Rosters that have the purpose of facilitating patient access to medical services are an integral part of delivering health care to the community, especially in rural and regional Australia. By ensuring a minimum level of service to the community such rosters do not breach the competition laws.
make sure the purpose of operating your roster is to facilitate patient access to medical services, and ensure sustainable working hours for doctors
make an independent decision about the fees you will charge patients
call the ACCC infocentre (1300 302 502) if you have any questions
DO NOT …
inhibit another roster doctor from practising
inhibit another roster doctor from seeing any patients he or she chooses
collectively with other (roster) doctors set the fees that you will charge patients (unless you satisfy the criteria of the RACGP authorisation determination—see below)
If you have any queries regarding these issues, contact your nearest ACCC office (see below).
Rosters are an important part of providing sustainable health services to the community, particularly in rural and regional Australia. They are also necessary for doctors to balance professional and personal commitments.
The ACCC is satisfied that a medical roster developed to facilitate patient access to medical services does not raise concerns under the Trade Practices Act 1974.
The purpose of the Act is to promote fair competition and fair trading by those who carry on a business.
Doctors who practise as private practitioners are regarded as carrying on a business and are therefore subject to the provisions of the Act. Fair competition and fair trading by doctors improves medical services and care to the community.
The medical profession has a collegiate ethos and a long history of cooperation between practitioners in the provision of medical services to patients. Compliance with the Act is not seen by the ACCC as undermining these features of the profession.
Doctors are permitted and encouraged to preserve collegiate values and to cooperate in developing arrangements that better serve their patients. What is not permitted is anti-competitive conduct, such as market sharing or price fixing.
The Act puts legal obligations on doctors not to engage in anti-competitive conduct. It also protects their rights if other doctors or suppliers act in an anti-competitive way towards them.
Doctors tend to operate under one of the following types of business structure, which are all separate legal entities:
company (private or public)
sole natural person
legal partnership with no corporate partners1
legal partnership with at least one corporate partner2
trust.
A roster may be arranged between doctors practising within a single entity, or through separate entities. The entity or entities involved in the roster will determine the application of the Act to any arrangements between the doctors who participate in the roster.
1 Partnerships are traditionally considered to be single legal entities.
Where all the partners are natural persons, arrangements agreed within the partnership are generally not subject to the provisions of the Act. This exception does not apply to partnerships where one or more of the partners is a company.
Rosters between doctors practising within the same entity
A single company, legal partnership with no corporate partners, or trust, is a single legal entity. All doctors practising within a single legal entity structured in any of these forms—either as directors, employees or partners—are considered part of the same entity and therefore not in competition with each other for the purposes of the Act.
A roster run by doctors practising solely within the same entity is an arrangement for that entity and not between competing entities. It does not raise any issues under the Act.
Similarly, a hospital can arrange and run an internal roster to provide medical services using doctors engaged by the hospital without raising any issues under the Act.
As outlined in diagram 1, all of the doctors practising through company A can enter into a rostering arrangement with each other, without breaching the Act. This is an internal management decision by company A on how it will conduct its business activities.
Diagram 1 Roster within the same entity
A rostering arrangement between doctors who practise through separate entities is illustrated in diagram 2.
Diagram 2 Roster between separate entities/competitors
Rosters between doctors practising through separate entities
The following sets out when a rostering arrangement will be considered an arrangement between competitors under the Act. Doctors who are part of a roster between competitors must consider the criteria below to determine whether their arrangement may raise issues under the Act.
As outlined in diagram 2, a roster run between doctors practising through separate entities (which may be any combination of entities, such as companies, legal partnerships, sole natural persons or trusts) is considered an arrangement between competitors for the purposes of the Act.
A roster run by doctors within a legal partnership where one or more of the partners is a company, also falls for consideration under the Act as an arrangement between competitors.
Rosters involving associateships
A roster run within an associateship, or between associateships, will be an arrangement involving separate entities (which may be any combination of entities, such as companies, legal partnerships, sole natural persons or trusts) and is considered an arrangement between competitors for the purposes of the Act.
Rosters involving hospitals
A roster to organise the provision of medical services at a hospital can be arranged by the hospital, by the doctors, or a combination of both. Who organises the roster, and how the doctors on that roster are engaged and remunerated, will determine whether the roster is considered an arrangement between competitors for the purposes of the Act.
If the terms of a doctor’s engagement and remuneration (e.g. fee for service, sessional or per annum) are yet to be set with the hospital, a roster arranged between doctors (or doctors and a hospital) to organise the provision of medical services at the hospital, will be considered an arrangement between competitors for the purposes of the Act. Doctors in this situation should consider the criteria below to ensure they do not breach the Act.
