Healthcare providers have found new ways of working during the COVID-19 pandemic, with competition laws being relaxed to allow joint efforts to ease the strain on the NHS frontline resources.
As the spread of the deadly disease swept the UK, frontline healthcare came under unprecedented capacity challenges, particularly in hospitals as they battled to cope with the fast-increasing levels of admissions in the early weeks of the crisis.
NHS England responded by commissioning independent healthcare providers to offer additional capacity for patient treatment, particularly in helping the NHS to deliver both urgent and non-urgent operations and treatments to ease the fast-developing backlog.
The requirements of this clearly require providers, in some situations at least, to work together and share commercially sensitive information, which is ordinarily prevented by the terms of the Competition Act 1998. Activities such as the sharing of staff or facilities, or collective planning for the provision of local services, could be interpreted as being anti-competitive.
As a result, the Government passed emergency legislation to help alleviate this problem – The Competition Act 1998 (Health Services for Patients in England) (Coronavirus) (Public Policy Exclusion) Order 2020 specifically allows the following types of agreement, designed to assist the NHS in dealing with the pandemic:
* information sharing in relation to capacity for providing health services of a particular kind during the healthcare disruption period, including information regarding staff and facilities
* coordination as regards the deployment of staff between NHS bodies and independent providers or between independent providers during the healthcare disruption period
* the sharing or loan of facilities for the provision of health services during the healthcare disruption period
* the joint purchasing of goods, materials, vehicles, plant, apparatus, facilities or services (including the services of staff), for the purpose of the provision of health services during the healthcare disruption period
* coordination as regards the provision of health services which involves agreement that during the healthcare disruption period one or more independent providers or NHS bodies are to undertake a particular activity or type of activity either generally or within a particular geographical area, including agreement to limit or expand the scale or range of health services to be or being supplied by one or more independent providers or NHS bodies.
These agreements are to be between NHS England, or another NHS body, and one or more independent providers, or else between independent providers themselves.
Agreements covered by the new legislation must be notified to the Secretary of State within 14 days of them being made, with full information about what services are being provided and which parties are involved.
However, all parties must note that this relaxation of the competition laws relate only to the COVID-19 response. These unprecedented times have given rise to unprecedented circumstances, and the co-operation that is currently being allowed between healthcare providers is a temporary measure to enable the sector as a whole to get through this crisis.
Our specialist team at Sintons has advised healthcare providers across the country in preparing and agreeing such joint working arrangements. If you need any advice or guidance in this area, please get in touch with our team, who remain contactable at all times
