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Competition and Markets Authority Order – Q&A

On 6 April 2015, an Order from the Competition and Markets Authority (CMA) came into force affecting the relationships between doctors and providers of facilities in the independent sector.

The Order followed an investigation that raised broader issues about how doctors handle conflicts of interest and share information with their patients. As a result, we’ve put together this Q and A to make doctors aware of the order and remind you of our guidance on these matters.

Who will be affected by this Order (pdf)?

Any clinician who can:

  • refer patients for treatment or tests at an independent hospital or
  • has practising privileges at an independent hospital.

What is meant by independent hospitals?

The order covers private patient units on NHS sites as well as stand-alone hospitals.

What was the scope of the CMA investigation?

The investigation covered England, Wales, Northern Ireland and Scotland. It looked at healthcare funded by individuals directly (“self-pay” patients) or through medical insurers. It concluded that some features of the market prevent, restrict or distort competition, and the Order is intended to address these concerns.

What has been banned?

Incentive schemes that could induce doctors to give preference to the facilities of a particular independent hospital operator when they treat or refer patients.

The order gives some examples of the types of incentive that are now prohibited. Some types of incentive are banned altogether and others are allowed under certain conditions (for example, if you pay a fair market price for the benefit and the provider publishes information about the benefit you’ve received).

What about share options?

There are strict restrictions on equity participation schemes, for the clinician and immediate family. See section 18 of the Order.

What about small perks like subsidised meals?

These are acceptable providing they are available to all people working at the facility. Proportionate and reasonable corporate hospitality is also allowed, providing it is not intended to induce a clinician to make referrals. The Order explains what benefits are still allowed.

What does the Order say about fees?

The Order sets out two ways to increase fee transparency. This part of the order is not yet in force but says consultants must

  • give patients information about the estimated cost of a consultation or course of treatment, along with other information
  • provide information to an organisation (the Private Hospital Information Network) about their fees

Good medical practice says you must tell patients about your fees and tell them if any part of the fee goes to another healthcare professional.

What about other incentive schemes?

The CMA order applies only to incentives offered by independent hospital operators but Good medical practice says you must not accept incentives, from any source, that might be seen to affect the way you prescribe for, treat or refer patients or commission services for patients.

What will the CMA do if I breach their Order?

The CMA can take legal action against hospital operators or doctors who breach the Order.

Will the GMC take action against doctors who have accepted incentives?

We look into any individual cases raised with us and consider each case on its own merits.

Serious or persistent breaches of our guidance that put patients at risk or undermine the public’s trust in the medical profession will put a doctor’s registration at risk. This is a matter we take very seriously, which is why we have emailed doctors to alert them to the CMA’s order and our existing guidance.

We are keen to help doctors to avoid being the subject of fitness to practise action by ensuring they are aware of our guidance on financial and commercial arrangements and conflicts of interest. With that in mind, we have e-mailed doctors to alert them to the CMA’s order and our existing guidance. We are also working with responsible officers to encourage them to help raise that awareness with the doctors they work with. A failure to follow our guidance following such reminders would be something we would be concerned about.

Where can I get more information and advice?

The CMA has published an explanatory memorandum (pdf).

If you have questions about how the Order might affect you personally, you will need to seek legal advice. Your defence body may be able to advise you.