Information about fees
Published 3 December 2015
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Your competitors
Your competitors are typically other private medical practitioners and private clinics who offer services that patients and commissioners of care would consider substitutes to the services you offer (eg for the same procedure and in the same geographic market). The exception is where you and your competitors join a business (eg a group) and exclusively work through that business. Subject to certain conditions, and provided you cease your activities as a sole trader, this would mean you are no longer viewed as each other’s competitors but as a single economic unit (known in competition law as a ‘single undertaking’).
If you are in such a group, then your competitors are those medical practitioners, competing groups and private clinics who offer services that are substitutes for the services your group offers.
Agreeing fees in a group
Assuming that your group is a single economic unit and therefore one undertaking then an agreement about fees is not considered an agreement between competitors. It is an internal management decision and therefore not illegal. Groups and their members may wish to take advice from specialist competition lawyers on whether the group constitutes a single economic unit and therefore one undertaking.
Agreeing fees in a group when also working outside the group
However, if you also work outside the group as a sole trader, then you do not form a single undertaking with the group. This means that you may be directly competing with the group (see ‘Your competitors’ above) and/or its members (if they also work outside the group as sole traders). If you work both within and outside a group, then consider setting up internal rules on who is allowed to receive the group’s pricing information which relates to offering similar services to the same set of customers in the same geographic market. For example, you could change the type of membership to limit the exchange of competitively sensitive information and the coordination of commercial response by competitors. Whatever structure is chosen, to be compliant it will need to prevent the exchange of commercially sensitive information between competitors.
Setting fee levels
Competition law does not prevent you from adapting yourself intelligently to the existing or anticipated conduct of your competitors, which may include charging the same fees as other professionals in your field. The law does, however, strictly prohibit any direct or indirect contact by which a private medical practitioner may influence the commercial conduct of his/her competitors, such as what prices they will charge.
Discussing fees
Discussing prices or fees or exchanging future pricing intentions with your competitors is illegal as it is likely to interfere with how prices are set (see above). Discussing current prices may also restrict competition between competing practitioners.