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October 20, 2014

Competition for our attention

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Dara Gantly

Dara Gantly looks at the prospect of resolving the competition issue so as to allow full negotiations to take place on a new GP contract and the transformation agenda.

When one wants to speak to GPs, who does one speak to, if not the IMO? This somewhat obvious yet pertinent question — a rephrasing of what the Americans said famously about Europe — was recently raised by Fianna Fáil Senator Marc MacSharry during a Second Stage debate on the Health (Provision of General Practitioner Services) Bill 2011.

You may not agree with all of the Senator’s following sentiments, but he does have a point: “According to the Competition Authority [you don’t speak] to the union, so where is the line of communication? How can we get across to doctors they need to start taking on board some of the points we mentioned, from pricing, to availability, to out-of-hours access, and the non-gin and tonic belt locations which some doctors may not care to cover but which need to be covered?”

Leaving aside the colourful ‘gin-soaked’ terminology and the later references to GPs golfing every Wednesday (which you might find irksome coming from a Senator), the debate yet again raised the great elephant in the room that seems to be preventing any meaningful progress on a new GP contract.

While the Competition Authority (CA) has advised the Minister for Health that competition law should not in any way impede efforts to develop a new contract, it has also stated that the Competition Act protects the Minister in his dealings with the IMO. Protection from what, exactly? Well, while the CA says the IMO can negotiate on non-fee-related elements of the contract, discuss with the DoH an outline offer and relay this offer to its members, it will always be the Minister who ultimately makes the final decision on what the State will pay.

Despite a pledge in the Croke Park agreement to make “appropriate changes to the Competition Act and a transformation agenda for GPs”, this commitment has not been honoured, mainly due to a letter of advice from the CA to Hawkins House in August 2011, which stipulated the above conditions. It appears that the promised competition law exemption for the IMO cannot now proceed because of European rules.

However, the IMO believes this is somewhat of a moot point: the GMS contract is, it says, analogous to an employment relationship and as such, competition law does not apply. Last month, the union indicated that it was prepared to assert this right to negotiate in relation to the GMS contract, even through the courts, and threatened to pull out of an agreement struck with the Government on a reduction in GP fees for over-70s patients. It reminded Dr James Reilly the over-70s agreement was contingent on the amendment of the Competition Act, so as to remove any ambiguity of the trade union’s entitlement to negotiate on fees.

While I can’t imagine the IMO would be in favour of doing its business in the High Court on a regular basis, if the industrial relations machinery is just not working it may have no other option. Remember, we’ve been here before not too long ago over the NCHD contact. Certainly a ‘letter of comfort’ from the Minister to the IMO will be ‘cold comfort’ for the union.

The EU/IMF memorandum last week confirmed that changes are to be introduced to the Competition (Amendment) Bill 2011, but also that “no further exemptions to the competition law framework will be granted” unless they are consistent with the EU/IMF deal.

So what’s the alternative? Under a possible ‘messenger model’ (where doctors engage a third party to negotiate), the Minister could issue his contract pre-setting the fees.

Doctors would then agree the contract on an individual basis. If uptake was low, the Minister may decide to republish the fees schedule at a higher level. Sounds a bit messy to me.

Taking on board the point made by Senator MacSharry, the Minister for Health agreed in the Seanad that it was always easier to deal with just one leader. “The Americans ask who they should go to when they want to talk to Europe. I look at the situation in Iraq and see that it is far easier to deal with one leader than with 25 different warlords.

“The IMO still has a key role and it can still discuss many aspects of care and work. However, the Department will retain the right to set the fee and it is in that regard the Competition Authority is concerned.”

So, has Angola been replaced by Iraq? God help us.