Private participation in the ssn between public service, competition and administrative discretion

Abstract

The pandemic emergency has rekindled the spotlight on the National Health Service, highlighting not so much (or at least not only) the obvious observation that it represents an important item of expenditure in the state budget, but rather its being an essential social infrastructure or, if we like, a precondition, at the same time, for the functioning of the economic system, for social cohesion and, ultimately, for the correct development of democratic processes. This work intends to raise some criticisms regarding the effectiveness of the selections pursuant to art. 15 of Legislative Decree 118/2022 with respect to the pro-competitive aims underlying this sector reform. In doing this - by opting for a normative vision of competition, as it is considered more in line with the established placement of the right to health as an expression of the sovereignty of the person and, at the same time, a test case for the principle of equality and an instrument for promoting social coherence - we will try to take stock of the role of private providers and their participation in the NHS and we will focus, in particular, on the difficult coexistence between the planning needs of the needs for health services in the light of budget constraints and the recognition of users’ right to choose and, therefore, on the exercise of administrative discretion when accrediting private providers and assigning the related spending ceiling.