Doctors who practise as private practitioners are regarded as carrying on a business and are therefore subject to the provisions of the Competition and Consumer Act 2010. In response to industry feedback, this page outlines some of the ways the Act applies to the medical profession and how doctors can work within the law to protect both themselves and their patients.
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 also protects doctors’ rights if other doctors or suppliers act in an anti-competitive way towards them.
In order to comply with the Act, members of the medical profession must take care not to:
- use unclear criteria for credentialing or admitting rights at hospitals to restrict the trade of some professionals
- allow competing specialists to threaten boycotts at hospitals to prevent other specialists from being credentialed there
- make agreements with associates or partners operating as separate legal entities on patient fees or joint negotiations with suppliers, financial service providers or landlords unless they have gained an authorisation from the ACCC.
- act unconscionably by using a superior commercial position to subject another party to, or force them to accept, harsh or oppressive behaviour
- employ unfair tactics or attempts to unreasonably extract benefits from another business or professional by using their size or bargaining power.
Medical professionals must not mislead other businesses by misrepresenting:
- the quality, sponsorship, approval, performance characteristics, accessories, uses or benefits of goods or services offered
- that a business has a sponsorship when it doesn’t
- costs or fees
- credentials and areas of expertise.
To ensure compliance with the Act you must take care with:
Doctors are obliged by common law and professional practice obligations to provide sufficient information to ensure informed consent by patients. This includes:
- risks, side effects, permanency of outcome, and other aspects of the nature and quality of treatment
- alternative treatment options and the consequences of not having treatment
- post-treatment care and potential complications
- charges, including for ancillary and add-on services.
Omissions may be crucial. While there is no general duty of disclosure under the Act, you should ensure the combination of what is said and not said, will not give patients the wrong overall impression.
Misleading patients and unconscionable conduct
Patients can be physically, psychologically or financially affected by misleading conduct, and these effects can be long lasting. It is essential that patients be given honest, accurate and complete information in a form they can understand.
Under the Competition and Consumer Act, members of the medical profession must take care not to:
- mislead patients relating to fees, procedures or outcomes
- use misleading advertising relating to qualifications, area of expertise, fees, procedures or outcomes
- act unconscionably by acting in bad faith and deliberately taking advantage of patients who are disadvantaged by:
- ignorance of important facts that you know but they don’t understand
- financial problems
- infirmity or age
- lack of understanding of the nature of the transaction
- lack of assistance or explanation when these are necessary
- a special disadvantage that impairs their capacity to judge what is in their best interests, such as English being their second language or situational factors causing a lack of practical alternatives.
Take the following steps to ensure you treat patients fairly and do not mislead them:
- don’t use jargon – use simple explanations, back up your claims with facts and correct any misunderstandings fully and promptly
- explain all possible alternative treatments and consequences
- explain whether a procedure is essential or elective
- when referring patients, always advise them of any actual or potential conflict of interest with the provider
- give patients full contact details of other medical professional involved in their care
- maintain full and accurate patient records to help clarify and resolve any issues that might arise
- if you don’t know what the cost of a treatment will be, give an estimate including all relevant information and explain the limitations of the estimate
- explain all possible additional costs, such as specialist charges and rehabilitation costs.
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