The Co-operation and Competition Panel opens for business tomorrow and both private and NHS organisations are preparing lists of the issues they want it to address in its first year.
The panel, chaired by Labour peer Patrick Carter, will be expected to make judgements on complaints from private companies and NHS bodies claiming they are being discriminated against in the NHS market.
Panel director Andrew Taylor told HSJ that he expected concerns over NHS consultants who wanted to work for private hospitals or treatment centres in their spare time to be among the early referrals made to the panel.
"I think both sides are concerned about this one," Mr Taylor said. "The private sector wants access to staff [but] if you are a foundation trust you are concerned [to ensure] your staff aren't acting in a way that gives rise to concerns about a conflict of interest and that's a legitimate concern too."
Consultants' NHS contracts allow them to work elsewhere in their non-contracted hours, but private companies have complained that some trusts put "substantial barriers" in place to stop their consultants doing so if they feel the private hospital is a competitor.
Mr Taylor said the panel would approach this issue as a potential form of "restrictive practice". The panel would draw on case law but would concentrate on gathering evidence on whether the practice really was preventing companies from entering the NHS market and if conflicts of interest were "material".
But he said the overriding test for the panel would be: "Is that behaviour having an adverse effect on patients or taxpayers?" That would mean it would not be enough to simply show that a company had missed out on potential profits, although in practice, competition law often views generation of profit as a necessary driver for the competition assumed necessary to drive up quality and efficiency.
NHS Partners Network director David Worskett said his members were keen to see clarification on workforce mobility but the "elephant in the room" remained the private sector's inability to offer a pension scheme equivalent to the NHS. That prevented private companies competing for staff or being able to take over outsourced services, he said.
Mr Taylor said he did not want to prejudge the outcome of any inquiry into pensions, but said the panel's approach would be likely to centre on the principles of transparency and fairness.
That would require looking at the issue "in the round", he said, to see whether the advantage of a Treasury backed pension scheme was counterbalanced by burdens, such as workforce training, elsewhere.
ON THE PANEL
Patrick Carter (Lord Carter of Coles), chair Labour peer who has advised the government on issues such as sport, productivity and legal aid. His register of interests in the Lords includes his directorship of McKesson Information Solutions, which sells commissioning services to the NHS.
Andrew Taylor, director Economist and regulation expert, previously senior director of inquiries at the Competition Commission.
Laura Carstensen Competition lawyer
Janet Husband Emeritus professor of diagnostic radiology at the Institute of Cancer Research.
Peter Smith Professor of economics and director of the Centre for Health Economics, York University.
John Swift QC Previous work has involved privatisation of UK utilities
John Wotton Competition expert and chair of the Law Society's EU committee