What Other Regulators Can Teach Monitor: The Expertise of a Sector Regulator Provides Patients with Some Protection

Article excerpt

Much of the opposition to the coalition government's proposals for the NHS has focused on the role of competition, in partitular the powers of Monitor to enforce competition law. Although some of Montier's functions - such as price-setting and compliance with the principles and rules for cooperation and competition-already exist within the Department of Health, putting them on a statutory footin within a powerful independent regulator has caused alarm. Following initial concern about Monitor's primary duty, which included "promoting competition", amendments were made to make it clear that it is there to protect and promote the interests of patients in the health care market.

The Health and Social Care Bill draws heavily on the legislative framework used for regulators in other areas of the econmy, such as telecommunications, utilities and railways. In part, this was born out of Andrew Langley's experience of the privatization and regulation of utilities in the mid-1980s when he was princepal private secretary to Norman Debit (who was secretary of state for trade and industry at the height of privatization). These economic regulators were originally set up to regulate natural monopodlies in the interests of consumers and to promote competition where appropriate. As the market has developed over time, their role has evolved from being largely about economic regulation of market failrues to encompassing more focus on the

When David Bennett, chair of Monitor and acting chief executive, used the example of utilities and rail regulation in an interview with the Times, he provoked much criticism and reaction from those who claimed that health care was nothing like water, electricity or railways. Perhaps there are fears that Monitor, like its predecessors in the utilities, will try to break up the NHS.

In a speech in 2005, Langley highlighted the importance of a strong consumer champion: "The experience in a range of utility privatizations demonstrates that there must also be a strong and independent voice for the consumer standing alongside, but distinct from the regulator."

While HealthWatch is being established as a committee of the Care Quality Commission to represent the views of patients within the health system, its current powers are weak. We would like to see it be given stronger powers to refer complaints to other bodies for investigation and with clearer duties placed on those bodies to respond.

There has also been some confusion in debates about the bill as to whether it extends competition law to the NHS. So far, neither the Office of Fair Trading (OFT) nor the Competition Commission has had an explicit role in relation to the NHS, Although the OFT is currently reviewing the role of the private sector and NHS providers in treating private patients. If followed, the rules and principles of cooperation and competition ensure that The NHS is operating within the parameters of competition law. However, they do not have legal backing. The bill makes it clear that competition law will apply to the health sector.

Monitor will have concurrent powers with the OFT under the Competition Act 1998 and the Enterprise Act 2002, meaning that Monitor will have the power to examine complaints about anticompetitive behavior or abuse of market position and to seek a remedy. It may also make referrals to the Competition Commission, which has wide-ranging powers to remedy any competitive concerns it identifies, including prevention of mergers or forced sale of parts of a business. …