UK: Competition Law Compliance: The CMA's Open Letter To Private Medical Practitioners

Summary and implications

The UK Competition and Markets Authority (CMA) recently published an open letter to private medical practitioners which stresses the importance to them of not engaging in illegal anti-competitive practices. The letter makes clear that:

  • individual medical practitioners who charge for private patient work are sole traders and therefore subject to competition law;
  • if practitioners provide similar services in the same geographic area they are each other's competitors and should not co-ordinate their prices;
  • if practitioners undertake some work within a partnership, but also some outside it as a sole practitioner, they could breach competition law by co-ordinating their commercial conduct; and
  • membership associations, such as for particular branches of the medical profession, must not facilitate the co-ordination of their members' commercial conduct, or the inappropriate exchange of commercially sensitive information. 

The trigger for the letter was a CMA decision (the Decision) in August 2015 to impose a fine of £382,500 on the Consultant Eye Surgeons Partnership Limited (CESP), a membership association of around 200 consultant ophthalmologists. The CMA found that CESP had breached competition law by co-ordinating the prices that CESP's members charged for private patient work.  

The Decision forms part of a recent focus by the CMA on the healthcare sector. A market investigation into private hospitals, as well as several separate investigations into pharmaceuticals, is ongoing. 

CMA's concerns over CESP's activities

CESP is a membership organisation which represents both sole practitioners and individual partnerships of private ophthalmology practitioners. However, because its members trade as multiple separate LLPs, they are each other's competitors. 

This means that they are prohibited from co-ordinating key commercial activities such as the prices charged by individual ophthalmologists.

In its Decision, the CMA found that the conduct of CESP and its members had breached competition law because of the following alleged practices:

  • CESP co-ordinated the conduct of partnerships of ophthalmologists (LLPs) who comprised its membership by negotiating with private medical insurers (PMIs) on their behalf to agree common rates for so-called inclusive private patient package prices (IPPP Prices).
  • CESP co-ordinated the conduct of LLPs in response to an initiative by a specific PMI to reduce the price of ophthalmic procedures. CESP recommended that all members de-list their services from the PMI and refuse to be fee-assured consultants. CESP recommended that its LLP members invoice the particular PMI's patients directly at the more expensive self-pay patient price.
  • Competition law concerns were compounded in cases where certain consultants treated patients on a sole-trader basis outside the scope of their LLP. The consultants were able to discover the IPPP Prices negotiated by CESP via their LLPs. They then used it as a minimum floor price, even when pricing work and treating patients as sole practitioners, rather than in their LLP.
  • Finally, the CMA found that CESP had formed a conduit through which its member LLPs could exchange commercially sensitive information such as their views on pricing (including future intentions) and information on their market conduct. This allowed the LLPs to predict, with a reasonable degree of certainty, each other's future plans.

The CMA found that the overall intention of this co-ordinated conduct was to increase revenue for the CESP LLPs and their consultant members. It also aimed to thwart downward pressure on prices that PMI providers sought to exert.

Consequences for CESP

The CMA found that CESP had breached the Chapter I prohibition of the UK Competition Act 1998 as well as Article 101(1) of the Treaty on the Functioning of the European Union, both of which prohibit anti-competitive agreements. This could in principle have led to fines of up to 10 per cent of CESP's total turnover. Patients and PMIs who were overcharged may also have brought claims for damages.

In this case, the CMA opted to fine CESP £382,000, rather than individual practitioners and ophthalmology practices. The members of CESP instead received a warning letter that made very clear the CMA's concerns regarding their practices and its expectation of their future commitment to ongoing competition law compliance.

Open letter

In December 2015, some months after its Decision, the CMA issued an open letter targeted at the entire private medical practitioner community more generally, to try to draw their attention to key lessons from the case. Key topics covered by the CMA's open letter are as follows:  

  1. Medical practitioners acting as sole traders are subject to competition law
    A medical practitioner who offers his or her services to private patients outside of the employment of an organisation is a sole trader subject to competition law. The CMA expects them to take commercial decisions independently from each other. They should compete locally or regionally to attract patients.
  2. Medical practitioners continuing to work as sole traders outside a group they work in may raise competition law compliance concerns
    If medical practitioners work and trade as a group (such as an LLP), it is permissible for the practice to co-ordinate their prices to have a single combined market presence. However, if members of the practice spend part of their time consulting with patients outside of the LLP as sole practitioners, they need to set their prices independently. There should be no co-ordination of commercial strategy between the LLP and the sole practitioner (such as an agreement not to compete for certain patients). For practitioners who do some work both inside and outside a group, special arrangements may be needed (e.g. different email distribution groups for different classes of information) to ensure no inappropriate commercial information is exchanged.
  3. Membership associations should not co-ordinate member undertakings' commercial conduct or facilitate the sharing of commercial information
    Members of professional organisations can often be each other's competitors, especially if located in the same geographic area. Associations should avoid making recommendations or taking decisions which interfere with their members' commercial conduct, including how they set fees or prices, and avoid facilitating the exchange of commercially sensitive information.
  4. Collaboration between medical practitioners involving a restriction of competition may be permissible if the reduction of competition is outweighed by benefits to patients
    Any co-operation between medical practitioners that comprises a restriction of competition may still be exempt from the application of competition law in very limited circumstances where a countervailing consumer benefit can be shown that arises from the restriction. This is only demonstrated where:
  • collaboration improves production/distribution or promotes technical/economic progress;
  • consumers receive a fair share of the benefit;
  • there are no restrictions on the collaborators not indispensable to achieving the objectives of the collaboration; and
  • the collaboration cannot eliminate substantial competition. 


Given that the CMA opted to fine only CESP, it is not surprising that each of its members received a warning letter from the CMA. It is, however, relatively unusual for the CMA to also issue an open letter to an entire industry (in this case all private medical practitioners) to explain in detail what practitioners are required to do to comply with competition laws. 

The CMA may have been concerned that the behaviour it found when it investigated CESP is the "tip of the iceberg" and that there are potentially other segments of the medical profession also operating in breach of competition law. Given the potentially severe consequences of an investigation and fine, practitioners should take the opportunity now to review their practices and ensure that they are compliant. This is especially important because if, following any future investigation, the CMA finds that a recipient of an open letter has ignored the CMA's advice and nevertheless infringed competition law, higher financial penalties may be levied. 

The Decision and the CMA's open letter also applies more generally to any profession where members form themselves into a variety of groupings. This includes private practitioners, partnerships, LLPs and companies who interact with one another via a professional association or trade association.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.