The Five Giants – A Biography of the Welfare State (London: William Collins, 2017) p 332Google Scholar.

31 This compromise was complicated further by the distinction drawn between ‘pay-beds’ (for private patients) and ‘amenity beds’ (for NHS patients who wished to pay for the privacy of a single room, but would otherwise remain NHS patients). Aneurin Bevan, considered the architect of the NHS, was highly critical of ‘pay beds’, but favoured an increase of ‘amenity beds’: Bevan, A ‘A free health service’ in Bevan, A In Place of Fear (London: William Heinemann Ltd, 1952) p 92Google Scholar.

32 A move described by Bevan in characteristically colourful terms as ‘stuff[ing] their mouths with gold’: see Timmins, above n 30, p 115.

33 CMA ‘CMA demands action from hospitals on private healthcare information’ (31 August 2017) available at https://www.gov.uk/government/news/cma-demands-action-from-hospitals-on-private-healthcare-information (last accessed 25 January 2019).

34 Hirschman, AO Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations and States, (London: Harvard University Press, 1990)Google Scholar.

35 As evidenced by research in Australia. See for example Ward, PR et al. ‘A qualitative study of patient (dis)trust in public and private hospitals: the importance of choice and pragmatic acceptance for trust considerations in South Australia’ (2015) 15 BMC Health Services Research 297CrossRefGoogle ScholarPubMed; Shmueli, A and Savage, E ‘Private and public patients in public hospitals in Australia’ (2014) 115 (2–3) Health Policy 189CrossRefGoogle ScholarPubMed.

36 For example, Norfolk and Norwich University Hospitals NHS Foundation Trust ‘Private patients’, available at http://www.nnuh.nhs.uk/departments/private-patients/ (last accessed 30 September 2018).

37 Wiles, R and Higgins, J ‘Doctor-patient relationships in the private sector: patients’ perceptions’ (1996) 18(3) Sociology of Health & Illness 341CrossRefGoogle Scholar.

38 CMA, above n 15.

39 DoH The NHS Plan – A Plan for Investment, A Plan for Reform (Cm 4818-l, July 2000) para 11.7; NHS Partners Network/NHS Confederation ‘15 Years of concordat: reflection and renewal’ (June 2015), available at http://www.nhsconfed.org/resources/2015/06/nhs-partners-network-15-years-of-concordat-reflection (last accessed 25 January 2019).

40 T Blair ‘We must not waste this precious period of power’, speech given at South Camden Community College, London, 23 January 2003, cited in Z Cooper Competition in Hospital Services, OECD Working Party No 2 on Competition and Regulation (DAF/COMP/WP2(2012)2, 2012).

41 For discussion of this within a healthcare context and more generally see Le Grand, J The Other Invisible Hand – Delivering Public Services through Choice and Competition (Woodstock: Princeton University Press, 2007)Google Scholar.

42 Although this expansion can refer to various aspects of NHS provision, from the specific Independent Sector Treatment Centre (ISTC) programme, to more general, and increasingly widespread, private sector delivery of NHS services. For an overview of the former, see The King's Fund Briefing Independent Sector Treatment Centres (London: The King's Fund, October 2009)Google Scholar.

43 The term used by Davies in an excellent early overview of the 2012 Act reforms. ACL Davies ‘This time, it's for real’ (2013) 76(3) MLR 564.

44 In response to the NHS Future Forum's concerns about the proposed 2012 Act reforms, the coalition government volunteered to put pre-existing New Labour guidance – the NHS Principles and Rules for Competition and Cooperation (2010) – on a statutory footing rather than design new rules governing patient choice, competition and procurement; DoH Government Response to the NHS Future Forum Report (CM 8113, June 2011) para 5.16.

45 DHSC The NHS Constitution for England, available at https://www.gov.uk/government/publications/the-nhs-constitution-for-england (last accessed 25 January 2019).

