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. Some rostering arrangements may be considered anti-competitive and there are three criteria to satisfy to ensure arrangements do not breach the Act.
Some rosters could be considered an 'arrangement between competitors' under the Act. These types of rosters include those that are:
- run between doctors practising through separate entities (which may be any combination of entities, such as companies, legal partnerships, sole natural persons or trusts)
- run by doctors within a legal partnership where one or more of the partners is a company
- run within an associateship, or between associateships
- involving two or more doctors who are engaged by the hospital on a fee for service or sessional basis
- arranged where the terms of a doctor’s engagement and remuneration are yet to be set with the hospital
- arranged by doctors practising through separate entities to provide medical services to private patients at a hospital (for example, anaesthetic services)
- 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.
Rosters that involve only doctors engaged and remunerated by a hospital on a per annum basis are not considered to be an arrangement between competitors under the Act.
If a rostering arrangement meets the following three criteria the ACCC is satisfied that it does not breach the Act:
- A key purpose of the roster must be to facilitate patient access to medical services.
- Doctors on the roster must be able to practise, even when not rostered on.
- Doctors on the roster must be able to see any patients they choose.
Access to medical services
The ACCC is satisfied that a medical roster developed to facilitate patient access to medical services (as opposed to restricting when a doctor may work) does not raise concerns 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.
Ability to practice
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.
Where doctors provide medical services to hospitals for the treatment of patients, the effect of a roster 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.
Access to patients
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.
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, 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.