Specialist costs may rise if MSG loses court appeal

The Medical Specialist Group is facing a £1.5m. fine from the Guernsey Competition and Regulatory Authority on the grounds of anti-competitive behaviour and it has been directed to drop its non-compete clauses.

It is now appealing to the Royal Court for this ruling to be set aside on the basis that the GCRA decision was unreasonable and disproportionate, failed to take into account relevant considerations, was based on errors of law and material fact, and was flawed ‘by reason of procedural irregularity’.

It goes on to state that the evidence put forward by the authority to support its decision served only to illustrate the GCRA’s ‘inexpert and inexperienced judgement’ of what it took to recruit doctors, and of the MSG’s own experience.

Currently, a consultant who leaves the MSG is prevented from setting up in private practice for two years, while for an associate it is 18 months.

In papers filed with the court, the group said it was concerned about departing consultants building on contact with private patients and making use of their reputation to attract private patients away from the MSG.

It had pointed this out to the GCRA, but said the response was that if the MSG had to increase its salaries as a result of the removal of the non-compete clauses, the group could invoke a section of its contract with the States ‘in order to obtain further funding from the Guernsey taxpayer’. Its current contract with the States sees the MSG earn some £17m. from public funds.

But, said the MSG, the GCRA did not address the ‘very real possibility’ that without the non-compete provisions there would be a delay to recruitment and so money would need to be found to pay for ‘far more expensive’ locums. It also said the non-compete clauses were necessary to secure public policy objectives, including 24/7 emergency cover, but the GCRA has argued both points were ‘irrelevant’.

‘With respect, both those points on which the GCRA relies are misconceived and they suggest a serious failure by the GCRA to understand both the relevant law and its role and responsibilities as a competition authority,’ said the MSG.

It has accused the GCRA of not having sufficient grounds to reject the MSG’s evidence.

‘On the contrary, when analysed, that evidence and reasoning amounts to little more than the GCRA’s substitution of its own inexpert and inexperienced judgement as to what is needed to recruit doctors to MSG for the expertise and experience of the MSG itself.’

The MSG’s appeal against verdict and fine is scheduled to go to the Royal Court at the end of March for a hearing.