My PhD provides a timely insight into how the competition provisions of the Health and Social Care Act 2012 (HSCA 2012) affect the National Health Service (NHS) in England (but do not extend to other countries of the UK) by reference to the Dutch experience of applying very similar legislation and implementing an equivalent regulatory framework. I considered the different ways in which competition has developed in Dutch and English healthcare, before examining specific provisions relating to competition law, merger control and regulatory rules governing the relationship between the Competition and Markets Authority (CMA) and the new sectoral regulator, NHS Improvement (formerly Monitor).
Why comparative law?
Although the HSCA 2012 builds on NHS reforms which had been developing over 20 years, its recent enactment meant that there were few cases to draw on during the time I completed my PhD (2012-2016). I therefore decided to conduct comparative research to gain insights into three aspects in this area.
Firstly, as a way to understand how cases might develop – that is, which aspects of the healthcare sector might attract scrutiny.
Secondly, to see where difficulties may arise in applying general competition law to the healthcare sector - for example, where there is a need to distinguish anticompetitive agreements from other types of cooperation, as healthcare relies heavily on collaborative relationships.
Thirdly, as competition reforms in healthcare are influenced by competition in other sectors (such as telecommunications and energy), to examine whether “healthcare” as a sector shared common points across different countries, or whether the different models of healthcare system in different countries may prove critical. The juxtaposition of the Netherlands and England - as indicating a Bismarck insurance model and the archetypal Beveridge taxation-funded system, respectively – is thus important for encompassing the main typology of healthcare systems across EU Member States.
Choice of jurisdictions
In choosing to compare the Netherlands and England, my choice was concerned with the context of each country’s healthcare system, as distinct from jurisdictional issues. Thus questions of comparing common and civil law jurisdictions were not relevant to this piece of research. This is because the law I examined in my thesis is very similar: Dutch and UK competition law is transposed from the equivalent provisions of the Treaty on the Functioning of the European Union (TFEU). Where comparisons of competition law exist in academic literature, these tend to be at a more general level and typically include US antitrust law. Comparisons between two EU Member States – effectively operating within a common competition regime – may, however, reveal interesting divergences based on cultural aspects or contextual characteristics. Healthcare system organisation offers an important example of this as a sector where there is no EU-level harmonisation. Indeed, it has been suggested that what may be emerging are “Euro-national competition rules for healthcare” (see Johan van de Gronden and Erika Szyszczak, 'Introducing Competition Principles into Health Care Through EU Law and Policy: A Case Study of the Netherlands'  22(2) Medical Law Review 238-254).
The difference between Bismarck and Beveridge systems nevertheless has implications for the extent and nature of competition, so a recurrent question is how this affects emerging competition policies. This difference can be contrasted with the similar approaches taken in both countries and informed by the experience of developing competition in other sectors, including the establishment of sectoral regulators. Thus, in Zweigert and Kötz’s terminology, elements of the comparison suggest both presumptions of difference and similarity.
Comparative studies of healthcare reforms can be found in political science or health economics literature and so typically look beyond the confines of jurisdiction to consider countries as diverse as the US, UK and the Netherlands. However, examinations of the law underpinning healthcare reform in the light of comparisons with other countries also exist. Here too the issue of distinctions between insurance and taxation-based models may arise, but these may be combined with common points in terms of language, culture and legal system – hence existing comparisons tend to revolve around the US, Canada and the UK (see for example, Eleanor D. Kinney, The Affordable Care Act and Medicare in Comparative Context (Cambridge University Press 2015)). My decision to compare the Netherlands and England to reveal something new can therefore be seen as an original and strategic choice.
Comparative law as a research method
In general terms, at least three aspects of comparative law methodology can be identified in my PhD: transplant and harmonisation approaches, macro and micro approaches and functional equivalence.
- 1. Transplant, harmonisation, or neither?
