This is consistent with our guidance in Good medical practice, which says:

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1 26 August 2014 Bill Rogers Competition and Markets Authority Dear Bill Rogers, Draft Order Thank you for meeting my colleague Catherine Thomas to discuss your Order. This letter is our formal response. Definitions The definitions at the beginning of the Order state: private healthcare provider means a healthcare provider which charges fees for its services This definition would extend the Order to many NHS services: in many cases, providers of NHS services charge fees, but the fees are paid by clinical commissioning groups rather than by the patient, their insurer or their employer. Inducements The Order provides that: 12.2 Any scheme, whether legally enforceable or not, inducement, gift or hospitality that may affect the way a referring clinician prescribes for, treats or refers private patients or commissions services for private patients at the facilities of a private hospital operator is prohibited. This is consistent with our guidance in Good medical practice, which says: 80. You must not ask for or accept from patients, colleagues or others any inducement, gift or hospitality that may affect or be seen to affect the way you prescribe for, treat or refer patients or commission services for patients. You must not offer these inducements.

2 Reference to GMC The Order states: 12.4 The prohibitions in this part apply notwithstanding that the relevant obligation or relevant financial or other advantage may have effect for a limited period of time, is made subject to specified exceptions, or includes an overriding obligation on the referring clinician always to act in the patient s best medical interests or adhere to GMC guidelines on good practice. We support the policy intention that overriding obligations to adhere to GMC guidelines should not render obligations acceptable if they would otherwise be prohibited under the Order. We are concerned, however, that the reference might undermine our guidance because it implies our guidance is consistent with the acceptance of inducements that affect treatment recommendations, when it is not. We believe the policy objective could be met by ending the sentence at patient s best medical interests and would be grateful if you omitted the explicit reference to the GMC from the final Order. Equity participation schemes The Order says: 16.1 Subject to paragraph 2 of this article, a referring clinician is prohibited from having, directly or indirectly, a share or financial interest in a private hospital or a facility owned or operated by a private hospital operator, in any partnership or other arrangement or venture created for the purpose of enabling a private hospital operator to offer private healthcare services, or in any diagnostic equipment or equipment used for treating patients. We say: 77. You must be honest in financial and commercial dealings with patients, employers, insurers and other organisations or individuals. 78. You must not allow any interests you have to affect the way you prescribe for, treat, refer or commission services for patients. 79. If you are faced with a conflict of interest, you must be open about the conflict, declaring your interest formally, and you should be prepared to exclude yourself from decision making. 2

3 The Order is therefore consistent with our guidance: it is more restrictive than our guidance but will not present doctors with conflicting obligations. The Order would override our guidance in imposing greater limitations on the financial interests doctors are permitted to hold in hospitals and facilities. Because paragraphs 77 to 79 of Good medical practice apply to all a doctor s financial interests, not only those they might hold in independent hospitals and facilities, we do not intend to change our guidance to reflect the Order. Confidential information about patients The Order states that: 19.2 Operators of private healthcare facilities shall, subject to paragraph 3 of this article, include in the information supplied to the information organisation in accordance with this article: [ ] (b) the National Health Service or equivalent patient identification number [or alternative information from which an NHS number may be derived], or, in the case of patients from outside the UK, a suitable equivalent identifier, as determined by the information organisation; And 19.3 Any disclosure or use of information relating to a particular person must only be made if it is made with the consent of that person. Our guidance on Confidentiality states that 8. Confidentiality is an important duty, but it is not absolute. You can disclose personal information if: (a) it is required by law (see paragraphs 17 to 23) (b) the patient consents either implicitly for the sake of their own care (see paragraphs 25 to 31) or expressly for other purposes (see paragraphs 32 to 35) (c) it is justified in the public interest (see paragraphs 36 to 56). 9. When disclosing information about a patient, you must: (a) use anonymised or coded information if practicable and if it will serve the purpose (b) be satisfied that the patient: 3

4 (i) has ready access to information that explains that their personal information might be disclosed for the sake of their own care, or for local clinical audit, and that they can object, and (ii) has not objected (c) get the patient s express consent if identifiable information is to be disclosed for purposes other than their care or local clinical audit, unless the disclosure is required by law or can be justified in the public interest (d) keep disclosures to the minimum necessary, and (e) keep up to date with, and observe, all relevant legal requirements, including the common law and data protection legislation. You explained to my colleague that anonymised or coded information was unlikely to be a practicable solution that served the purpose of the information remedy. You also said the intention was for doctors to supply the information listed in 19.2 only if the patient had given their consent for the information to be shared. If the Order is amended to make clear that the confidential information listed in 19.2 should be provided only if the patient has given express consent, paragraph 19 would be consistent with our guidance on Confidentiality. Confirmation of diagnosis The Order requires that 20.4 The following information must be disclosed by a consultant to a patient prior to further tests or treatment, other than tests or treatment given on the same day as the consultation: (a) Confirmation of the relevant diagnosis. When the patient is being referred for further tests, the diagnosis will be uncertain, meaning that doctors will not be able to confirm a diagnosis. Doctors may, however, be able to provide a description of the likely or important differential diagnosis. We would be happy to discuss this provision with you, if that would be helpful. 4

5 Working together in future We will be interested to hear how your work in this area goes and are open to exploring how we might work together in future. Yours sincerely Dr. Judith Hulf Interim Director, Education and Standards Telephone: