Further CMA success in private healthcare appeal

30 Apr 2015

Following its successful defence of the appeal brought by AXA PPP Healthcare Limited (AXA PPP) against its investigation into the provision of private healthcare, the Competition and Markets Authority (CMA) has also now succeeded in defending the appeal brought by the Federation of Independent Practitioner Organisations (FIPO).

On 29 April 2015, the Competition Appeal Tribunal, by majority judgment, dismissed FIPO’s application for review of parts of the CMA’s final report on the private healthcare market investigation. The majority of the Tribunal (Sales LJ and Clare Potter) rejected each of FIPO’s grounds of challenge and upheld the CMA’s finding that there was no adverse effect on competition resulting from insurers’ buyer power in relation to consultants and the restrictions placed on consultants’ fees. The Tribunal held that CMA’s findings were not irrational and were supported by the evidence. Further, the Tribunal found that there had been no failure to consult by the CMA.

One member of the Tribunal (Dermot Glynn) issued a dissenting opinion in which he set out his view that the CMA acted irrationally in not finding an adverse effect in competition and in concluding that consultants were able to compete below the price caps imposed by the insurers. The minority view was, in particular, that the CMA’s findings did not reflect economic realities in the market. However, the majority of the Tribunal considered that the minority opinion did not reflect the grounds of challenge raised by FIPO, involved a merits-based review and went beyond the scope of the CAT’s review role under section 179 of the Enterprise Act 2002.

Please click here to view the Federation of Independent Practitioner organisations v CMA judgment.

Kassie Smith QC and Brendan McGurk appeared for the Competition and Markets Authority.