Background 

The interaction between the NHS and private healthcare in the UK can be traced back to 1948. Since the late 1980s, various competition reforms have been implemented in the English NHS, culminating in the Health and Social Care Act 2012 (HSCA 2012). This Act, enacted by the Conservative-Liberal Democrat coalition government, introduced significant competition elements into the NHS. The competition provisions were eventually repealed by the Health and Care Act 2022 (HCA 2022).

Legislative Developments

• HSCA 2012: This Act marked a major shift towards competition within the NHS, including Competition and Market Authority (CMA) assessment of NHS mergers. It faced various attempts at repeal, reflecting differing parliamentary views on the role of private healthcare vis-à-vis the NHS.
• HCA 2022: This Act enshrines the policy shift towards integration within the NHS. However, it does not explicitly address the ongoing interaction between the NHS and private healthcare.

Key Insights

• Reduced Focus on Competition and Policy Shift towards Integration

Mergers between NHS bodies are no longer routinely subject to general UK merger control. However, the CMA’s role has been redefined rather than eliminated altogether.

The NHS has been moving towards greater integration, but this may - perhaps counterintuitively - include some aspects of competition given the reframing of the CMA's role.

• Reframing of the NHS oversight landscape 

The recently-constituted Independent Patient Choice and Procurement Panel, linked to NHS England, reviews challenges from independent sector providers regarding NHS service delivery. How this remit will develop poses various questions, for example, about the renewed oversight role of the Secretary of State for Health which was incorporated with the HCA 2022.

• Ongoing NHS-private healthcare Interaction 

Both NHS integration and private healthcare access will continue to have significant implications for healthcare delivery in the UK. Criticisms of "NHS privatisation" in UK parliamentary debates persist and thus ongoing NHS - private healthcare interaction is not clearly linked exclusively to policy directions of competition or integration.

Recommendations

•  Engage with Unresolved Legal Questions 

The extent to which general UK competition laws apply to the NHS remains unclear. Some potential clarity may lie in reframing how competition is defined by reference to the NHS. 

• Acknowledge greater scope for learning between the different countries of the UK

Health is a devolved matter and approaches to the NHS differ. However, the private healthcare market has been defined in UK-wide terms. As a result, NHS - private healthcare interaction may find some common aspects across the UK.

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