Australian Competition and Consumer Commission (ACCC) has warned doctors against operating closed shops and told them firmly they are not above the competition law. The Commissions's chairman Graeme Samuel last week brushed aside as untenable the claims that "patient care" somehow overrode other laws.
He also called upon the Australian Medical Association to change the "culture that the medical profession should be exempt from the Trade Practices Act".
Advertisement"Sorry, there is no one else who is exempt and there is no reason you should be."
Samuel was speaking after the ACCC successfully sued two eminent Adelaide heart surgeons for anti-competitive conduct. Federal Court judge John Mansfield found on Thursday that John Knight and Iain Ross had breached competition law between 2001 and 2004 for preventing qualified cardiothoracic surgeon Craig Jurisevic from practising heart surgery in Adelaide.
The pair also admitted they attempted to enter into a "no-compete" arrangement with another heart surgeon, James Edwards, which meant they would not take private cases at his hospital if he agreed not to work at theirs.
Justice Mansfield found that while the respondents acted in good faith and did not know they were in breach of competition law, they effectively operated a closed shop that inhibited the entry of other surgeons to the Adelaide heart-surgery market.
He imposed a civil penalty of $55,000, plus $5000 towards the ACCC's legal expenses, on both Dr Knight and Dr Ross.
Dr Jurisevic said he was considering a civil action for loss of income, estimated at more than $2 million.
The full-time thoracic surgeon is also an Australian Army reservist and served with Australian forces in East Timor last year, receiving the Australian Service Medal in recognition of his efforts.
He also spent a month in the frontlines of the war-torn Serbian province of Kosovo in 1999, as well as a year in the Palestinian territory of Gaza in the early 1990s.
Meantime the South Australian president of the AMA, Peter Ford, called on the ACCC to recognise that doctors must sometimes work "in association" and that this did not mean "collusion".
"The ACCC needs to look at the context of doctors working as a group ... where its rulings can conflict with clinical scenarios," Dr Ford said.
For example, he said obstetricians working in a maternity unit could provide a better service if the staff and doctors "know each other well".
"If you have the door open for all-comers it may cause problems for that unit," he said.
And competition law also created confusion among other specialist doctors who work in teams, in setting their fees and in deciding which doctors would be in the team and who would be left out.
"In a team setting there is not only the issue of fees but also clinical considerations that don't apply in private business situations," Dr Ford said.
In 2002, the ACCC won an action against three obstetricians in Rockhampton, Queensland, who had agreed on higher fees if they treated the others' patients.
The action resulted in one of the doctors leaving Rockhampton, reducing obstetrics services in the region.
The AMA called it a "witch hunt".
Last month, in a rare win for doctors, the ACCC granted an authorisation to GPs working in the same practice, to allow them to set the same prices for consultations and hospital services.
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