The Competition Commission (CC) today published its provisional decision on remedies to address features of the private healthcare market that it has found to give rise to concern. The CC’s ‘market investigation’, which began in April 2012, has identified structural flaws in the market which the CC believes to have ultimately lead to higher prices for certain patients.  In short, the CC has proposed that:

• 9 hospitals should be divested (seven by BMI and two by HCA);
• the OFT/CMA should review agreements for the operation of private patient units at NHS hospitals;
• certain consultant incentive schemes should be prohibited or restricted;
• performance-related information on both hospitals and consultants should be published; and
• consultants should provide fee information to both out-patients and inpatients.

Interested parties can comment by 6 February.

The CC’s procedure has already been called into question: the Competition Appeal Tribunal (CAT) today also handed down its judgment in a case which concerned BMI’s application for costs following its successful challenge to the way in which the CC operated its disclosure room in the investigation. Interestingly, the CAT held that while a successful party would ordinarily obtain a costs award in its favour, BMI’s costs of almost £300,000 were disproportionate given the complexity of the case. Furthermore, BMI was only successful on one of the two grounds it raised. As a result, the CAT awarded BMI only £125,000, having taken as its starting point the CC’s modest expenditure of £35,000. Clearly, we are getting value for money from our competition authorities!