46 However, with regard to the potentially detrimental effects for the core principles of universal access underpinning the NHS, and concerns that private providers may offer a different level of service to public providers, it might equally be considered that there is at best only a fine line to be drawn between NHS providers being taken into private ownership and private sector delivery of NHS services.

47 For an overview see NHS Partners Network/NHS Confederation ‘Working together since 1948: celebrating 70 years of partnership between the NHS and independent sector’ (July 2018), available at https://www.nhsconfed.org/resources/2018/07/working-together-since-1948-celebrating-70-years-of-partnership-nhs-and-independent-sector (last accessed 25 January 2019).

48 BBC ‘Hinchingbrooke hospital: Circle to withdraw from contract’ (9 January 2015), available at http://www.bbc.co.uk/news/uk-england-cambridgeshire-30740956 (last accessed 25 January 2019).

49 Within the wider context of informed consent, Whiteman suggests the use of the word ‘choice’ is ‘fallacious’, and that merely expressing ‘preference’ is a more accurate reflection of the patient's situation: Whiteman, above n 1.

50 In response to Whiteman, Sheppard suggests that patient choice can be ‘functional’ by providing a destabilisation mechanism at all three levels of healthcare – from government policy (macro level), via purchasing/commissioning decisions (meso level) to the doctor-patient relationship (micro level): Sheppard, above n 2.

51 In contrast to other healthcare systems, where health insurance may be complementary (France) or even mandatory (the Netherlands). See further Thomson and Mossialos, above n 14.

52 Monopolies and Mergers Commission (MMC) ‘Private medical services – a report on agreements and practices relating to charges for the supply of private medical services by NHS consultants’ (1994) p 15.

53 A number of private hospital groups recorded in their annual reports that the increased demand for private provision within the NHS and this new income from the NHS was used to compensate for falls in private patient numbers. See Arora, S et al. Public Payment and Private Provision – the Changing Landscape of Health Care in the 2000s (London: Institute for Fiscal Studies / Nuffield Trust, May 2013), p 30Google Scholar.

54 G Plimmer ‘UK private hospitals suffer as NHS brings work back in house’ The Times (21 July 2018); D Campbell ‘NHS bosses urge hospitals to send patients to private firms’ The Guardian (30 August 2018).

55 Jackson, above n 13, at fn 2 notes that ‘The Code of Conduct for Private Practice: Recommended Standards of Practice for NHS Consultants (London: Department of Health, 2004) replaced The Code of Conduct for Private Practice: guidance for NHS staff (London: Department of Health, 2003), which itself replaced Management of private practice in health service hospitals in England and Wales (London: Department of Health 1986)’.

56 NHS England, above n 23.

57 DoH (2009) and (2004), both above n 22.

58 In contrast to ‘co-payment’, which is permitted by virtue of the Government passing regulations which require patients to make a contribution to the overall cost of NHS-commissioned care. See NHS England, above n 23, at p 13. An example of ‘co-payment’ in this definition would be the levying of prescription charges. However, the terminology is contested: this paper uses the definitions and terminology of NHS England to discuss ‘co-funding’ and ‘co-payment’. Elsewhere, ‘co-payment’ has been used to describe what may be considered a ‘co-funding’ arrangement using NHS England terminology. See for example Weale, A and Clark, S ‘Co-payments in the NHS: an analysis of the normative arguments’ (2010) 5 Health Economics, Policy and Law 225CrossRefGoogle ScholarPubMed.

59 Ibid.

60 Ibid. NHS top-ups and voucher schemes for specified unfunded drugs are also referenced.

61 M Richards ‘Improving access to medicines for NHS patients – a report for the Secretary of State for Health’ (November 2008).

62 NHS England, above n 23, pp 9–10.

63 Ibid, para 3, p 8.

64 DoH (2004), above n 22, paras 5.5 and 5.6, p 11.

65 Ibid, para 2.9, p 3.

66 BMA ‘The interface between NHS and private treatment: a practical guide for doctors in England, Wales and Northern Ireland. Guidance from the BMA Medical Ethics Department’ (May 2009), p 3.