Rosters arranged by the hospital
As stated above, a hospital can arrange and run a roster to provide medical services to patients, using doctors engaged by the hospital, without raising any issues under the Act.
Rosters arranged by doctors
A roster arranged by doctors practising through separate entities to provide medical services to private patients at a hospital (e.g. anaesthetic services) is considered an arrangement between competitors for the purposes of the Act.
A roster arranged by doctors to provide medical services to a hospital for the treatment of public patients, which involves two or more doctors who are engaged by the hospital on a fee for service or sessional basis, is also considered an arrangement between competitors for the purposes of the Act.
On the other hand, a roster arranged by doctors to provide medical services to a hospital for the treatment of public patients, involving only doctors who are engaged and remunerated by a hospital on a per annum basis, is not regarded as an arrangement between competitors for the purposes of the Act.
Rosters arranged by doctors and a hospital
A roster arranged jointly by doctors and a hospital, which involves two or more doctors who are engaged by the hospital on a fee for service or sessional basis, would be considered an arrangement involving competitors for the purposes of the Act.
A roster arranged jointly by doctors and a hospital, involving only doctors engaged and remunerated by the hospital on a per annum basis, would not be regarded as an arrangement involving competitors.
A roster run between doctors considered to be competitors for the purposes of the Act must meet each of the following three criteria:
A key purpose of the roster must be to facilitate patient access to medical services
Rosters are necessary for doctors to balance their professional and personal commitments, and they are an important part of providing sustainable health services to the community, particularly in rural and regional Australia. The ACCC is satisfied that rosters with a key purpose of facilitating patient access to medical services (as opposed to restricting when a doctor may work) will not raise competition issues under the Act.
A roster that has a key purpose of ensuring patient access to medical services (and facilitating sustainable working hours for doctors), meets this criteria.
Doctors on the roster must be able to practise, even when not rostered on
While a rostering arrangement may specify the minimum hours that each doctor will work under the roster, it must not restrict when a doctor may practise. Each doctor must be able to practise at any time he/she chooses or accept additional hours of work, if offered.
The ACCC is satisfied that as long as doctors are not inhibited from working when not rostered on, should they wish to do so, a roster that allows a doctor to take a break in this respect will not raise competition issues under the Act.
Rosters involving hospitals
Where doctors provide medical services to hospitals for the treatment of patients, the effect of a roster may be that doctors are restricted from providing their services to the hospital when not rostered on. However, it is the purpose of the doctors in forming the roster which is relevant, not the effect of the arrangement once it has been put into place.
In other words, for the agreement to raise concerns under the Act, it is necessary to establish that a key purpose of the doctors arranging the roster, was to inhibit any roster doctor from providing their services to the hospital when not rostered on.
Doctors on the roster must be able to see any patients they choose
A rostering arrangement may specify the patients that each doctor will see pursuant to the roster, e.g. ‘patients of all the doctors on the roster’. A rostering arrangement must not, however, restrict roster doctors from also seeing their own patients or any other patients if they so choose.
Rosters involving hospitals
Where doctors provide medical services to hospitals for the treatment of public patients, the effect of a roster may be that doctors are restricted from providing their services to particular patients (e.g. accident and emergency patients only). However, as noted above, it is the purpose of the roster arrangement that is relevant. For the arrangement to raise concerns under the Act, it must be established that a key purpose of the doctors arranging the roster was to inhibit a roster doctor from providing their services to the hospital.
If a rostering arrangement meets all three criteria the ACCC is satisfied that it does not breach the Act.
If the rostering arrangement does not meet all of these criteria the arrangement may raise issues under the Act because a roster must not have the purpose of preventing, restricting or limiting the supply of medical services to patients, or dictate when doctors may not provide medical services, or dictate to whom doctors may not provide their services.
The Act prohibits exclusionary agreements. An exclusionary agreement is an agreement between competitors, including professionals, containing a provision which has the purpose of preventing, restricting or limiting the supply of services by parties to the agreement.
Participation in a roster does not change the application of the law to the way in which doctors must set their fees. Doctors are required to set their fees in a manner consistent with their practice structure. This structure will determine the application of the Act to fee setting.
Rosters between doctors practising within the same entity
A single company, legal partnership with no corporate partners, or trust is a single legal entity. All doctors practising within a single legal entity structured in any of these forms—either as directors, employees or partners—are considered part of the same entity and therefore not in competition with each other for the purposes of the Act.
