Competition law and locum GPs

This guidance aims to dispel confusion around competition law and the NHS to help locum GP doctors share information about their rates.

Audience: GPs
Last reviewed: 24 March 2022
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About this guidance

Previously, there has been a misconception that if a locum GP doctor was to disclose the rate they charge an existing employer, they would be at risk of being at breach of competition law and could be accused of price fixing.

 

Competition law additions

This guidance is based on specialist QC advice and has taken note of relevant Government information on competition law. Case law determines that the NHS is not subject to competition law.

 

Our position

The BMA obtained legal advice on this matter and can confirm that:

  • Locum doctors are permitted to share freely the rate that they charge an existing employer for their services.

This means that locum GPs can share with colleagues and peers the rate per session that they charge an existing employer, such as a practice or out of hours provider. The position is clear that the sharing of information is not in breach of competition law.

However, locum GPs must not create agreements among themselves as a group to work for no less than a certain amount within a specific locality or setting. This may be considered a breach of competition law because the group (or ‘cartel’) could be seen as driving up rates artificially, and the provider may argue that this has the effect of distorting competition and start legal proceedings against the group or individual associated with the agreement.

Disclosure of rates information can take place in different ways: within direct conversations, via forums or local groups chats. The BMA advises locum GPs that while rates can be shared, it is important that the purpose of doing so is for transparency and information only.

Sharing your rate may enable other locums to re-evaluate their charges and negotiate a different rate for themselves, but this would need to be done on an individual basis as opposed to a collective decision to charge a certain rate.

 

Case study example

Appropriate response

If a colleague from your area asks:

‘Do you know what the current locum GP pay per session is in the X area?’

You could respond:

‘I work for a surgery in X location and I charge £Y amount per session’

The above statement discloses the rate and that this is being charged to an existing employer. It does not offer advice and is simply for informational purposes. Such information can be shared in any form, via direct conversations or on a digital platform, as long as doing so is not in breach of the rules set by the chat moderator.

Inappropriate response

However, you should not respond:

‘I work for £Y amount per session in X area, you and nobody else should work for any less than that amount’

The issue with the above statement is twofold:

  1. You have not confirmed that the rate is being charged to an existing employer.
  2. You have advised others not to work for an amount less than yourself, effectively creating a ‘cartel’ and you could be accused of price fixing. You could be taken to court for being in breach of competition law.

Any information shared should be done so without agenda and exclusively in the interest of transparency and knowledge sharing.

 

Private practice

All private practice is subject to competition law. Doctors undertaking private work should not disclose their rates. Private practice doctors should not work with others to set minimum rates for services as this would be construed as creating a cartel. Likewise, it will not be lawful for the BMA to assist or facilitate such breaches of competition law, and the BMA cannot suggest pricing for such medical services.

The BMA is allowed to provide information to guide doctors as to how long a job is likely to take to do. For instance, we can say that providing a medical report to accompany a firearms licence should take XX period of time. We can also remind doctors of the various overheads they face and discuss how to apportion these in order to recover their costs for the same. Doctors however must determine for themselves how to price their own labour.

The BMA has produced separate guidance which outlines considerations to take into account when setting your own fee.

 

NHS work – individual locums and third-party providers

When an individual doctor is providing locum services to an NHS employer, the legal position is clear that they can disclose the rates they charge for this service to others because the NHS is not subject to competition law. Subsequently, the BMA may negotiate rates on their behalf, and likewise we can suggest minimum rates under which such employed doctors can work, for example NHS overtime, without a breach of competition law.

However, the position is less clear when doctors are providing locum services through agencies, partnerships, chambers and limited companies (deemed ‘Third Party Providers’). In this case there is a real argument that, because there exists a market of locum agencies providing services to the NHS, that by advising rates to these groups the BMA could be accused of distorting competition between locum agencies. This argument may apply even though the BMA is not an agency itself.

Given that the BMA’s recommendations to members as to the rates at which they should work could impact upon the rates that locums would be willing to provide their services via locum agencies, the BMA cannot safely advise upon the rates which locums, who are not employed, should provide their services at.

For NHS work

  • If you are an employee, the BMA can help you set your own overtime rates for your existing employer.
  • If you are a sole trader locum, you are allowed to disclose the rate you charge an existing and frequent employer but should not collude to set minimum rates with others.
  • If you are a locum and work via an agency or limited company, there is insufficient case law, the BMA would advise that you do not disclose your rates with others.

For private work

  • All private work is bound by competition law and you should not disclose your rates.

 

How we can help

If you are concerned and would like some advice on what can and can’t be shared, please contact [email protected].