67 DoH (2004), above n 22, para 2.10; BMA above n 66, p 4.

68 BMA, above n 66, p 5.

69 See ‘Table A: Pathways into Private Treatment’, p 4; OFT ‘The patient journey – research to support the OFT's private healthcare market study’ (August 2011).

70 Although studies elsewhere can provide insight into patient motivations for selecting private over public healthcare – see discussions from Australia at n 35 above. See also Anell, A ‘The public-private pendulum – patient choice and equity in Sweden’ (2015) 372(1) New England Journal of Medicine 1CrossRefGoogle ScholarPubMed.

71 OFT, above n 69, p 4.

72 Ibid, p 19.

73 Ibid, p 6.

74 Bíró, A and Hellowell, M ‘Public-private sector interactions and the demand for supplementary health insurance in the United Kingdom’ (2016) 120(7) Health Policy 840CrossRefGoogle ScholarPubMed.

75 Kiil, A ‘What characterises the privately insured in universal health care systems? A review of the empirical evidence’ (2012) 106(1) Health Policy 60CrossRefGoogle ScholarPubMed.

76 National Health Service (Co-funding and Co-Payment) HC Bill 2017–19 available at https://services.parliament.uk/Bills/2017-19/nationalhealthservicecofundingandcopayment.html (last accessed 25 January 2019). The second reading has been rescheduled to a date to be announced, having been rescheduled from May and June 2018.

77 For a discussion, see Syrett, above n 12, pp 27–31.

78 See DoH The Handbook to the NHS Constitution for England (27 July 2015) pp 68–74.

79 NHS Constitution, above n 45, Section 3a, p 6.

80 DoH, above n 78. This particular ‘right’ is derived from Part 8 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) Regulations 2013, SI 2013/2891.

81 See NHS Commissioning Board (now NHS England) Commissioning Policy: Choice NHSCB/CP/11, April 2013, para 8, p 6.

82 Monitor Substantive Guidance on the Procurement, Patient Choice and Competition Regulations (19 December 2013) p 8.

83 2013 Regulations, regs 2 and 3.

84 2013 Regulations, regs 5–9.

85 2013 Regulations, reg 10.

86 A Sánchez Graells ‘New rules for health care procurement in the UK: a critical assessment from the perspective of EU economic law’ (2015) 1 PPLR 16. With regard to competition law see further Guy, M Competition Policy in Healthcare – Frontiers in Insurance-Based and Taxation-Funded Systems (Cambridge: Intersentia, 2019) ch 2CrossRefGoogle Scholar.

87 Smith, S, Owens, D and Heard, E ‘New procurement legislation for English healthcare bodies – the National Health Service (Procurement, Patient Choice and Competition) Regulations (No 2) 2013’ (2013) 4 PPLR 109Google Scholar.

88 2013 Regulations, reg 11.

89 2013 Regulations, reg 12.

90 SI 2012/2996. As amended by the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendments) Regulations 2013, SI 2013/2891.

91 2013 Regulations, reg 13.

92 2012 Regulations, Standing Rule 39.

93 2012 Regulations, Standing Rule 42.

94 2012 Regulations, Standing Rule 43.

95 2012 Regulations, Standing Rule 39.

96 2012 Regulations, Standing Rule 40(1).

97 2012 Regulations, Standing Rule 40(2).

98 2012 Regulations, Standing Rule 41.

99 2013 Regulations, regs 11 and 12.

100 2013 Regulations, reg 13.

101 Monitor Case CCD 05/13 Commissioning of elective services in Blackpool and Fylde and Wyre Final Report.

102 As featured in NHS information leaflets and public information films. See for example British Pathé ‘New National Health Service’ (1944–1945), available at https://www.britishpathe.com/video/new-national-health-service (last accessed 25 January 2019).

103 Greener, above n 3.

104 See Dorset Private GP Service, available at http://dorsetprivategp.co.uk/ (last accessed 25 January 2019).

105 D Campbell ‘Fears of two-tier NHS as GPs allow fee-paying patients to jump the queue’ The Guardian (8 February 2017).

