OH 2020/0612
Answer
No.
Context
A group of haematologists in private practice, who operate across various locations under a single brand with a central point of contact, asked if they could agree to all charge the same fees. Behind the brand, they each operate their own private practices with separate legal entities, separate ABNs and so on. They also asked if anything changed if they all agreed to bulk bill everyone.
Relevant Legislative Provisions
Competition and Consumer Act 2010
Other relevant materials
1. The Australian Competition & Consumer Commission (ACCC) has excellent material on its website at this link, specifically dealing with medical professionals.
2. Academic journal article published in the Journal of Law and Medicine, with detailed analysis of the Constitutional foundations of Medicare: Medicare Billing Law and Practice: Complex, Incomprehensible and Beginning to Unravel. https://www.ncbi.nlm.nih.gov/pubmed/31682343
Case law
TPC v Nicholas Enterprises Pty Ltd (No 2) (1979) FLR 83
Top Performance Motors Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286
Queensland Cooperative Milling Association Ltd/Defiance Holdings Ltd, re proposed merger with Barnes Milling Ltd (1976) ATPR 40-012
ACCC v Flight Centre [2016] HCA49 at [69]
Departmental Interpretation
mbsonline.gov.au (accessed 30 June 2020)
“GN.1.3 Medicare benefits and billing practices
Key information on Medicare benefits and billing practices
Medical practitioners are free to set their fees for their professional service.”
Detailed Reasoning
The starting point for this answer is to state that Australian doctors are free to set their fees as they wish. This is enabled by Section 51(xxiiiA) of the Australian Constitution, which has been interpreted on numerous occasions by the High Court. To learn more about this you can read the above cited academic article.
However, whilst you are free to set your fees as you wish, the Constitution does not mean you can charge whatever you like in any circumstances, nor does it override your obligations under other laws.
One common example of when you are prohibited from charging fees is when you bulk bill, and another is when you practice in a public hospital, where it is illegal to charge any fees at all to public patients.
In addition, at all times you are required to comply with Australian consumer law which is set out in the Competition and Consumer Act 2010 (the Act). The Act prohibits anti-competitive behaviour.
In the scenario put by this question, the doctors were clear that they were all operating as separate legal entities. Therefore if they were to all agree to charge the same fee for their services, this would be anti-competitive behaviour and a breach of the Act, because they are trading and collecting payments through their separate legal entities. However, simply knowing what each other charges is unlikely to breach the Act because that is normal commercial behaviour, but there is a fine line.
GP practices have been granted a specific exemption in regards this mode of conduct, which you can read at this link.
In regards the second part of the question regarding an agreement to bulk bill all patients, the ACCC has adopted a position on this, which applies to all medical practitioners not just GPs. Whilst strictly speaking this is price fixing and therefore illegal, the ACCC has discretion over which types of cases it chooses to prosecute and has stated it does not intend to prosecute an agreement between doctors to bulk bill all patients, because there is no harm to patients and bulk billing is the lowest price anyone would charge. But please note this would need to be an agreement to bulk bill ALL patients of the practice not just some. You can read more on the ACCC website at this link.
Examples and other relevant information
As a rule of thumb, each separate legal entity should make its own decision about what fees it will charge independently. You can know each others fees, but should maintain your independence at all times about what you choose to charge your patients.
Who this applies to
Everyone.
When this applies
Always.