The UK Government publishes an Order to the Competition Act in order to exclude certain arrangements in the healthcare sector to tackle the COVID-19 pressures

Healthcare providers - suspension of competition law provisions to tackle coronavirus pressures*

To ensure that healthcare providers can work together effectively to tackle the coronavirus pandemic, an order has been made to exclude certain arrangements within the healthcare sector from Chapter 1 of the Competition Act 1998. The Chapter 1 provision would normally prohibit agreements, which have the object or effect of restricting competition in the UK.

Suspending that prohibition in certain circumstances, the Competition Act 1998 (Health Services for Patients in England) (Coronavirus) (Public Policy Exclusion) Order 2020 excludes categories of agreement from the scope of Chapter 1 so long as the agreement:

  1. is between designated providers;
  2. relates to a qualifying activity;
  3. is notified to the Secretary of State; and
  4. meets two further conditions.

Each of these requirements is summarised below. The Secretary of State has the power to make this order where there are, as here, ‘exceptional and compelling reasons of public policy’ to do so. The order will remain in place until the Secretary of State publishes a notice confirming that there is no longer a significant disruption or threat of one.

Designated providers

To qualify under the order any agreement must be between:

  1. NHS England and non-NHS providers; or
  2. NHS bodies and independent providers; or
  3. Between independent providers.

Qualifying activity

The agreement must relate to one of five qualifying activities below. In summary, these are:

  1. information sharing relating to capacity for providing health services;
  2. co-ordination to deploy staff between NHS and independent providers, or between two or more independent providers;
  3. sharing / loaning facilities;
  4. joint purchase of goods, materials, vehicles, plant, apparatus, facilities or services;
  5. co-ordinating health service provision.

Notification

Within 14 days of any agreement (or of the date that the order came into force, 27 March 2020, if the agreement was earlier) the Secretary of State must be notified with details of:

  • the names of the parties to the agreement;
  • the nature of the agreement;
  • the date of agreement; and
  • the health services that the agreement relates to.

A public register of agreements will be maintained by the Secretary of State.

Further conditions

For the agreement to comply with the order, there are two further conditions, namely:

  1. The purpose of the agreement must be to assist the NHS in dealing with the effects of coronavirus; and
  2. The object or effect of the agreement must not be to prevent, restrict, or distort competition within the UK.

* Article published on Lexology (click here), republished in e-Competitions with the courtesy of author(s). The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no relationships with a party or related third party. Article will need e-Competitions Board approval before publication.

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Authors

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Robert McGough, Jamie Foster, Esther Venning, The UK Government publishes an Order to the Competition Act in order to exclude certain arrangements in the healthcare sector to tackle the COVID-19 pressures, 27 March 2020, e-Competitions May 2020 - II, Art. N° 94287

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