The court of appeal has rejected the latest challenge  to the CMA's Private HealthCare market investigation, brought by the Federation of Independent Practitioner Organisations (FIPO) who represent the consultants. They had challenged both the failure of the CMA to take steps against the PMIs in relation to their exercise of buyer power in the market, and in particular the way in which they were seeking to control the prices charged by Consultants. There was a second challenge  to the  remedies in fact imposed by the CMA in relation to the publication of information about consultant charges and performance. The FIPO position was that the Fee structures of the PMIs were the relevant constraint on competition between consultants, and  not the lack of information available to the  public more generally.

The court, at this stage of the challenge was merely looking at whether there was an error of law, and  they found none. However, it is clear from the judgement that  the Court supported the approach of the CMA, and in particular the need for  adequate information  to the public to enable choices to be made by them, and a concern that  competition needs to be for the benefit of the ultimate consumers. Showing an adverse impact on competition from maximum fees is always likely to be difficult, and the CMA had not been convinced that  the approach of the PMIs was sufficiently likely to cause  a loss of innovation or improvements in quality, or a reduction in the number of available consultants , and  the Court was satisfied they were entitled to do so on the evidence.

For more information, please contact David Owens.

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