“Integration is like M&Ms… a thin, sugary veneer of medical ‘science’ over a yummy core of price fixing.” (US Healthcare Executive).

Over the last 12 months I’ve been researching the impact of competition policy on delivery system innovation and payment reforms that promote greater integration. My question has been: how might policymakers, regulators and healthcare leaders work constructively to produce an informed and proportionate competition regime applied to the NHS?

In the US, healthcare providers are united in the view that competition concerns – namely the fear of violating competition law – have had a significant chilling effect on progress toward increased integration in the delivery of care. This, it is claimed, has resulted in a marked, conservative approach to such ventures.

Today, this concern is best reflected in anxieties around the potential for experimentation with accountable care organizations (ACOs) to land providers in trouble with the US competition enforcement agencies.

Yet, for their part, the competition agencies appear to remain open-minded to the prospect of greater integration among providers and have stated openly that they seek “conversation, not collision” in addressing the tensions which have long been evident in this regard.  

Certainly, from my own experience, the staff at the competition agencies absolutely support the objective of delivering higher quality, lower cost healthcare that benefits patients – though there is a healthy scepticism as to whether many of the ventures targeting this goal are capable of or, in truth, actually dedicated to, achieving this objective.

Central to the frustrations experienced by US providers experimenting with more integrated care is their repeated lament concerning a lack of sufficiently clear guidance on what is, and isn’t, permissible within the bounds of competition law. Without obvious ‘bright lines’ and worked examples to follow, providers fear that experimentation will put organisations at significant legal risk.

Partly in response to this, new guidance relating to the antitrust approach to ACOs was published by federal agencies late last year – the output of some unprecedented collaboration between the federal health and competition agencies.

Despite this, commentators have suggested that the new guidelines are ‘more sizzle than steak’ and key concerns remain unresolved.

Furthermore, and perhaps unsurprisingly, many providers in the US describe their interaction with competition agencies in unflattering terms: processes are regarded as overly burdensome, and relationships as adversarial and fraught with risk.

Nevertheless, I’ve found this common perception of the enforcement agencies as loathed, heartless naysayers is tempered by the experience of other providers who suggest that working with the agencies can grant confidence – forcing organisations to “do their homework” the end result of which are more robustly planned, clinically led and patient-focused proposals within which meaningful, measurable outcomes for patients and expected efficiencies are better defined.

In returning to the UK, it is the nature of this interface between competition agencies and the health sector that has most saliency. My own view, based on both my experience at the Cooperation and Competition Panel and my work in the US, is the clear need to deliver a light-touch, informal and expedited means for stakeholders – specifically providers and commissioners – to engage the competition regulator, ie Monitor.

Most importantly, the process must be one that engenders confidence and shared understanding on both sides.

There will no doubt be calls for “safe harbours”, “carve outs” or “waivers” for organisations looking to explore and establish what will be described as more integrated arrangements in the (English) NHS, but this is at a remove from the more immediate and basic need to engender constructive relationships built on trust and mutual respect.

The “extraordinarily adversarial” experience often recounted and sometimes openly demonstrated in the US hinders transparency and prevents open and honest dialogue. This is a real failing when all parties should be focused on the shared objective of securing high quality care for patients in an efficient and efficacious manner.

Thinly veiled or explicit distrust and frustration inevitably colours dialogue between parties, adds cost into the system and ultimately slows progress unnecessarily.

A key observation is that working toward what should be common goals is reliant on having informed and knowledgeable participants in the process. At the most basic level, this requires a regulator that comprises credible experience and expertise – clinical, legal and economic.

However, it is not a one way deal – commissioners and providers must also step up to the plate and deliver credible, evidence-based, patient-centered proposals that offer a clear opportunity to secure improved services and better care for patients (as well as value for taxpayers).

The aim must be to design a responsive competition enforcement regime that promotes innovation alongside proportionate regulation.

However, it is not enough to simply establish a set of rules and issue guidance but rather the hard work must focus on building relationships that encourage engagement, generate understanding and foster confidence – sadly, all too often lacking in the regulatory environment applied to the NHS.

Meanwhile, providers and commissioners must be brave.

Proposals for better integrated care that genuinely build on evidence and best practice – or, at the very least, well articulated, measurable aspirations – should expect to prosper within the new system.

And perhaps this is the key lesson for the NHS as it seeks to address the new environment in which it must operate (as well as serving as a tagline for my 12 months in the US): “We overestimate what we can do in a year and underestimate what we can do in 10.”