Competition Law Analysis of Negotiation Strategy between Community Service Providers

Relevant Legislation and Case Law

1. Critically assess and evaluate the inter-relationship between the nature, sources and mechanisms of business law and the environment within which health and social care organisations operate.
2. Demonstrate a critical awareness of the rationale for, and wider implications of, legal and ethical issues concerning health and social care practice and organisational management.
3. Critically evaluate the impact of specific examples of business law and ethics within the context of management practice in health and social care.
4. Negotiate the ethical imperatives and constraints presented by different types of health and social care management and practice situations.

Assignment Question

Adam is a senior manager of a community services provider and is about to begin negotiations with a Clinical Commissioning Group (CCG) over the price of a service for sexually transmitted diseases. The service is not covered by the national tariff. Adam learns that another provider for this service in his region is also negotiating with the CCG about the price of this service.

Adam decides to meet with one of the managers from that provider to discuss some aspects of their respective negotiation strategies. Additionally, they have a “gentleman’s agreement”, that they will not go below a certain price level in their negotiations with the CCG.

By referring to relevant legislation and case law, critically discuss what Monitor’s analysis should take into account to assess the compliance of Adam’s agreement with competition law.

Choice and competition are governed by specific rules which seek to make sure that:

1. Health care providers operate in the best interests of patients.
2. Procurement decisions by commissioners achieve the best results.
3. All providers are treated fairly.
4. No one behaves anti-competitively to the disadvantage of patients.

Monitor’s job as regulator, is to protect and promote the interests of patients by ensuring that the whole healthcare sector works for their benefit.

Hence, in your analysis, you should consider the effect of Adam’s agreement on patients and what Monitor’s analysis would be under competition law. The term ‘competition law’ refers to Chapters I and II of the Competition Act 1998 and Articles 101 and 102 of the Treaty on the Functioning of the European Union. Particular attention should be devoted to the concept of anti-competitive agreement under Chapter I of the Competition Act 1998 and Article 101 of the Treaty on the Functioning of the European Union.