Guidance

Checklists: lawful and unlawful arrangements

Published 3 December 2015

You may be unclear whether the way you work together with other private practitioners complies with competition law. The following may be arrangements you have in place already or are considering but aren’t sure whether they’re lawful.

Please note that this advice doesn’t relate to work carried out under employment with the NHS in relation to NHS-funded services.

Unlawful

• You coordinate with your competitors to keep prices at a certain level
• You agree with your competitors to charge a fixed price or a mechanism for setting prices
• You agree with your competitors to share markets (eg particular locations) or customers
• You discuss with your competitors your future pricing intentions, including how you intend to respond to pricing initiatives or tenders
• You agree with your competitors to restrict the quantity of goods or services produced or supplied

Seek specialist advice

• You’re a member of a group and also operate as a sole trader (a ‘hybrid’ arrangement)
• You enter into a joint venture with others, which will include some form of joint selling or joint negotiating
• You intend to rely on the exemption criteria set out in Section 9(1) of the Competition Act 1998 but you’re unclear whether they apply
• If merging together with another group or business, or if you already have a large market share for providing services in a certain area or region, then beware that competition law can apply to businesses who abuse their dominant position

Lawful

• You undertake all your private medical work as a sole trader and decide on your conduct individually
• You undertake all your private medical work within a group and you exclusively work through that business (a structure similar to a law or accountancy firm)
• You collaborate on elements of clinical practice that don’t relate to the provision of services in competition with other providers (eg joint purchasing or joint educational activities) for the purpose of improving services to patients
• You collaborate with other private practitioners or groups of practitioners that aren’t your competitors (eg provide different procedures or work in different geographic markets)
• You collaborate with other private practitioners or groups of practitioners that are your competitors which could limit how you compete. However, the cooperation generates significant efficiencies which benefit patients, and the cooperation meets the exemption criteria
• You set up a group or bring 2 groups together, provided merger control rules don’t apply

Please note: this advice does not constitute legal advice and should not be relied upon as such. If in doubt whether you are in danger of breaking competition law, seek independent legal advice.