Consequently, doctors who are engaged to provide medical services for a single legal entity can agree on the fees charged to patients seen by doctors practising within that entity without breaching the Act. This is not price fixing. This is an internal management decision about prices to be charged.
As outlined in diagram 1, company A can set the fees charged to patients seen by doctors Blue, Green and White. The establishment of a rostering arrangement between the three doctors will not affect their ability to collectively set their fees as they are all practising on behalf of company A.
Rosters between doctors practising through separate entities
A roster run between doctors practising through separate entities (which may be any combination of entities, such as companies, legal partnerships, sole natural persons or trusts), or within a legal partnership where one or more of the partners is a company, is considered an arrangement between competitors under the Act.
Each entity involved in such a roster must independently determine the fees charged to its patients.
The fact that all of the doctors are working under one rostering arrangement does not change this legal requirement. The ACCC considers that collective fee setting between separate entities is not necessary to operate a roster.
General practitioners should note that if their roster exists just between members of the same associateship, or the same partnership with at least one corporate partner, they can agree on fees charged to patients under certain conditions currently until 10 January 2007.
The conditions vary slightly with the factual circumstance of the general practice. For further details refer to the Guide for General Practitioners to the authorisation granted by the ACCC to the Royal Australian College of General Practitioners on 19 December 2002. For more information on protection from court action see below.
The Act prohibits competing doctors from collectively agreeing on the fees they will charge patients. This includes agreements which claim to recommend prices but which in reality fix prices by agreement.
Informed financial consent
In operating a medical roster that facilitates patient access to medical services, doctors practising through separate entities must not collectively agree on fees charged to patients seen under the roster.
The fact that two independent doctors happen to charge the same fee is not, of itself, evidence of price fixing. Illegal price fixing will occur if two or more doctors (who operate from two or more separate entities) have collectively agreed on fee schedules.
Each entity can, however, make its fee schedule known to other doctors operating in the roster for the purpose of obtaining informed financial consent from patients. Being aware of what other doctors charge is not considered to be price fixing.
Doctors will then be able to inform their patients of the likely fee the patients will be required to pay when attending other roster doctors (e.g. in an after hours situation). Doctors who exchange fee information to assist in obtaining informed financial consent from patients will not breach the Act, so long as they do not agree on what fees will be charged to patients.
There are a number of ways in which information on fees may be provided to patients. For example, an information sheet tabling the fees of each doctor may be formulated and distributed to the roster doctors. Patients may then be provided with details of other roster doctors’ fees where appropriate.
Rosters between doctors practising within the same entity
A single company, legal partnership with no corporate partners, or trust is a single legal entity. All doctors practising within a single legal entity structured in any of these forms—either as directors, employees or partners—are considered part of the same entity and therefore not in competition with each other for the purposes of the Act.
As stated above, any roster created and operated by doctors practising solely within the same entity is considered an internal arrangement for that business and not between competing entities. It does not raise any issues under the Act.
The entity may therefore also end its internal roster without breaching the Act. This is an internal management decision taken regarding the activities of that business.
Similarly, a hospital may end an internal roster arranged and run by the hospital that involves doctors engaged by the hospital without raising any issues under the Act.
As illustrated in diagram 1, company A may end a rostering arrangement that exists between doctors Blue, Green and White as an internal management decision of that company, without breaching the Act.
Rosters between doctors practising through separate entities
The following sets out when a rostering arrangement will be considered an arrangement between competitors. Whether competing doctors seek to independently withdraw from, or to collectively end such a roster, will determine the application of the Act.
A roster run between doctors practising through separate entities (which may be any combination of entities, such as companies, legal partnerships, sole natural persons or trusts) is considered an arrangement between competitors for the purposes of the Act.
A roster run by doctors within a legal partnership with one or more corporate partners is also considered under the Act as an arrangement between competitors.
Rosters involving associateships
A roster run within an associateship, or between associateships, will be an arrangement involving separate entities (which may be any combination of entities, such as companies, legal partnerships, sole natural persons or trusts) and is considered an arrangement between competitors for the purposes of the Act.
Rosters involving hospitals
A roster to organise the provision of medical services at a hospital may be arranged by the hospital, by the doctors, or a combination of both. Who organises the roster, and how the doctors on that roster are engaged and remunerated, will determine whether the roster is considered an arrangement between competitors for the purposes of the Act.