It was clear to me from the outset that the purpose of my comparison was not to argue for a transplant approach – broadly, that England should adopt the Dutch system, or vice versa. Rather, my intention was to establish if “healthcare” as a sector (regardless of the Bismarck/Beveridge distinction) yielded specific considerations with regard to designing a competition policy. Consequently, in view of the difference between the Bismarck and Beveridge healthcare models, scope for a “harmonisation” approach had greater relevance based on the influence in both countries of the experience of developing competition in other sectors. So, for example, the concept of Significant Market Power developed in EU telecommunications regulation was “imported” as a tool in Dutch healthcare regulation.
However, in contrast to other sectors such as energy, where EU influence is clear, Article 168(7) TFEU provides that healthcare system organisation is a matter for Member State competence. As a result, competition reforms in both the Netherlands and England include enacting additional provisions to institute comprehensive competition regimes to subject both healthcare providers and purchasers to equivalent levels of scrutiny, which is not found in EU case law.
- 2. Micro and/or macro approaches?
My PhD relied significantly on doctrinal analysis which suggests a micro approach. In view of the substantive similarities between the two countries’ competition laws, my purpose was not to conduct a macro analysis examining distinctions between the Dutch and English legal systems: hence I did not consider, for example, treatment of appeals of competition authority decisions. So macro elements also appear. My purpose was to look at the doctrinal provisions within the wider context of healthcare systems.
- 3. Functional equivalence – cultural approaches
In one chapter of my PhD I examined how the new sectoral regulators for healthcare should work with the competition authorities to apply competition law. This involved engaging with the “functional equivalence” approach to comparative law insofar as the new sectoral regulators for healthcare can be described as performing equivalent functions (also described as the ‘functional-institutional approach’. See A. Esin Örücü, ‘Methodology of comparative law’, Chapter 46 in ed. J.M. Smits, Elgar Encyclopedia of Comparative Law, Second Edition (Edward Elgar, 2014). Broadly, these are twofold: contributing to competition oversight alongside the competition authority and being involved alongside the Minister for Health with wider aspects of healthcare system organisation which may impact competition, such as tariff-setting.
However, the limits of functional equivalence of competition authorities and sectoral regulators were revealed by considering aspects of each country’s culture. For example, there is a strong cultural phenomenon in England which suggests that giving the competition authority exclusive oversight of the NHS is an extremely politically sensitive matter and so appears unlikely to be pursued.
Structuring the comparative analysis
Having elaborated the research questions with a view to understanding the operation and interaction of the laws underpinning competition in healthcare, it was useful to establish frameworks to give further structure to the comparisons of the thesis. I considered several permutations: for example, distinctions between general medical care and long-term care and between public and private healthcare provision. Each of these distinctions had merit, but risked linking the thesis discussion too closely with only one of the two countries, arguably undermining the scope for comparative analysis. For example, the distinction between general medical care and long-term care reflects the ‘cure’/ ‘care’ distinction drawn in the Netherlands, but whether it maps as neatly onto the distinction between “health” and “social care” in England is less clear. The distinction between public and private healthcare sites the discussion firmly in England with less scope for drawing on the Dutch experience.
What was needed is a more flexible approach to accommodate discussion of these aspects and to enable discussion of competition in healthcare among practitioner and academic audiences in both countries and beyond.
With this in mind, I developed discussion frameworks which drew on influences familiar to health and competition lawyers and which could reflect experiences in both the Netherlands and England. These included a “healthcare structure” comprising macro, meso and micro levels (relating to state intervention, purchasers and providers) which is more generally found within health law literature, but which is useful to explain distinctions drawn between purchasers and providers in competition cases as well.
Conducting comparative research
In establishing the parameters of the comparative aspect of my research, I was mindful of how the comparative research could be conducted and presented. I was able to draw on my background as a professional translator to decide how best to translate Dutch legislation and literature for an English-speaking audience. However, the choice of the Netherlands and England proved fruitful in terms of availability of resources in Dutch and English. These included legislation, policy documentation and academic criticism – with agencies such as the Dutch Authority for Consumers and Markets (ACM) having some translations available of their briefings, and Dutch academics frequently writing in both English and Dutch. Through contacts made at workshops and conferences I was able to arrange research visits to the Netherlands during the course of my PhD which helped to consolidate this comparative research.
This blog has also been published by the BACL on their website at https://british-association-comparative-law.org/2017/05/05/mary-guy-comparative-law-research-phd/