“In the best interest of patients” – who decides?

Everyone claims to be acting or making decisions “in the best interest of patients”. Doctors have been doing it forever despite engaging in some dubious and occasionally dangerous practices over the centuries.

Acting “in the best interests of patients” defines us. It is written all through Good Medical Practice, our code of conduct from the General Medical Council.

Yet what is “in the best interest of patients” is not always clear. Two doctors can sometimes have robust differences of opinion about the best treatment or management for a specific patient. Each would claim that their interpretation of the evidence showed what was “in the best interests of the patient”. Of course, this may say something about the quality of evidence, our ability to interpret it for a specific case or just some inadequacy of doctors.

Claims about best interest of “patients” in the plural are even more difficult. This is especially so when the term is used for decisions about service redesign or reconfiguration and now, for competition regulation.

At a recent event, speakers from the Office of Fair Trading and Competition Commission talked about the decision prohibiting the merger of Bournemouth and Poole Hospitals. I don’t envy the role of the regulators in applying competition law designed for other sectors to health services. I have no doubt they created a process that was as fair and robust as they could. We were told several times that the decision was “evidence based” and “in the best interests of patients”. I am sure both organisations believe it was. However there was a nagging voice in my head that kept me wondering if it is possible to have a single “best interest” decision for a population of several hundred thousand souls who have the whole range of needs now and in the future.

I read the report. It lays out clearly the logical consideration of each question in relation to the legislation. In many ways you cannot fault it. The premise is that the merger would lead to Significant Lessening of Competition (SLC) which was not outweighed by the benefits (RCBs – relevant customer benefits). It was clear the Competition Commission judged that the two trusts had not presented robust enough evidence about the claimed RCBs. This was the main message from the event – make sure your evidence is sound.

There are a couple of other messages I took away. One is that lessening of competition trumps demonstration of benefits. Mergers inevitably lead to SLC unless you are in a city with several other trusts in easy travel distance. There will be, de facto, at least one less significant autonomous provider so any other evidence needed of the impact on competition is minimal. Meantime you have to actively prove benefits of merger. Submission of definitive service reconfigurations and finance and activity plans prior to the necessary consultation is tricky and a potential local political nightmare. The odds feel heavily weighted against.

The second message is that good process to consider existing legislation does not help when the questions to be answered may not the right ones in the first place.

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