I’m a competition lawyer. Contrary to what some people think, I don’t advise on the law relating to prize competitions (plural), but on the law relating to competition (singular). In other words, the law on how to maintain competition in the market, preventing big companies from getting so powerful that they squeeze out their competitors.
One of the tools we use to work out if behaviour breaches competition law is to consider the counterfactual. This means we look at what would have happened in the absence of the questionable behaviour and see whether that behaviour led to the reduction in competition or whether that reduction might have happened anyway. This tells us whether it’s the behaviour that is problematic or something else. It’s a useful tool and one that I have seen some echoes of outside of my work in recent days and weeks.
The first thing that led me to consider the counterfactual was my latest appointment with my oncologist. A few days ago I had a scan and, thankfully, the results showed that my current chemotherapy is continuing to shrink the metastases in my liver. So when I saw my oncologist a few days after the scan, we discussed treatment going forward. We talked about a number of different treatment options for the future, although we both agreed that if it ain’t broke don’t fix it, so I should continue on the current regime for the moment. One of the options I wanted to hear his view on is a study being carried out at a clinic in central London. The doctors there are using off-patent generic drugs which were developed some time ago for a variety of uses not including cancer. They are using a cocktail of these pills to see if they will be effective alongside more conventional treatment options. A number of the ladies from my online community have been visiting the clinic and have signed up to take the pills. it is a really interesting approach to cancer treatment and one that I will certainly be keeping an eye on in the future. My great friend, Jojo Gingerhead, has blogged about her appointment at the clinic and I urge you to read it because it really is very interesting: http://www.themalignantginger.co.uk/care-oncology-clinical-study-will-i-grow-horns-and-a-tail/
Anyhow, I raised this with my oncologist. He was relatively neutral about the whole thing and – to be fair – somewhat sceptical. The point that he made that really hit home was this: if you as a patient are taking these drugs alongside conventional chemotherapy, and you see an improvement, how can we tell whether it is the chemo or the drugs that is helping? In other words, there is no clear counterfactual. And I think that is the case with a lot of possible treatments for me in the future. If I were prepared to go on a trial of the drug and give up all other forms of treatment at the same time, then the counterfactual is clear. No drugs – situation deteriorates. Drugs – any improvement must be due to the drugs. But I am not prepared to take such a big gamble and give up conventional treatment unless I am sure that I am in a safe place before I go on the trial – in other words that the cancer is very unlikely to grow back while I remain off the conventional treatment. I am not sure that I am ever going to be in that place, unless I reach the end of my treatment options of course. It just seems too big a risk.
The other thing that has got me thinking about the counterfactual recently is the General Election. For me, as for a large number of my friends being treated for breast cancer, healthcare is clearly an important issue. There a great deal of online fury directed towards the Conservative Party who are seen as having privatised the NHS. I would say that there is near universal condemnation of this. My wonderful friend Sarah has blogged on this: http://hbocuninformed.blogspot.co.uk/2015/04/save-our-nhs.html and has been filmed for an online campaign: https://m.youtube.com/watch?v=Ap7_7BmdWbk.
I am a huge fan of the NHS and in no doubt that it should continue and should be providing universal healthcare free at the point of service. But what I am not entirely sure I understand is why people are so against privatisation of the NHS. First, privatisation comes in many forms. No one that I have heard argue against privatisation has expressly spelt out what form or aspect of privatisation they object to. Nor has anyone explained the reasons why they object to the concept of privatisation of the NHS, or at least, not clearly. There seems to be a visceral gut reaction that the privatisation of the NHS is a bad thing and will lead to a reduction in the provision of health services. There also seems to be a huge dislike of the idea of private companies profiting from the NHS, although again, no one has explained precisely why they dislike this. Certainly, private companies seem to be involved in many aspects of the provision of public services and profit from them without causing similar levels of anger.
Please don’t get me wrong. I don’t have a party political position on this. I am the archetypal floating voter. The Conservative Party doesn’t sit easily with me in a number of ways, the biggest of which is their anti-European stance. But the arguments against the Tories that they are evil because they are privatising the NHS don’t seem to me always to be fully thought through. And this really for me is about the counterfactual. If the NHS were to be a magnificently efficient smooth running operation in purely public hands, then I could understand why handing parts of it to the private sector and allowing them to make profit might seem objectionable. But that is not the counterfactual. The counterfactual is a highly inefficient, messy, bureaucratic and poorly functioning NHS. If allowing private companies to run discrete services within the NHS increases efficiency and improves service delivery, then why is it so bad that those private companies may also profit from it? Which is better – a shoddy NHS purely in public hands or an improved NHS which has a measure of private sector involvement?
I am pretty sure I am opening myself up to being lambasted by publishing this blog post. If anyone can come up with some good arguments to persuade me to change my mind, I am very open to receiving them. As I said, I don’t have a political agenda. But please, consider the counterfactual. I always do.