Clubs and Cartels

The big news this week has been that the ACCC is on the prowl again. Medical work practices are not new ground here - the ACCC has previously stoushed with the RACS over surgical training, as well as Queensland obstetricians and more recently Adelaide heart surgeons (my previous posts ACCC Strikes Again and Bleeding Hearts in Private Hospitals). In fact the ACCC has so much interest in the medical industry that it provides an Info Kit for doctors.

The new case now concerns medical accreditation practices at St Vincent's Private Hospital in Sydney, in particular, the practice of limiting appointment of new anaesthetists to those who already hold appointments at the nearby St Vinnie's Public hospital.

In general, most private hospitals have Medical Accreditation Committees that review the qualifications of any medical staff that wish to work at that hospital. The majority of private hospitals are quite keen to have as many doctors on their books as possible and to make the accreditation or credentialling process as simple as possible, because generally more doctors means more patients (and more business).

In the case of anaesthetists, they generally provide a service at the request of a surgeon. With the exception of staff anaesthetists who are paid directly by a private hospital to be available full or part time for urgent or emergency cases, the majority of private anaesthetists are paid fee-for-service by the patient or their insurance fund. Patients generally choose their surgeons but not their anaesthetists, and therefore the surgeon-anaesthetist team usually comes as a single package.

A surgeon will choose to work with a specific anaesthetist in the private setting because they are competent, they work well with the surgeon and his team (often having worked together for years), and they are available to do a particular set of cases at a particular time. Usually if a surgeon moves to another private hospital the anaesthetist will follow, rather than the other way round. Therefore it makes sense that if a private hospital wants to attract a new surgeon to bring work over that they encourage simple, rapid accreditation by the associated anaesthetists.

In contrast, in a public hospital the surgeon has no say who their anaesthetist will be. It could be a junior registrar, or a seasoned consultant. It could be someone they have never met or worked with before. We have to trust that somebody, somewhere (usually the public hospital's appointments committee), has decided that this anaesthetist is up to the job. In most cases, there are no problems as many aspects of anaesthetics are commonplace and transferable. Having a pool of staff anaesthetists makes it easier to roster for emergency cover, or to squeeze as much work as possible from a smaller group of staff - essential in any cash-strapped public hospital - at the cost of breaking up the regular surgeon-anaesthetist team. Obviously for more complex operations there will be more in-depth decision making and efforts to pair experienced and familiar surgeons and anaesthetists (as well as other theatre staff) together.

So what is going wrong here at St V's? Well, to the frustration of the hospital management and the surgeons, an arbitrary rule has been applied to limit the accreditation of new anaesthetists. This means that otherwise qualified and capable anaesthetists are unable to work at that hospital and surgeons who go to that hospital must choose from the anaesthetists who already work there. It is effectively a closed shop and keeps those anaesthetists who already have appointments busy with private work, and potentially allows them to raise their fees above what might be market rates at a hospital with a more liberal accreditation process.

Unfortunately it means that surgeons are forced to work with anaesthetists that they may not wish to work with, as well as discouraging them from bringing work to that hospital, much to the disappointment of hospital management.

Sadly, this is not the only private hospital in Australia that engages in this type of activity. Sometimes it is instigated by the medical staff, sometimes it is instigated by management as a business decision (usually if they employ the anaesthetists directly). Sometimes the ACCC gets it wrong, but by my reading this is one that they have got right and things clearly have to change.

Links:

• ACCC demands answers from St Vincent's - The Australian
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  ACCC demands answers from St Vincent's
  The Australian
  via AAP | August 17, 2009
  
  THE entire team of anaesthetists at St Vincent's Private Hospital is under investigation by the consumer watchdog for acting as a cartel.
  
  The Australian Competition and Consumer Commission (ACCC) last week demanded the group of 30 doctors, who are allocated nearly all the hospital's anaesthetic work, justify its membership rules, the Sydney Morning Herald reports.
  
  The investigation comes after the hospital applied to the commission last year to rule it could continue the practice of preventing outside anaesthetists from working in its operating theatres, even when requested by a surgeon.
  
  Individual doctors face possible fines of up to $500,000 if they are found to have breached competition laws.
  
  The private hospital's pool is restricted to anaesthetists who also work at St Vincent's Public Hospital.
  
  The process is supposed to be competitive and to benefit public patients, but has been criticised for being skewed towards doctors trained at St Vincent's.
  
  The hospital withdrew its application in December, but the commission is investigating fresh complaints from anaesthetists who say they are still locked out of work at St Vincent's.

