Competition Law and Anticompetitive Professional Behaviour Affecting Health Care
| Published date | 01 July 1992 |
| Date | 01 July 1992 |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb00926.x |
| Author | Frances Miller |
THE
MODERN LAW REVIEW
Volume
55
July
1992
No.
4
Competition Law and Anticompetitive Professional
Behaviour Affecting Health Care
Frances
Miller"
Introduction
Health care markets and overt competition were newcomers to the National Health
Service
in
199
1,
and neither the profession nor the public had been accustomed
to thinking about competition
-
with
its overtones of commercialism
-
as anything
desirable
in
conjunction
with
health care. Decades of conditioning were more likely
to make them recoil from the notion of competition as appropriate
in
the National
Health Service (NHS) at all. The Conservative government espoused limited health
sector rivalry, however, and deliberately imposed structural change introducing
market forces to the NHS.' This legislative reform, designed to stimulate NHS
efficiency and innovation, prompted doctors and others to re-examine their
preconceptions about acceptable professional behaviour.
It
also raised interesting
questions about potential legal challenges to anticompetitive activity affecting health
care.
In
the past. British health professionals have been routinely encouraged to engage
in
certain forms of anticompetitive activity.
For
example, the British Medical
Association
(BMA)
frankly exhorted doctors to refuse to co-operate
with
the
government's introduction of NHS internal markets.'
It
also openly advises doctors
to act
in
concert
with
respect to the patients they seeJ and the prices they charge.S
4'Protessor
of
Law. Boston University School of Law and Professor
of
Public Health. Boston University
School
of
Medicine.
Research for this article in Great Britain was supported in part by a Fulbright Scholar Grant and by the
research hospitality
of
Wolfson College. Cambridge. and the King's Fund Institute.
I
would like
to
thank
I.ynnc Fosh. Margaret
Goose.
Andrew Grubb. Tony Harrison. Joseph Jacob. Carol Lee, Bob
Lee.
Rudolf
Klein. Dcrck Morris. Julia Neuhcrgcr. Dick Stockford. Bryan Rayner. Geoffrey Rivett and Richard Whish
for their valuable comments on an earlier draft.
I
National Health Service and Community Care Act
1990.
2
ct
J.
Jacoh. 'Lawyers go
to
Hospital'
[
19911
PL
255.
predicting that structural changes
to
the NHS
'arc likely
to
prove a fertile ground for lawyers.'
3
See
text accompanying ns 58-78
below.
4
The General Medical Council's
Pro/i~.v.viomr/
Coudicc.!
em/
Di.vcip/itw:
Fitrrcw
to
Prcicyisc,
states. 'a
specialist should not usually accept a patient without reference from the patient's general practitioner.
It
the specialist does decide
to
accept a patient without such a reference. the specialist has the duty
immediately
to
inform the general practitioner
of
his findings and recommendations before embarking
on
treatment'
(1991)
p
22.
The GMC's guidance is echoed by the British Medical Association's
handbook.
f/ii/owp/iy
ottd
Pnrcricy,
of
Mc~lic~r/
E/hic:r
(
1988)
at pp
13-
14.
5
The BMA regularly publishes 'recommended
fees'
for
its members
to
charge for private sector services.
771~
MOd('rt1
OI\I.
RcI.~~,II,
5.514
JUI~
I992
0026-7961
45
3
The
Modern
Law
Review
[Vol.
55
These kinds of anticompetitive conduct are known
in
competition law terminology
as boycotting, market division and price fixing, and such concerted behaviour would
risk being characterised as illegal
per
se
under
US
antitrust law.6 Moreover,
similar market-distorting supply restrictions involving competitors
in
most other
businesses and services would
-
at least
in
theory
-
have to be reported to the
Office of Fair Trading under Britain's Restrictive Trade Practices Act.' In any
event, the NHS reforms made these and other anticompetitive activities
in
the health
field more vulnerable to government scrutiny of monopolies and anticompetitive
practices. Increased visibility for health care competition could also invite private
parties to allege violations of competition law or common law restraints of trade.
Finally, some anticompetitive conduct involving the NHS could conceivably provoke
challenge under European Community law.
Americans find organised medicine's reaction to the
1990
legislation introducing
competition principles to the NHS strikingly familiar. The BMA's opposition to
the reformsX paralleled that of the American Medical Association (AMA) and its
affiliates
in
the
1970s
when cost containment initiatives and alternative methods
for delivering care began to make headway
in
the
US
health sector.y In both
countries, the medical associations have historically opposed change on the basis
of 'ethical' principles,'O but the motivations fuelling resistance seemed to have as
much to do with preserving physician autonomy and economic self-interest as they
did
with
patient well-being1I
In the
1970s,
this kind of opposition
in
the
US
-
and that of other professional
bodies to other aspects of competition
-
had a result the professional associations
could hardly have wished to bring upon themselves;
it
exposed them and their
members for the first time to pervasive scrutiny under antitrust law." Antitrust
legislation
-
much like competition law
in
the
UK
-
is designed to prevent private
actors from improperly manipulating markets to gain economic control. British
competition law enforcement has generally been geared toward remedying specific
market failures, rather than toward the American objective of preserving competition
so
as to achieve allocative efficiency. Notwithstanding cultural differences between
British and American health professionals which make direct comparisons risky,
-
6
7
8
9
10
II
12
13
See eg
Arizona
v
Mariropa
County
Medical
Society
(1982) 457
US
332.
Restrictive Trade Practices Act 1976 (RTPA). Agreements restraining medical and certain other
professional services are specifically exempted from registration requirements via Schedule
I
of the
RTPA.
Special Report
on
the Government
'.v
White
Paper 'Working for
Patients.
'
British Medical Association
(
1989).
See eg
Assoriation ofAmerican fhysirians
and
Surgeons
v
Weinhr,rger
(ND
Ill.
1975) 395 F Supp 125:
aff'd mem (1975) 423
US
975.
See eg
Wilk
v
Amcv-icun Medical Association
(7th Cir, 1983) 719 F 2d 207. cert den (1984) 467
US
1210.
See generally J. Berlant.
Profession and
Monopo/y
(Berkeley:
U
Cal Press, lY75) pp 64-127. But
cf
J.
Jacob,
Docrors and Rules
(London: Routledge, 1988) pp 28-88, 109- 143. submitting that doctors
constitute a professional elite motivated primarily by the morality
of
service rather than by economic
reward.
For a general overview, see J. Sneed and
D.
Marx.
Anfitrust: Challenge
ofthe
Health Cure Field
(Washington: National Health Lawyers Ass'n.
1990).
See
also 'Antitrust and Heallh Care' (Symposium)
(
1988)
5
l(2)
hvc-
and
Conremporary Problems.
See generally
E.
Gellhorn,
Antitrust
hw
and
economic.^
(St Paul, MN: West. 1986); A. Nedle.
The
Antirrusr
hws
ofthe
Unired
States
of Amerii,cr: A Studs of
Competition
Enfiwced
by
hw
(Cambridge:
Cambridge
U
Press, 1%2); L. Sullivan,
Antitrust
(St Paul: West. 1977) pp 1-13;
R.
Whish.
Comperition
kin,
(London: Butterworths, 2nd ed. 1989) pp
3-21.
454
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