New Zealand’s Commerce Commission has issued a compliance advice letter to RANZCO, following an investigation into concerns the college sought to restrict optometrists from receiving the training required to perform laser procedures under expanded scope powers.
The commission closed its investigation after the college clarified its position in a follow up letter to Kiwi ophthalmologists, stating it hadn’t intended to suggest that ophthalmologists should refuse to participate in professional training for optometrists, “or that there was a potential risk of disciplinary action for [those] who did”.
Intervention from the competition watchdog stems from an April 2023 letter RANZCO wrote to its fellows, which the commission said counselled ophthalmologists against facilitating optometrists to perform two types of laser eye surgery, despite a legal change in optometrists’ scope-of-practice in 2022.
The controversial change – enacted by the Optometrists and Dispensing Opticians Board and opposed by RANZCO – enables optometrists to perform YAG laser capsulotomies and YAG laser peripheral iridotomies, provided they have been trained by an ophthalmologist.
In December 2022, the NZ Parliament Regulations Review Committee rejected a complaint from RANZCO about the legality of the move.
Following this, RANZCO reportedly issued the letter in question to its members in which it said:
“RANZCO therefore counsels against facilitating non-ophthalmic, non-medical practitioners, including optometrists, performing ophthalmic surgical laser procedures on any patient.
“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.
“In the event of an adverse outcome, it should be noted that RANZCO may not be in a position to defend a process where it believes the patient’s right to this standard of care has been compromised.”
Actions ‘potentially problematic’
This triggered the New Zealand Association of Optometrists (NZAO) to complain to the Commerce Commission that the RANZCO letter “obstructed [optometrists] from working legally within [the] new scope-of-practice that allows certain types of laser eye surgery”.
The commission investigated and said it was concerned the 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.
“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,” said Ms Vanessa Horne, the Commerce Commission’s general manager of competition, fair trading and credit.
She 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”.
“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,” she said.
“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, the agency said RANZCO sent a clarifying letter to its members stating it hadn’t intended to suggest that ophthalmologists should refuse to participate in program to provide professional training for optometrists.
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,” she said.
“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.”
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