Interpretation of competition law hampers changes in healthcare, says former attorney general, writes PRISCILLA LYNCH
A FORMER attorney general has said the Competition Authority was incorrect in its interpretation of competition law, when it deemed illegal negotiations on fees between the State and medical representative bodies for the provision of public health services.
According to Paul Gallagher, who was Irish attorney general between 2007 and 2011, the authority’s position is wrong “as a matter of law”, and has created significant uncertainty on the part of the representative bodies about what they can and cannot do, and hampered the Government in implementing necessary healthcare changes.
While he said he had great admiration for much of the authority’s work, Mr Gallagher alleged its suggestion in October 2008 that the Government could be breaking the law if it negotiated with the Irish Medical Organisation about the axing of over-70s medical cards was “extremely unhelpful” and created obstacles to resolving an important issue.
Speaking at the CEO Health Forum in UCD last week, Mr Gallagher said: “GPs were all charging the same fees to the Government for the medical card services and therefore the idea that they were somehow combining on price by entering into negotiations is difficult to understand.”
He said he firmly believed efficient implementation of changes in healthcare service provision required consultation with representative bodies. While the authority recently provided Minister for Health James Reilly with clarification of its position on competition law, Mr Gallagher said “this has not dispelled the uncertainty and, in any event, is a wholly unsatisfactory way of dealing with such an important issue”.
However, Carol Boate, advocacy division manager of the Competition Authority, told the forum that it had not threatened anyone with jail regarding breaches of competition law, but admitted its 2008 statements had been unclear and created uncertainty.
She said further documents published since then had clarified the situation and stressed the authority was keen for the Government and medical representative bodies to sit down to discuss new contracts.
Ms Boate added there was no reason why wide-ranging discussions, including the provision of information about medical professionals’ costs, on new contracts could not take place between the parties once it was the Minister who makes the decision on fees.
Meanwhile, a leading competition expert told the forum that Ireland’s planned universal health insurance system may be subject to competition law despite Government statements to the contrary.
The programme for government states that as a statutory State-guaranteed system of health insurance, the UHI system, due to be introduced in 2016, will not be subject to European or national competition law. However, former chairman of the Competition Authority, Declan Purcell, said if there was a choice of health insurance company, and patients were able to choose their pharmacist, dentist, GP and other health service providers, then competition law would apply.
“So that statement in the programme for government is, in my view, the most important thing to clarify from a competition perspective. Indeed, I’d welcome urgent clarification of it before the publication of the White Paper or before too much time has passed,” he said.
Mr Purcell said that assuming competition law continued to apply to healthcare under UHI, it must be clarified if the new system would continue to feature ex-post Competition Act enforcement and whether the Minister for Health would give concurrent competition powers to a specific health regulator.
Top-level healthcare executives from across the public and private sector attended last week’s forum, which looked at the role of competition within healthcare and how changes in policy affect it.