106 J Gornall ‘The truth about cash for referrals’ (2015) 350 BMJ h396; F Godlee ‘Medical corruption in the UK’ (2015) 350 BMJ h506.

107 CMA, above n 16, s 10.4.

108 Monitor ‘Improving GP services: commissioners and patient choice’ (1 June 2015).

109 Ipsos Mori ‘Exploring patient choice in GP services’ (December 2014).

110 L Donnelly ‘NHS officials float idea of banning patients from going to A&E without prior permission’ The Telegraph (13 October 2017).

111 Monitor ‘Choice and competition toolkit: scenarios for GPs working together’ (1 June 2015).

112 DoH (2009), above n 22, p 10, case studies (a) and (b).

113 Ibid, p 10, case study (c).

114 Ibid, p 10, case study (d). See also NHS England, above n 23, para 11, p 10.

115 Regulation 13.

116 NHS ‘NHS e-Referral Service’ available at https://nhs.uk/using-the-nhs/nhs-services/hospitals/nhs-e-referral-service/ (last accessed 17 April 2019).

117 The rules governing state aid (broadly, government subsidies) are distinct from patient choice, so are beyond the scope of this paper.

118 Prosser, T The Limits of Competition Law (Oxford: Oxford University Press, 2005) p 9Google Scholar.

119 Tritter, J et al. Globalisation, Markets and Health Policy – Redrawing the Patient as Consumer (Abingdon: Routledge, 2010)Google Scholar. See also comments by Lord Kerr about the more active role of patients who are increasingly treated as consumers in Montgomery v Lanarkshire Health Board (General Medical Council intervening) [2015] UKSC 11 at para 75.

120 These permutations reflect the separation of purchasing and providing functions which characterised successive competition and market reforms from the ‘NHS internal market’ in 1990 via New Labour reforms, particularly the expansion of private sector delivery of NHS services and patient choice policies, to the 2012 Act reforms. See further Davies above n 43, and Guy, above n 86, ch 1.

121 This is developed further in Guy, above n 86, and is a modified version of categories used to delineate the private healthcare market and discuss the applicability of competition law. See respectively OFT ‘Private healthcare market study’ (December 2011) OFT1396 at p 13, and O Odudu ‘Competition law and the National Health Service’ Blackstone Chambers Competition Bulletin (8 October 2012), available at https://competitionbulletin.com/2012/10/08/competition-law-and-the-national-health-service/ (last accessed 25 January 2019).

122 Choice of insurer is more developed in other countries, such as the Dutch system of mandatory health insurance.

123 DHSC ‘NHS principles and rules for cooperation and competition’ (2010) available at https://www.gov.uk/government/publications/principles-and-rules-for-cooperation-and-competition (last accessed 25 January 2019). These were overseen by the Cooperation and Competition Panel, a DoH body (https://www.ccpanel.org.uk/ last accessed 25 January 2019). The Cooperation and Competition Panel was described by Ben Bradshaw MP as ‘in effect, the NHS’ own Competition Commission’ Hansard HC Deb, col 66WH, 24 February 2009. (The Competition Commission was subsumed into the CMA in 2014.)

124 CMA Case CE/9742-13 Decision of the Competition and Markets Authority – Unfair pricing in respect of the supply of phenytoin sodium capsules in the UK (7 December 2016) p 12.

125 Ibid, para 4.190, p 242.

126 2012 Act, s 79(5), based on the Enterprise Act 2002, s 30(1)(a). See further Guy, above n 86, ch 4.

127 Patient choice can be linked with wider aspects of healthcare modernisation, such as patient empowerment, again with varying degrees of success. See for example Mol, A The Logic of Care and the Problem of Patient Choice (Abingdon: Routledge, 2008)CrossRefGoogle Scholar.

128 See European Commission, Expert Panel on Effective Ways of Investing in Health (EXPH), ‘Competition among health care providers in the European Union – investigating policy options’ (17 February 2015), section 1.2.1.

