(How) is COVID-19 reframing interaction between the NHS and private healthcare?

Abstract

In March 2020 a ‘major deal’ was struck between the National Health Service (NHS) and private healthcare sector to facilitate ‘crisis’ and ‘continuity’ responses to COVID-19. A further deal was struck in January 2022 to support the NHS in tackling the Omicron variant, suggesting that the pandemic was evolving, rather than definitively over. The legal basis for these deals was a Public Policy Exclusion Order, a temporary relaxation mechanism in UK competition law defined by a ‘disruption period’. In a global pandemic, the ‘healthcare disruption period’ might be considered to be of a different scope and nature to short-term disturbances experienced in other sectors, such as groceries. This article examines the Public Policy Exclusion Orders issued in respect of health services in England and Wales, and the Collective Agreements notified under these between March 2020 and March 2021, and again in March 2022. Amid ongoing tensions surrounding ‘NHS privatisation’, this enables a timely analysis of whether the underlying relationship between the NHS and private healthcare may be changing in response to COVID-19, and how considerations of ethical frameworks are also relevant to this aspect of the pandemic response.