The HSE's insistence that negotiation of fees is no longer possible under the Competition Act has angered dentists and pharmacists, writes Theresa Judge
Dentists and pharmacists are calling on Minister for Health Mary Harney to intervene in an escalating row between them and the HSE over the way fees are agreed.
Both the Irish Dental Association and the Irish Pharmaceutical Union (IPU) are challenging the HSE's insistence that it can no longer negotiate fees with either body because such discussions could breach the Competition Act.
The HSE is seeking the Attorney General's advice on negotiations with the dental association.
A guidance note from the Competition Authority issued last week indicates that any collective negotiations leading to the setting of medical fees is in breach of Section 4 of the Competition Act 2002.
This followed a case, which was settled, between the Competition Authority and the Irish Hospital Consultants Association (IHCA) which means that the IHCA can no longer negotiate fees on behalf of its members with private health insurers.
Since the agreement, private insurers issue a schedule of fees each year and it is then up to individual consultants to accept or reject these.
The issues that have now arisen with pharmacists and dentists is the first indication that competition legislation will also affect State contracts with certain professionals, including GP contracts to treat medical card patients.
It is pointed out that dentists' contracts differ from those of GPs in that they are paid on a "fee-per-item" basis and that there is an element of "employee-employer" relationship between GPs and the HSE.
However, given that GPs are self-employed and that the Irish Medical Organisation has in the past negotiated fees on their behalf with the State, it seems likely that the Competition Act will have to be taken into account in any future talks between the HSE and GPs.
A HSE spokesman could not comment on this issue.
An IMO spokesman could not comment because the IMO is currently being investigated by the Competition Authority on a separate issue to do with fees charged by GPs to private health insurers.
The Competition Authority's guidance note says "doctors must individually decide the fees they charge for their services".
"A decision/recommendation by a medical representative or professional body, the object or effect of which is to co-ordinate or facilitate the co-ordination of fees or other commercial terms amongst its member doctors, is in breach of the Competition Act," it states.
Under the legislation, an agreement on prices could be allowed only if it could be shown that it was for the consumers' good. However, one legal source says: "It has never been found that the fixing of prices is in the interests of the consumer."
A Competition Authority spokesman says the only way the law can be tested is through the courts and this route will be open to dentists or pharmacists if they do not believe the legislation covers their contracts with the HSE.
In a statement, the HSE says it "refutes any implication that it is refusing to meet the Irish Dental Association" and says it is "seeking clarification from the Attorney General via the Department of Health on whether it is permissible to enter into discussions regarding fee setting".
However, in relation to negotiations with pharmacists, a HSE spokesman says it has received legal advice, which has "been seen by the Attorney General" that it can no longer discuss fees with the IPU.
Both the dental association and the IPU say they have received legal advice suggesting the Competition Act does not apply to their agreements with the State to provide services to medical card holders.
In the case of dentists, it also concerns services to people receiving treatment under the PRSI scheme.
Both organisations are now suggesting they will not discuss other aspects of how they provide these services if they cannot negotiate fees for their members.
The HSE says the dental association is aware that it is available to meet "to progress discussions on many other important aspects of the review" of the dental treatment services scheme.
Bernard Murphy, secretary of the Irish Dental Association, says "the fee and the terms are the two sides of the same coin" and he questions the HSE's motives in raising the issue of competition legislation when the review was nearing conclusion.
"Our concern is what is the bona fides of this action by the HSE. Is it a genuine concern or is it an attempt to defer negotiations to a more convenient time until after the election," he asks.
He says the Competition Authority pursued the Irish Dental Association some years ago over advice it was giving to its members on fees charged to private insurance companies but the authority never raised the issue of negotiations it carried out with the public health service.
"They [the Competition Authority] investigated us then, they had all our computers and they were fully aware of how we negotiated with the State but they never suggested it was illegal so we are questioning why the HSE is doing this now," he says.
In late December the HSE wrote to the IPU saying it could no longer negotiate fees as it would be in breach of Section 4 of the Competition Act, and said it was "still considering its options for progressing the issues arising from this advice" and would contact pharmacy contractors as soon as these were determined.
The head of the HSE's corporate pharmaceutical unit, Prof Kamal Sabra, later told The Irish Timesit would conduct a public consultation programme with pharmacists who could make individual submissions.
It would then make offers of payment to pharmacists which they could then accept or reject as individuals.
At an emergency meeting of the IPU in Tullamore on Sunday, pharmacists warned they may withdraw from providing services to medical card holders.