129 For further discussion, see Office of Health Economics (OHE) ‘Competition in the NHS’ (January 2012).

130 EXPH, above n 128, pp 9 and 10.

131 Ibid.

132 Ibid.

133 Ibid, para 37.

134 OHE, above n 129, at 10.

135 DoH, above n 44, p 5.

136 It is worth noting that EU free movement case law regarding patients accessing treatment in different Member States (‘health tourism’) has received some attention in discussions of competition law and healthcare. However, this is beyond the scope of the present discussion of patient choice within the English system, other than to note that NHS patients may be considered to have a ‘choice’ of receiving treatment abroad under free movement case law which finds expression as a ‘right’ within section 3a of the NHS Constitution (above n 45).

137 Treaty on the Functioning of the European Union (TFEU), Art 101; Competition Act 1998, s 2 – also known as the “Chapter I” prohibition.

138 TFEU, Art 102; Competition Act 1998, s 18 – also known as the “Chapter II” prohibition.

139 See Van de Gronden, JW and Rusu, CS ‘EU competition law and policy and health systems’ in Hervey, TK, Young, CA and Bishop, LE (eds) Research Handbook on EU Health Law and Policy (Cheltenham: Edward Elgar, 2017) ch 11Google Scholar.

140 See the guidance which the CMA adopted from its predecessor, OFT ‘Competition law and public bodies’ OFT1389.

141 Odudu, above n 11. See also Guy, above n 86, ch 2.

142 See CMA ‘Prioritisation principles for the CMA’ (CMA16, April 2014).

143 ‘Competition policy is a tool at the service of consumers. Consumer welfare is at the heart of our policy and its achievement drives our priorities and guides our decisions’: Joaquin Almunia, Competition and Consumers: the future of EU competition policy, Speech at European Competition Day, Madrid, 12 May 2010. More recently, in a speech by the Director-General for Competition at the European Commission, J Laitenberger ‘Enforcing EU competition law: principles, strategy and objectives’, Fordham University, 44th Annual Conference on International Antitrust Law and Policy, New York City, 15 September 2017. See further Albæk, S ‘Consumer welfare in EU competition policy’ in Heide-Jørgensen, C et al. (eds) Aims and Values in Competition Law (Copenhagen: DJØF Publishing, 2013)Google Scholar.

144 See for example Daskalova, V ‘Consumer welfare in EU competition law: what is it (not) about?’ (2015) 11(1) Competition Law Review 133Google Scholar, Claassen, R and Gerbrandy, A ‘Rethinking European competition law: from a consumer welfare to a capability approach’ (2016) 12(1) Utrecht Law Review 1CrossRefGoogle Scholar and MacCulloch, A ‘The consumer and competition law’ in Howells, G, Ramsay, I and Wilhelmsson, T (eds) Handbook of Research on International Consumer Law (Cheltenham: Edward Elgar, 2nd edn 2018) ch 4Google Scholar.

145 Averitt, NW and Lande, RH ‘Using the “consumer choice” approach to antitrust law’ (2007) 74(1) Antitrust Law Journal 175Google Scholar.

146 Sauter, W ‘The impact of EU competition law on national healthcare systems’ (2013) 38(4) EL Rev 457Google Scholar.

147 Davies, above n 43.

148 2012 Act, s 72.

149 2012 Act, s 73.

150 2012 Act, s 79.

151 Established under the 2012 Act, s 75.

152 Above n 90.

153 See NHS Improvement's Decisions to accept undertakings by NHS Fylde and Wyre and NHS Blackpool CCGs: Monitor, above n 101.

154 Monitor, above n 101, para 4.6.

155 CMA, above n 16.

156 CMA ‘Private Healthcare Market Investigation Order (as amended)’ (28 February 2017), part 4 Information, para 21.1.

157 CMA, above n 33.

158 See for example CMA, ‘Directions to Royal Devon and Exeter NHS Foundation Trust issued under the Private Healthcare Market Investigation Order’ (31 August 2017).