A G E N D A 1. APOLOGIES FOR ABSENCE Ian Metcalfe 2 ...

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Competition lawMonitor has concurrent powers with the OFT to apply UK and European competition law toproviders in the health care sector in England. Where Monitor establishes an infringement of theCompetition Act and/or Articles 101/102 of the TFEU, our enforcement powers include:giving directions to bring an infringement to an end; andimposing financial penalties.Before any finding of infringement, Monitor may accept binding commitments offered to us by anundertaking.Monitor’s powers to apply competition law are not limited to the NHS but apply to all undertakingsinvolved in the provision of health care services in England. Further information on whatconstitutes an ‘undertaking’ can be found here.Overview of Monitor’s formal provider enforcement powers (simplified)Monitor’s findingEnforcement powerMonitor has reasonablegrounds to suspect:breach of a licenceconditionORfailure to give MonitorinformationOREnforcementundertakings (s106)The provider may give an undertaking to:• take steps to bring the breach to an end;• take actions to restore the situation; and/or• any other actionswhere a provider fails to comply with an undertakingBreach of a licence conditionORFailure to give MonitorinformationOperate without a licenceDiscretionaryrequirements (s105)Monitor may oblige the provider to:• take steps to bring the breach to an end;• take actions to restore the situation; and/or• pay a financial penalty.Breach of a licence conditionRevoke licence (s89)Require the NHS foundationThe governance of an NHSfoundation trust is such thatthe trust will fail or is failingto comply with its licenceImpose additionalconditions relating togovernance (s111)And if thoseconditionsare breachedthentrust to remove, suspend,disqualify one or moredirectors or members of thecouncil and if it fails,Monitor can take this actionBreach of competition lawGive directions tobring infringement toan end,impose a fine(The wording of the Health & Social CareAct 2012 and Competition Act 1998 issimplified in this diagram)Page 11 of 50
<strong>1.</strong>3 About this documentChapter 2 explains how Monitor is likely to decide whether to take action, and what kind of actionwe might decide to take.Chapter 3 is about enforcement actions and explains the factors Monitor will take into accountwhen deciding which, if any, discretionary requirements to impose or what, if any, enforcementundertakings we will accept. This chapter also covers the matters Monitor may take into accountwhen imposing a variable monetary penalty.Chapter 4 describes the processes that Monitor will follow if we decide to investigate formally apotential breach. This includes the procedures for gathering information, the information thatparties may receive about the investigation process, and the opportunity for the affected party tomake representations.Chapter 5 outlines the decision-making procedures that Monitor will follow.Chapter 6 explains what rights of appeal exist if the affected party wishes to contest a Monitorenforcement decision or a competition law decision.Page 12 of 50
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A G E N D A 1. APOLOGIES FOR ABSENCE Ian Metcalfe 2 ...

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