Court rules Competition Commission treatment of private hospitals 'unfair'

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Private hospital groups have been unfairly blocked from defending themselves by the Competition Commission (CC), a Competition Appeals Tribunal has ruled.

Following the CC's report into the private healthcare industry which found that premiums were higher than necessary due to lack of competition among private operators, the judgement found that the CC had restricted hospitals' access to the data supporting their case.

As a result, the complainant, BMI Healthcare (which was backed by fellow hospital groups HCA and Spire) were found to be unfairly constrained in preparing a reasoned response to the findings.

In its list of remedies to help increase competition among hospitals, the CC outlined that some hospital operators could be forced to sell some hospitals in areas where they had too much power, one of which was HCA.

The Competition Appeals Tribunal said the approach used by the Competition Commission with its Disclosure Room for interested parties to view the provisional findings was unfair.

"We unanimously conclude, for the reasons that we have given, that the Decision was in breach of the Commission's statutory duty in section 169 of the Act and in breach of the rules of natural justice in comprehensively failing to give the Applicants a fair opportunity to correct or contradict the Commission's Provisional Findings or to make worthwhile representations.

"The question before us is whether or not the Commission adopted a procedure that was fair: we hold that the procedure embodied in the Disclosure Room Regime was unfair."

HCA commercial director Keith Biddlestone welcomed the tribunal result and said that the process had left the group unable to defend themselves in a reasonable manner.

"The Competition Commission have launched an attack on our prices without revealing how their conclusion was drawn. They left us with no reasonable way of defending ourselves. Their Provisional Findings and Potential Remedies reports were also significantly delayed. The outcomes of this hearing means that we should be given more time and access to information to understand and respond to the CCs assertions," Biddlestone explained.

"There are 74 private hospitals in the Greater London area and HCA own just six of them. Our crime appears to be that we have made them the best run hospitals in the city and attracted more than 30% of private admissions in the capital."

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