High Court undertakings from the IMO following decision to withdraw services
Outcome of the Court Action
The Competition Authority (the Authority) initiated proceedings against the Irish Medical Organisation (IMO) in July 2013. This arose following the IMO’s refusal to cancel a decision of its own GP Committee to withdraw certain patient services in protest at proposed Government cuts to fees paid to GPs.
On 28 May 2014, the IMO provided undertakings to the High Court to address the Authority’s competition concerns. The undertakings given by the IMO to the High Court mean that it does not have the power of veto over changes to, or replacement of, the General Medical Services (GMS) contract. The GMS is the contract between GPs and the Government that covers treatment of public patients. The Government can determine policy in this critical area, free from the threat of illegal collective action by doctors, such as a mass withdrawal of services. This case sets down a clear marker for other professionals and their representative organisations who provide services to the State.
Outline of case
Competition law protects consumers by making it illegal for private undertakings to get together to agree the price they charge for their goods or services. Under competition law, self-employed individuals cannot act collectively with the aim of affecting fees paid to them.
Over the last number of years, the IMO persisted with its view that competition law did not apply to GPs providing services under the GMS contract (or to the IMO itself) and that the IMO should be permitted to coordinate the business conduct of its members. The IMO and its members argued that GPs should be permitted to withdraw their services en masse as a mechanism for improving their lot, something which is expressly prohibited under competition law where self-employed people are involved.
This is why the Authority initiated proceedings against the IMO in July 2013 following the IMO’s refusal to cancel a decision of its GP Committee to withdraw certain services (such as routine blood tests) to GP visit card and medical card holders, in protest against a proposed reduction in the payments made to GPs under the GMS contract.
On 28 May 2014, the IMO provided undertakings to the High Court:
- Not to organise or recommend the collective withdrawal of services or boycotts by its members
- To advise its members that they should decide individually and not collectively whether to participate in publicly funded GP health services on such terms as are offered by the Minister for Health.
These undertakings resolve the Authority’s concerns. The undertakings also contain a number of other provisions which confirm the Authority’s position – from the point of view of competition law enforcement – regarding:
- The role of the IMO in any process of engagement with the Minister for Health and/or the Health Service Executive (HSE) and the limitations to that role.
- The relationship between the IMO and the Department of Health/HSE relating to discussions on publicly funded GP health contracts.
- The safeguards which are necessary to ensure that competition law is not breached and that patients and taxpayers are protected. In particular, it emphasises that the Minister/State must make the final decision on contract terms and conditions, including fees.
More or less at the same time that the IMO signed the undertakings with the Authority, it also signed a Framework Agreement with the Minister for Health. Together, the Framework Agreement and the undertakings with the Authority outline a process that allows the IMO to engage with the Department of Health and the HSE on future changes to the GMS contract.
The Authority believes that this process contains safeguards which protect the State, as a purchaser of GP services, as well as public patients and taxpayers from potentially anti-competitive conduct by the IMO. It also provides clarity to the IMO and its members on their legal position.
The bottom line however is that the agreements place the Minister for Health and the State – not the IMO – firmly in the driving seat as regards decision-making, but still allow the IMO to represent its members. The agreements do this by providing for a mechanism (possibly involving a third party who would make a recommendation on fees) for the IMO to relay information from its members on what proposed contract terms and conditions would mean for GPs.