  
  
  
• St Vincent's a closed shop, said leading anaesthetist - SMH
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  St Vincent's a closed shop, said leading anaesthetist
  Sydney Morning Herald
  Julie Robotham Medical Editor
  August 19, 2009
  
  THE anaesthetist representing doctors in the St Vincent's Private Hospital cartel investigation told professional colleagues that work allocation practices there would not change, despite a deluge of adverse submissions collected by the competition regulator during its initial, later abandoned, inquiry last year into the scheme.
  
  Minutes of a meeting of the NSW branch of the Australian Society of Anaesthetists, obtained by the Herald, reveal Gregory Deacon's resistance to the idea that closed-shop anaesthetic rostering might breach the Trade Practices Act.
  
  According to the minutes, from February, ''GD reminded committee members that St Vincent's Hospital is a privately owned business and therefore has the legal right to appoint staff, including doctors, as it chooses … GD felt the appointment process at St Vincent's Hospital was unlikely to change as a result of the application to the ACCC.''
  
  At issue is the practice of allowing only the limited number of doctors with an appointment at St Vincent's Public Hospital to work at the private facility. The private hospital argued this ensured adequate anaesthetic cover for the public hospital. However, NSW Health, which funds the public hospital, told the commission that claim was specious because there was a surfeit of anaesthetists in the eastern suburbs willing to work with public patients.
  
  Other doctors told the commission the real intention was to keep lucrative private work within a select group of associates.
  
  The commission last December dropped its first examination of the arrangement when St Vincent's withdrew its application to be exempted from the law.
  
  Now the anaesthetists - who as a formal association manage anaesthetic staffing for the hospital - are again under ACCC scrutiny, following new complaints from doctors excluded from working there.
  
  Dr Deacon, as the public officer representing them, must respond by Friday to the commission's questions regarding the group's history, policies and reasons for refusing work to qualified doctors. He refused to comment last night.

  
  
  
  
• Elite hospital old boys' network targeted by competition watchdog - SMH
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  Elite hospital old boys' network targeted by competition watchdog
  Sydney Morning Herald
  Julie Robotham Medical Editor
  August 17, 2009
  
  THE entire team of anaesthetists at St Vincent's Private Hospital - more than 30 doctors - is under investigation for acting as a cartel.
  
  The Australian Competition and Consumer Commission is moving to end what other doctors claim is a decades-long history of restrictive behaviour by an old boys' network which is bent on protecting its exclusive access to some of Sydney's most lucrative private operating lists.
  
  The ACCC last week demanded the group - a consortium of doctors employed as independent contractors but allocated nearly all the hospital's anaesthetic work - justify its existence and membership rules and defend how its members set patients' fees.
  
  Other doctors said giving anaesthetic shifts to a limited pool of specialists could also compromise patient care, barring surgeons from choosing anaesthetists experienced in particular operations.
  
  The commission's move could see individual doctors hit with fines of up to $500,000 if they are found to have breached competition laws. It comes after the hospital last year applied to the commission to rule it could continue the practice of preventing outside anaesthetists from working in its operating theatres, even when requested by a surgeon.
  
  The private hospital's pool is restricted to anaesthetists who also work at St Vincent's Public Hospital - appointed through what the hospital describes as a, ''competitive process '' intended to benefit public patients, but which others say includes a system of patronage skewed towards doctors trained there.
  
  The application prompted a huge backlash, as individuals and specialists' groups told the commission the closed roster was unjustified and unique in NSW.
  
  In its submission, NSW Health, which funds St Vincent's Public Hospital, said public patients did not benefit from the exclusivity arrangement, because there was no, "current or foreseeable shortage of anaesthetists," in the eastern suburbs, and, "indeed if anything there is an oversupply''.
  
  The hospital withdrew the application in December and is understood to have told the doctors, who effectively run the anaesthetic department and charge some of Sydney's highest rates, to change how they allocate work.
  
  But the commission is now investigating new complaints from anaesthetists who say they are still locked out of work at St Vincent's Private.
  
  Early this year the hospital's executive director, Robert Cusack, signed a rejection letter saying there was, ''sufficient anaesthetic cover within the existing cohort of anaesthetists,'' and the candidate therefore, ''did not satisfy a business need of the hospital.''
  
  Despite this, Mr Cusack is understood to be furious with the anaesthetists' position and to have told them he will not pay their legal costs or any fines.
  
  An anaesthetist, David Bollinger, told the Herald : ''I've had a professional relationship with a surgeon I've worked with for 15 years, and he moved to St Vincent's and they won't let me work there. It's … mean-spirited, and bordering on unethical.''
  
  Another anaesthetist refused work said: ''St Vincent's is very highly regarded in the community [but] the way they do things is not necessarily in the best interests of patients … it's in the best interests of themselves.''
  
