The private practice committee (the PPC) remains very concerned about the actions of some private medical insurers (PMIs) and their influence on the private healthcare market. Over the last few years, the PPC has actively tried to seek ways to restore a more equitable and productive relationship between consultants, patients and insurers. Current legal advice is that it is lawful for PMIs to determine the amount they pay consultants (in the same way that they can for other suppliers). Furthermore, it is lawful for an insurer to cap the amount of spend on any type of claim even though this may make them less attractive to consumers.
Competition law precludes any act and agreement between undertakings that has the object or effect of distorting the given market. Collectively agreeing to boycotting a specific PMI is likely to have the effect of distorting the market in that it restricts supply of private practitioners to PMIs which will have effects on consumer choice and access. Any consultant entering into such agreement may be subject to sanctions by the Competition Markets Authority (CMA).
Further, competition law prohibits the BMA from recommending fees for private practitioners in relation to the work carried out for PMIs and from arranging boycotts to place pressure on PMIs to increase fees. Arranging a boycott of all or specific PMIs would pose a substantial risk of breaching competition law as collective boycotts are a recognised type of infringement by object. This risk applies to both individual private practitioners (who, as independent businesses / sole traders, will likely be viewed as an ‘undertaking’ for the purpose of competition law), and the BMA, who will be considered an ‘association of undertakings’ for the purpose of competition law.
As independent doctors, consultants are free to decline to sign up to contracts with PMIs which they are not satisfied with. It is also open to private practitioners to negotiate the terms with any given PMI which may include setting their own fees (if a doctor were to set his/her fee, a PMI (for example) is not compelled to agree to this and therefore the doctor may forego work for that particular PMI as terms cannot be agreed). Similarly, if a patient wishes to use private medical insurance to subsidise their private medical care, it would be up to the patient to negotiate this with their PMI (rather than the doctor) once they have chosen the consultant of their choice.
We would encourage private practitioners, who have concerns about their actions/position in relation to competition law, to seek their own legal advice.