Mary Guy – Sectoral Regulation in Dutch and English Healthcare – Challenges and Opportunities in Changing Times

Over the course of this BARSEA comparative public law and European legal identity project, I have presented one aspect of my PhD research – sectoral regulation in Dutch and English healthcare – from different perspectives. During the workshop at Essex in September 2016, I presented an overview of the background to the research and set out some of the themes which emerged. I also outlined the contact I had had with non-academic actors – including policy advisors working for the regulators – during my PhD and how this had shaped the research. At the workshop in Brussels in December 2016, I focused on this latter aspect, namely engagement with non-academic actors. I explored this in detail by elaborating known and unknown engagement opportunities in the Netherlands and England. “Known” referred both to instances where contact had been made, and where there was potential for contact, while “unknown” referred to possible engagement opportunities where only the broad contours of engagement were known (for example, with organisations such as the European Commission, the Organization for Economic Cooperation and Development (OECD), or the ministries for health in both countries). I also identified three possible engagement strategies – engagement with practitioner audiences, coordinating a workshop for academics and practitioners and collaborative research with practitioners – and evaluated these in light of an assessment framework. This comprised four aspects: funding, purpose of the engagement, how to establish/maintain contact, how to disseminate information and a concluding “SWOT” analysis.

I drew these aspects together in my final presentation of this project at the British Academy in March 2017 by discussing my subject focus – sectoral regulation in Dutch and English healthcare – in terms of challenges and opportunities in changing times. I consider in particular the period 2012 – 2017 in terms both of changes in both countries relating to the competition reforms in healthcare and changes in my professional status and institution and the effects of this for my research.

In the Netherlands, this period has seen no comprehensive update of competition guidelines for the healthcare sector, but incremental changes in the Dutch Authority for Consumers and Markets (ACM)’s approach across cases involving primary care providers and hospital merger. As regards Dutch healthcare sectoral regulation, it may be possible to start to speak of two phases. Firstly, the period between 2006 and 2015, in which the NZa had competition powers which were considered, variously, complementary to and conflicting with, the ACM’s competence. Secondly, the current period starting in 2015 with the transfer in legislation of the majority of the NZa’s competition powers to the ACM following critical reviews in 2014 of the NZa’s status as an independent regulator relative to the Minister for Health, Wellbeing and Sport.

In England, the period 2012-2017 started with possible convergence between the Private Healthcare (PH) sector and the NHS, which had been traditionally distinct in terms of competition reform and oversight. For example, the CMA’s predecessor had been sketching outlines for opening up public sector markets apparently in parallel to the development of the Health and Social Care Act 2012 (HSCA 2012). Indeed, subsequent developments, such as the PH market investigation and wider concurrency reforms of the Enterprise and Regulatory Reform Act 2013 made reference to the existence of Monitor (now NHS Improvement) as sectoral regulator. However, the controversy surrounding the HSCA 2012, and the linking of “competition” and “the NHS” was such as to mark a decisive move away from such convergence. Thus the National Health Service (Procurement, Patient Choice and Competition) Regulations (No.2) 2013 tone down explicit references to competition – with an emphasis on balancing “patient interests”. More significantly in terms of oversight, the Competition Act 1998 (Concurrency) Regulations 2014 operate to reinstate the original distinction which existed prior to the HSCA 2012 – reserving cases involving NHS healthcare provision to NHS Improvement, and by implication, oversight of the PH sector to the CMA. Furthermore, these changes have been accompanied by a significant change in policy: from “choice and competition” to “integration”. Consequently, what we have now as a result of the HSCA 2012 is a framework designed around previous organisational forms within the NHS and concerns that this may inhibit new organisational structures and collaborations.

In terms of my research focus over the 2012-2017 period, this has evolved from an initial, heavily doctrinal analysis of the legal provisions governing the relationship between competition authority and regulator to include considerations of the developing role of health ministers. This development has coincided with completion of my PhD at the University of East Anglia (UEA), which enabled me to establish contact with Dutch academics via the Centre for Competition Policy (CCP) and taking up a lectureship at Lancaster University. My focus is moving towards practical application of this theoretical research as I am becoming involved in collaborative work with NHS managers via the Lancaster Health Hub to draft an article for practitioner journals and potentially host a knowledge exchange event involving practitioners and academics.

Dr Mary Guy

Lecturer, University of Lancaster

(Suggested citation: M. Guy, “Sectoral Regulation in Dutch and English Healthcare – Challenges and Opportunities in Changing Times” available at https://europeancommonwealth.org/2017/04/07/mary-guy-sectoral-regulation-in-dutch-and-english-healthcare-challenges-and-opportunities-in-changing-times)