  Gregory Deacon, public officer of the St Vincent's Private anaesthetists' consortium, declined to comment, saying the matter was being handled by lawyers. The hospital also refused to comment, citing the ACCC proceedings.

10 Year Challenge

Seasoned readers may recall my previous post "10 Years in Limbo" about the 10 year moratorium placed on overseas-graduated doctors.

The 10 Year Moratorium applies to New Zealanders as well, as despite their special visa status they are not considered permanent residents even when enrolled in Australian Medical Schools, and the only way around this is to obtain permanent residency prior to commencing Medical School in Australia.

Well, Dr Mike Belich wants to do something about that, and he has challenged the validity of the 10 year lockout and is currently going through the courts, as reported in The Australian. To be honest, I don't really understand his argument for seeking an exemption from the current rules... but I guess this is how precedents are set.

No doubt all the New Zealander's over at Paging Dr will be all excited. I better go let them know...

GP goes to court fighting country duty - The Australian
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GP goes to court fighting country duty
The Australian
Adam Cresswell, Health editor | August 15, 2009

A NEWLY qualified general practitioner has launched a David and Goliath legal challenge to the head of Medicare, filing a Federal Court action over a ruling he says will force him to abandon his home and partner and spend the next 10 years working in the bush.

Byron Bay doctor Mike Belich passed his postgraduate exams to qualify as a GP three months ago but is on borrowed time in the northern NSW coastal resort because of a retrospective ruling by Medicare that he was an overseas student when he enrolled at the University of NSW in 1999.

The ruling means he is subject to a moratorium set up by the Howard government in 1996 that forces overseas-trained or foreign-origin doctors to work for 10 years in the outback before attaining the right to practise where they like under Medicare.

Belich could not apply for permanent residency when he first moved to Australia with his family at age 14 because as New Zealanders they were considered to be, effectively, permanent residents already. He became an Australian citizen while at university, but later found out that the day he started medical school was the cut-off point used to classify him as an overseas student. He's challenging the ruling as unfair and beyond parliament's original intentions.

If successful his case, lodged with the NSW registry of the Federal Court this week, could affect up to 100 other doctors of New Zealand origin who, it is understood, may be in a similar position.

Belich tells Weekend Health that while at university he was treated the same as a local student, to the extent that he graduated with a HECS debt.

He was first informed of Medicare's decision to classify him as an overseas student when he applied to join the GP training program, more than a year after he had qualified as a doctor and when an Australian citizen.

He says his case is a fight for "natural justice and transparency".

"They have gone against the intention of the law, and have acted in a way to get me and 100 other people into a 10-year binding contract where we had no idea (this would apply)," Belich says. "I'm not going to work where they want me to work ... the government has spent all this money training me as a GP, they are short of GPs and they need a GP here in Byron."

Belich, who has recently bought a house with his partner in Byron Bay, says subsequent attempts to overturn the decision - including direct appeals to then federal health minister Tony Abbott and his successor Nicola Roxon - have brought sympathetic noises but no practical concessions.

The situation has been in limbo during Belich's four-year period of GP training, when he was allowed to continue working in Byron Bay under a temporary exemption from the 10-year rule.

But with his GP fellowship secured, the exemption is due to expire on October 19. Belich says he cannot comply with the 10-year rural service order because his partner is unable to leave the area under the terms of a Family Court order granting her former partner access to their two children.

Belich's solicitor Adam van Kempen, partner with the Byron Bay law firm Bottrill van Kempen, says Belich is asking the Federal Court to make a declaration that Belich is not a former overseas medical student under the terms of the Health Insurance Act.

Further, the case, which cites the chief executive of Medicare Australia as the respondent, seeks a declaration from the court that the act does not prevent Medicare benefits being paid in respect of services Belich provides.

Other doctors who may be affected by the outcome of the case will be New Zealanders who study in Australia under the same conditions as Australian students but who later are told by Medicare that different rules will apply, van Kempen says.

"The contention is that the legislation has captured this group of people and it was an unintended consequence of the legislation," van Kempen says.

Given the October 19 deadline, van Kempen says he expects there will be an application for the case to be heard urgently.

In a letter sent by then Royal Australian College of General Practitioners president Michael Kidd to Abbott in July 2006, Kidd says it is "evident ... that the Department of Health and Ageing's classification of Dr Belich as a 'former overseas medical student' appears to be a contradiction to the information publicly available" from the Department of Family and Community Services,

Department of Education, Science and Training, Department of Immigration and Multicultural Affairs and other agencies.

Kidd concludes that the college believes the moratorium should not apply to Belich and requests Abbott "use (his) ministerial discretion ... to overrule this restriction and allow Dr Belich to practise freely".

A Medicare Australia spokeswoman says it would "not be appropriate ... to comment on foreshadowed legal proceedings".