If the terms of a doctor’s engagement and remuneration (e.g. fee for service, sessional or per annum) are yet to be set with the hospital, a roster arranged between doctors (or doctors and a hospital) to organise the provision of medical services at the hospital, will be considered an arrangement between competitors for the purposes of the Act. Doctors in this situation should consider the issues below (Ending a roster) to ensure they do not breach the Act.
Rosters arranged by the hospital
As stated above, a hospital may arrange, run and end a roster to provide medical services to patients, using doctors engaged by the hospital, without risk of breaching the Act.
Rosters arranged by doctors
A roster arranged by doctors practising through separate entities to provide medical services to private patients at a hospital (e.g. anaesthetic services) is considered an arrangement between competitors for the purposes of the Act.
A roster arranged by doctors to provide medical services to a hospital for the treatment of public patients which involves two or more doctors engaged by the hospital on a fee for service or sessional basis, is also considered an arrangement between competitors for the purposes of the Act.
On the other hand, a roster arranged by doctors to provide medical services to a hospital for the treatment of public patients, involving only doctors who are engaged and remunerated by a hospital on a per annum basis, is not an arrangement between competitors for the purposes of the Act.
Rosters arranged by doctors and a hospital
A roster arranged jointly by doctors and a hospital, which involves two or more doctors who are engaged by the hospital on a fee for service or sessional basis, would be considered an arrangement between competitors for the purposes of the Act.
A roster arranged jointly by doctors and a hospital, involving only doctors who are engaged and remunerated by the hospital on a per annum basis, would not be an arrangement between competitors.
Ending a roster
Independent withdrawal from a roster by an individual entity will not breach the Act.
For example under diagram 2, if legal partnership C (operating via doctors Grey and Black) makes an independent decision to withdraw from the roster, that decision will not breach the Act.
Where several independent entities who are regarded as competitors for the purposes of the Act collectively decide to end a roster, they must consider the purpose of ending the rostering arrangement. Provided that the purpose of ending the roster is not to prevent, restrict or limit the supply of medical services to patients or a hospital by any roster doctor, the roster can be ended without breaching the Act.
Ending a roster for the purpose of preventing, restricting or limiting any roster doctor from supplying medical services to patients or a hospital, or from engaging in competitive conduct, may raise issues under the Act.
The Act prohibits exclusionary agreements. An exclusionary agreement is an agreement between competitors, including professionals, containing a provision which has the purpose of preventing, restricting or limiting the supply of services by parties to the agreement.
The focus of this prohibition is on the subjective purpose of the doctors in ending the rostering arrangement, not the effect of ending the arrangement.
In addition, section 45 of the Act is a general catch-all provision that prohibits a variety of agreements that have the purpose or effect (or likely effect) of substantially lessening competition in a market.
This principle applies to all business dealings, including professional services.
A process exists under the Act for the ACCC to grant protection (authorisation) from court action for anti-competitive conduct where those proposing to engage in that conduct demonstrate to the ACCC that the conduct is in the public interest.
The ACCC is required to undertake a rigorous analysis of the conduct in deciding whether it is in the public interest. The Act sets out a transparent public consultation process which the ACCC must follow.
The ACCC invites you to approach it if you are considering applying for authorisation. The ACCC can help you through the steps involved and identify the relevant information you need to include in your application.
ACCC Australian Competition and Consumer Commission
the Act Trade Practices Act 1974 (Cwlth)
anti-competitive conduct conduct prohibited by Part IV of the Act (or the competition codes of the states), specifically agreements between competitors (including professionals) to inhibit other competitors, fix prices, and divide customers between them—Part IV also prohibits the misuse of market power, exclusive dealing, resale price maintenance and anti-competitive mergers and acquisitions
This ACCC publication was developed in consultation with the Health Services Advisory Committee (HSAC). The Australian Government established HSAC to promote consultation and the exchange of information between the ACCC and health professionals on matters relevant to the application of the Trade Practices Act.
The ACCC recognises the valuable contribution of the following HSAC member organisations and representatives. However, it is noted that this is an ACCC publication, the contents of which do not necessarily reflect the views of the organisations or persons represented on HSAC.
Independent chair The Hon. Mr Tim Fischer
Australian College of Rural and Remote Medicine Professor Ian Wronski
Australian Consumers’ Association Mr Chris Field
Australian Divisions of General Practice Dr Robert Walters
Australian Medical Association Professor Kerryn Phelps
National Rural Health Alliance Ms Lesley Fitzpatrick
The Royal Australian College of General Practitioners Dr David Thompson
Rural Doctors Association of Australia Dr Ken Mackey
Trade practices solicitor and barrister Mr Alan Limbury
