ComCom Sees Off Potentially Problematic Arrangement Between Ophthalmologists

The Commerce Commission today issued a compliance advice letter to the Royal Australian and New Zealand College of Ophthalmologists (RANZCO), following an investigation into concerns the professional body had sought to restrict optometrists from receiving the training required to perform certain surgical procedures.

The investigation focussed on a letter issued by RANZCO to its member ophthalmologists counselling them against facilitating optometrists to perform two types of laser eye surgery, despite a legal change in optometrists’ scope of practice in 2022. The change in the scope of practice enables optometrists to perform specific surgical ophthalmic procedures, provided they have been trained to perform these procedures by an ophthalmologist.

Vanessa Horne, General Manager Competition, Fair Trading and Credit, said that while the Commission hadn’t reached a final view on whether the conduct amounted to a breach of the Commerce Act, RANZCO’s actions were potentially problematic.

“In this case, we were concerned that RANZCO’s letter discouraged its members from training optometrists to perform these surgical procedures, with the potential to substantially lessen competition. It also had the potential to negatively impact patients waiting for these surgeries and cause Te Whatu Ora and private insurers to pay more for them.”

“Trade associations, professional bodies and their members should be aware they could be held liable under the Commerce Act for any anti-competitive recommendations made by the trade association or professional body. Under the Act, recommendations are deemed to be an arrangement between a professional body and its members, unless members expressly disassociate from them or can show that they were not aware of them. Recommendations could raise competition concerns if they affect areas where members of an association compete - either against one another or with other suppliers.”

As a result of initial concerns raised by the Commission, RANZCO sent a clarifying letter to its members stating it hadn’t intended to suggest that ophthalmologists should refuse to participate in programmes to provide professional training for optometrists, or that there was a potential risk of disciplinary action for member ophthalmologists who did.

Ms Horne said the clarified position brought the Commission’s investigation to a close. “We’re pleased to see RANZCO clarify its position, ensuring Kiwi patients don’t miss out on the benefits of competition. As this case demonstrates, it’s important for trade bodies, professional associations and membership organisations to ensure they familiarise themselves with the Commerce Act to avoid falling foul of the law.”

The letter is available on the Commission’s case register.

Background

Arrangements that substantially lessen competition are illegal under section 27 of the Commerce Act. These agreements could be in the form of a written contract or an informal understanding. Under section 2(8) of the Commerce Act, any recommendation made by an association to its members is deemed to be an arrangement made between those members, and between the association and its members. The Commission website includes more information about anti-competitive agreements here.

The Optometrists and Dispensing Opticians Board expanded the scope of practice for optometrists in 2022 to free up ophthalmologists to perform more complicated procedures.

The change enabled qualifying optometrists to perform two types of surgery after receiving ophthalmologist-led training. These surgeries are YAG laser capsulotomies (typically performed on patients who have had cataract surgery but whose eye(s) have subsequently formed a cloudy membrane behind the artificial lens inserted during the initial cataract operation) and YAG laser peripheral iridotomies (performed on patients who require a small hole to be lasered into their iris(es) to allow for proper drainage).

In December 2022, the NZ Parliament Regulations Review Committee rejected a complaint

from RANZCO about the legality of the expanded scope of practice. Following this, RANZCO issued the letter to its members in which it, “counsels against facilitating non-ophthalmic, non-medical practitioners, including optometrists, performing ophthalmic surgical laser procedures on any patient.” RANZCO told members in the letter, “to do so would be counter to RANZCO’s stated position as it is against the patient’s interest and so undermines the standard of care which all Fellows are expected to practice.”

The Commission was concerned that this letter could be construed as a recommendation from RANZCO to its members and constitute an arrangement between them with the purpose, or having the effect or likely effect, of substantially lessening competition in a market.

© Scoop Media