Dr Kerryn Phelps, AMA President, with Peter Jinks, ABC Radio Broken Hill

Dr Kerryn Phelps is President of the AMA and she joins us this morning. Good morning.

PHELPS: Oh, good morning, Peter.

JINKS: What special treatment are we talking about?

PHELPS: Well, it's interesting to hear Professor Fels' comments about the AMA because I think the ACCC are so accustomed to having the powers of being judge, jury and executioner that they're actually pre-empting the discussions that are currently underway in the inquiry into the Trade Practices Act and the ACCC.

But that being said, there are impediments in the current Trade Practices Act, which makes it more difficult for rural doctors that practice within the law. And it's no good for the ACCC's Chairman to be saying, 'Look, you know, it's okay we're not going to prosecute yet'. Because doctors will be very reluctant to practice in a way that is in any contravention to the law and it's the law that needs to be reviewed.

JINKS: Can you give us an example of some of these practices?

PHELPS: Certainly. We have a group of obstetricians, for example, in Queensland at the moment in a rural town and they had one of the doctors who was involved in a known gap scheme with a health fund and two who weren't. These three had a roster going and it meant that they could have a life, that they could have the occasional weekend off. But in order to do that they needed to discuss with each other, and with their patients, what they were going to charge.

Now, it became a bit of a mess because, if one doctor delivered the patient one weekend, they were being charged differently to what they were being charged if a different doctor delivered them. So the doctors, for the sake of sorting out their roster, discussed what they were going to be charging their patients. Even just that - that act of discussing their fees - put them potentially in breach of the act. Ultimately their roster broke down, one of the doctors has stopped practicing obstetrics and the other two are not involved in any kind of cooperative arrangement with each other because the ACCC marched in and threatened them with enormous fines.

I mean, the fines that have been set up by the ACCC, and under the Act, are $500,000 for individuals. Now, these are fines that are meant to control the activities of large corporations, not one or two country doctors in a town trying to set up a roster.

The other things that doctors are prohibited from doing is discussing any arrangement that has some sort of commercial bottom line. For example, a group of anaesthetists in an area in Sydney were trying to discuss a roster for obstetric services after hours, so that they could provide 24-hour cover. Between them they tried to work out what was a moderate but reasonable fee for being on call after hours and being expected to be called out at any time of the day or night. That fell foul of the ACCC and so that roster wasn't allowed to happen. So we've got to look at the outcomes for the ACCC'S activities and, so far, I can't see a lot of public benefit for them.

JINKS: Now the AMA has, in fact, described the ACCC's approach to the shortage of rural doctors as draconian. Do you want to elaborate on that?

PHELPS: Yes certainly. The sorts of things that the ACCC does is that they get a report that a potential breach of the act has occurred. They send the doctors letters which indicate that they have reason to believe that they have breached the Act and then they tell them that they're under threat of, fines of half a million dollars as individuals, millions of dollars if they're corporations. Now that'd be enough to send a chill up the spine of any country doctor. They're then told, in the same letter, that if they talk to anybody about it that they will not be shown any leniency. But they will be shown leniency if they shut-up, don't talk to anybody about it except their legal representative and if they dob in other doctors they think might be involved in the same sort of activity.

Now, if that's not draconian I don't know what is. So you're finding that these doctors are terrified of talking to their colleagues about what's happening to them. They're terrified of talking to their representative organisations who can give them some advice and they have to engage the advice of a very expensive lawyer who specialises in the Trade Practices Act in one of the big cities which, in itself, is a stressful and expensive exercise. Now if that's not a disincentive to practice in a rural area I don't know what is.

JINKS: So you're suggesting, really, the ACCC's leaning on some doctors.

PHELPS: They are. I mean I've seen the correspondence between the ACCC and these country doctors and, frankly, if you got a letter like that, you'd be absolutely terrified.

JINKS: Okay, well you've approached the ACCC about this. What sort of a response are you getting from them?

PHELPS: Oh the same sort of approach as we're - they only respond in their media releases - and it's oh the AMA's sending out misleading information and, you know, trust us we're the ACCC we can, you know, doctors can do rosters which help them get a break for their holidays. But that completely and, I think, deliberately misses the point.

The AMA has never sought a blanket exemption for doctors from the Trade Practices Act. What we're doing is cooperating with the inquiry, the inquiry has been engaged to look at how the Trade Practices Act is impacting on rural doctors. We have made submissions to that inquiry, as have many rural doctors, and where there are problems that have been created by the Trade Practices Act - and I think they are inadvertent consequences of the Act - then there will be recommendations made where the legislation needs to be changed.

The ACCC has railed against this inquiry from the outset - they obviously don't want any watering down of their powers - and they have railed against the AMA's submissions. They've also said, in their latest press release, that the AMA is sending out misleading information - incorrect information - to the medical community about the Act.

Now all of the information that the AMA has sent to the inquiry and to the media has been based on very high level and very expert legal advice, from our legal advisers who specialise in the Trade Practices Act. And the reason this came to our attention in the first place was because our legal advisers said, listen, you know, we're trying to come up with an education program for doctors but it just doesn't make common sense, the way the Act is currently standing.

JINKS: Very briefly, Dr Phelps, what do you think this stand by the ACCC, what effect is it having on the numbers of rural doctors do you think?

PHELPS: I think the equation is complex when it comes to the numbers of rural doctors. We have government policy, which has restricted the number of Australian graduates who are able to train in general practice. We have difficulties right across the rural sector which affects professions other than the medical profession. Out west we're seeing issues like infrastructure in rural areas, educational opportunities, lifestyle, the issues for employment opportunities for spouses …

JINKS: I understand that, we're running out of time. But this wouldn't be helping, I would assume?

PHELPS: There's no question that the way the Trade Practices Act is currently operating that it is an impediment to rural doctors working and being recruited to country areas. And what …

JINKS: Okay Dr Phelps, we'll have to leave it there. I thank you for your time this morning.

PHELPS: Thank you.

Ends