The High Court ruled that the Health Service Executive was an “undertaking” for the purposes of the Competition Act 2002 when operating ambulance services and setting rules for private ambulance transfers. The ruling resolves a preliminary issue in a case brought by Medicall Ambulance Limited; it does not decide whether the HSE held a dominant position or abused it.
Medicall is challenging a Booking Protocol that it says the HSE introduced and imposed in November 2008 and operated until December 2010. The protocol set performance standards for private ambulance operators and required requests for privately insured patients to go through HSE ambulance control. It also provided for a strict rotation among insurers’ approved operators, with the HSE stepping in as provider of last resort if none could meet the required time.
Medicall sought an order quashing the protocol, arguing that the HSE lacked statutory power to introduce it and that it infringed the Competition Act’s prohibition on abuse of a dominant position. The motion decided in this judgment asked the court to declare that the HSE was an undertaking when arranging or providing patient transport to and from hospitals and other health facilities.
Justice Cooke said ambulance transfers were provided in a market where private operators were active, and that the HSE charged insurers when its National Ambulance Service transferred private patients. The HSE maintained that its charges covered costs only. The judge said profit was not required for an activity to be “for gain” under the Act. He also considered the HSE’s role in providing standby ambulances at events as a relevant indicator, while noting that this was a distinct activity and the Booking Protocol did not apply to it.
The court rejected the HSE’s submission that introducing the protocol was solely a regulatory act. The judgment noted that the HSE had said it had no regulatory role in establishing or policing standards for private patient transfers. Justice Cooke concluded that, in these circumstances, the HSE’s ambulance operations and its intervention in how private ambulance services were performed and allocated had the necessary economic character to bring it within the statutory definition of an undertaking.
Medicall’s claims that the rotation distorted competition and caused inefficient long-distance journeys were allegations to be contested at trial. The judgment expressly left unresolved whether the HSE was dominant in the relevant market, whether implementing the protocol amounted to abuse, and whether the arrangements could be objectively justified by the HSE’s statutory responsibilities.