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Health professions, Proportionality test & Competition

Public Health is this uneasy area of governance where the EU Commission’s concerns for competitiveness are limited by the national competence for organising domestic healthcare systems.

The possible articulation between competition’s requirements and health’s protection is regularly provided at the EU level by the European Court of Justice; EU experts might give a hand too.

On 12 June 2015 the European Commission independent expert panel on effective ways of investing in health published its final opinion on Competition among health care providers – Investigating policy options in the European Union.

When a legislator or a regulator is about to introduce more competition into a national health system (“Competition is often looked at as a solution to problems that Government-run and regulated health systems did not solve”), the report identifies various conditions across EU Member States that need to be considered such as:

  • the free movement of patients & “adequate information about provider prices and quality
  • the free movement of services & “the existence of standardised products or services facilitating comparison by patients
  • the free movement of professionals & “the presence of multiple providers”
  • the market access of professionals & “the possibility of an easy entry and exit of health care providers”.

The two last concerns are targeted by the recent proposal of Directive on a proportionality test before adoption of new regulation of professions

This draft Directive can be read at the light of this opinion on competition among health care providers.

In its 2015 document, the expert panel addresses many aspects of competition (price, information, quality, etc); it stresses for instance that in addition to economic evaluation, information about quality is of particular importance for competition to improve access to high quality care. Such competition is also essential for public authorities looking to “improve efficiency” in the use of health resources. The latter is an old concern from the Euro-zone and the public health spendings are annually addressed by both the EU Commission and Council.

However the expert panel is not ready to sign a blank check to competition and appears keen to stress that:

Competition in health care provision will not solve all health system problems and may have adverse effects. Neither economic theory nor empirical evidence support the conclusion that competition should be promoted in all health services”.

This warning should also be read in conjunction with the proposal of Directive on a proportionality test before adoption of new regulation of professions. 

It is perfectly legitimate to ensure that a professional regulation is proportionate to its pursued objective of public health.

One can also understand the EU Commission’s view to introduce more competition and to reduce the reserve rights granted to some professions (Recital 19 in fine, Article 6(2)(f), Article 6(3) of the draft Directive).

But when it comes to health professions, the Commission’s draft proposal of Directive should show more prudence and remember the experts’ advice: health services are not usual commercial services : “Introducing, increasing or changing competition in health services is a delicate policy exercise.”

And “As an instrument, the use of competition among health care providers needs to be measured against the different objectives of health systems. These objectives may be conflicting and require a balance. It is unlikely that competition is aligned with all of these objectives at the same time”.

Since national health systems vary across the 28 countries, the expert panel conclude there is no fixed set of conditions that ensure competition will improve health system performance. Appropriate answers are national or regional answers (this is also the draft Directive’s spirit in theory).

To conclude, the expert panel addresses to the Commission its recommendations:

When considering the use of competition among health care providers, decision makers should take into account the following:

1. Introducing, changing or increasing competition in the provision of health services is a delicate and complex policy exercise.

2. It requires additional policy actions aimed at allowing the market to function properly and should be accompanied by careful and constant evaluation of effects.

3. It also requires, among other things, the enforcement of competition rules to prevent the creation, strengthening or abuse of dominant positions.

4. Although there is no general presumption about the impact of competition on equity objectives, policy concerns about adverse effects reinforce the need for careful monitoring.

5. There is an urgent need to develop empirical evidence, on when and how competition among health care providers works, in ways that are useful for policy.”

Clearly, a draft proposal of Directive proposing 21 criteria of assessment of proportionality of regulated professions (Article 6) and not a single criterion of assessment of the justification of public health brought to these professions (Article 5) creates an asymmetric evaluation of health professions that does not echo the experts’ recommendations of carefulness regarding the introduction of competition among health care providers.