A litany of unsuccessful mergers is evidence that they need competition regulations to keep them in check, says Mike Birtwistle

The summer months have seen professors Bruce KeoghMike Richards and Don Berwick line up to consider what to do about hospitals mired in mediocrity and worse. The consensus is that they need help from outside. But how and what support?

Remember, this is not new. Patricia Hewitt had her turnaround teams and before that Alan Milburn experimented with franchising. Looking at the problems still faced by the trusts that were the (sometimes grateful) recipients of these interventions, it is hard to argue they were unqualified successes. So what next?

‘If cooperation is in the interests of patients, then commissioners can and should demand it’

Support versus competition

Most people, including the health secretary, want to see support provided by other NHS trusts. Yet there has been a good deal of consternation among commentators about the impact that competition law could have on efforts to provide NHS support for struggling hospitals, fuelled by the intervention in plans to merge Bournemouth and Poole, and stirred by the umbrella groups that represent many of the NHS organisations affected.

The argument goes that, at a time when struggling hospitals need collaborative help from their better-performing neighbours, the Health and Social Care Act will mean that, instead, they get an unhealthy dose of competition.

The mantra of the market will mean they won’t be able to get the support they need and others want to provide. Indeed competition itself will undermine them still further, pitching them into a further spiral of decline.

I don’t buy this for three reasons. If cooperation is in the interests of patients, then commissioners can – and should – demand it. As the purchaser they are perfectly within their rights to require closer working (some would argue it is their duty to require it).

In addition, if a logical conclusion of greater support is mergers, as many suggest, then I am quite happy for such proposals to be subject to some scrutiny. This is not about any love of competition; it is about a concern that mergers in health rarely deliver the benefits anticipated (or at least claimed).

People rightly complain that debates about competition tend to be based on ideology and not evidence (truth be told, there is less evidence to support either side than they would care to admit). Yet the subject of mergers is one where there is plenty of evidence.

Pick any time over the past quarter of a century and a merger has been cited as the answer to at least one or more hospital’s problems. But what have these mergers delivered? Recent history reveals a litany of visions not delivered, promises not kept and new failing (or failed) organisations established.

‘People rightly complain that debates about competition tend to be based on ideology and not evidence, yet the subject of mergers is one where there is plenty of evidence’

Does the unhappy experience at Imperial (Hammersmith and St Mary’s), Barnet and Chase Farm and – yes – South London Healthcare Trust suggest that mergers are a ticket to success? If this is the track record we have to go by, then a tougher test of whether mergers might actually work is hardly a bad thing.

The point about competition law is that, where there could be a restriction of competition, an offsetting benefit has to be proven. In the case of health, this would be better quality of services to patients. Whether you like or loathe competition as a concept, applying such a test to hospital mergers is surely beneficial given the NHS’s track record of flawed mergers.

A duty to cooperate

NHS organisations are still subject to a statutory duty to cooperate. The duty, first introduced in 1999, was applied to foundation trusts in 2003 precisely to allay fears that the greater autonomy implied by foundation trust status would prevent the kind of cooperation and support now seen as necessary.

The duty has rarely (if ever) been tested and, in the furore over part 3 of the Health and Social Act, is often forgotten. Yet surely it could be used as a defence by one NHS organisation coming to the assistance of another, if and when competition authorities decided to intervene?

Anything that would prevent hospitals genuinely working together in the interests of patients would be alarming. The fact that so many people think the NHS’s new competition regime could result in this shows the scale of the task in terms of persuading people to play by the actual rules and not the imaginary, much tougher, ones.

Yet a sense of perspective is required. Provided that trusts can demonstrate how their actions will help patients, they will be fine. Perhaps a little more energy should be devoted to developing plans that will actually deliver these benefits.

This article was first published in the Health Service Journal. You can read it here.