There are high stakes involved for all sides in the row between the Government and general practitioners on the Government’s plans for introducing free GP care for children under the age of six.

The Irish Medical Organisation (IMO) and other groups representing GPs are deeply unhappy both at the content of the draft contract drawn up by the Government for the proposed new service and at the insistence of the Department of Health that it will enter only into consultations and not negotiations on the issues.

Last week the IMO warned that it would consider seeking an injunction to prevent the Government introducing changes to the contracts of its members without agreement.

For the Government, the introduction of universal free GP care is one of the key commitments to be introduced during its current term.

The implementation of this initiative has already been delayed by the abandonment of the original intention to start the process by providing free GP care to those covered by the long-term illness scheme.

The Government then opted to introduce free GP care on an age basis, commencing with children under the age of six this year. However, if this move is stymied or delayed significantly , it would have serious implications for the intention to have free GP care for all in place by 2016, an ambition the Minister for Health, Dr James Reilly, has said is still achievable.

Failure to deliver on free GP care, or at least to make a significant start on the road to universal coverage, would also raise serious credibility issues for the Government in relation to its overall aim of introducing a system of universal health insurance at some stage in a second term of this administration.

For the IMO, the current situation is equally serious. The Government has argued that it cannot, under competition law, negotiate with the IMO over fees.

It has offered consultation on the elements of any new contract covering medical care for children under six, as well as an input into any fee structure.

At the end of the day, all the aspects of the draft contract may not make it into a final document. The Department of Health and the HSE could be seeking to throw the kitchen sink and all into the draft in the knowledge that this could ultimately be pared back to what they really want.

Certainly the Government would like to move primary care in a direction of health promotion, etc rather than just dealing with illnesses that present.

However, there are other aspects of the draft proposals – such as the gagging clause to prevent criticism of the HSE – which it is difficult to believe could present a fundamental bottom line for management.

Template for contracts
The IMO suspects that whatever emerges in the final contract for services for children under six, is likely to be the foundation of subsequent contracts with doctors as free GP care is rolled out to other age cohorts.

Different governments over recent years have all spoken about changing the current GMS contract with GPs, without much ever happening.

The draft proposals for care for children under six could prove to be the new overall contract in embryo.

If the IMO is unable to negotiate on the terms of any such deal under competition law and is merely consulted on the nature of the elements in it, questions would likely arise about its relevance as a trade union with subscriptions of up to €1,200 per year.

The IMO has been particularly concerned at the decision of the Government to press ahead with its plans for free GP care for young children in advance of a forthcoming court case involving it and the Competition Authority which it hopes will bring clarity to the issue of its role in representing GPs providing services to the State.

GPs, unlike consultants, non-consultant hospital doctors or public health doctors, are not employees of the HSE. They are independent contractors who provide a service to the HSE.

The position of the Government, and its predecessor, has been that under competition law, GPs should compete with each other and that it could not negotiate on fees centrally with their representative body.

The previous government did agree under the original Croke Park agreement to amend completion law but this was never implemented. There was no similar commitment set out explicitly in the subseqent Haddington Road agreement.

The court case, which is due to commence at the end of April, stems from a row between the Competition Authority and the IMO over the reaction of the medical organisation to new fee cuts put in place by the Government last July.

Terms of current contract
In its statement of claim to the court, the Competition Authority maintained that after considering the Government's cuts, the IMO's GP Committee decided that its members should withdraw from any work in the public health system that it maintained was not covered under the terms of the current contract such as involvement with primary care teams, community intervention teams and the HSE's clinical care programmes.

The Competition Authority argued that the IMO was "an association of undertakings" and that its decision had as its object and/or effect the prevention, restriction or distortion of competition in the State.

It maintained that the collective withdrawal of certain medical services “is directly or indirectly aimed at fixing the prices at which GPs sell and/or the State purchases the proposed withdrawn medical services, by requiring that the IMO’s GP members refrain from providing such services at no extra cost”.

The IMO, in its defence in the action, denied that its GP members were “undertakings” within the meaning of competition law and that its decision to withdraw from services outside of the contract had as its object or effect the prevention, restriction or distortion of competition.

High Court declaration
Importantly, the IMO has also lodged a counter-claim in the legal action in which it is seeking a High Court declaration. It is contending that as a registered trade union, it is lawfully entitled to negotiate in relation to the terms of the GMS contract and other publicly funded contracts including terms relating to price as well as in relation to amendments to the contract and both services which are subject to the contract and those which are not subject to it.

It is also seeking a declaration that it is entitled to make recommendations to members and to put agreed proposals to a ballot.

In essence, the IMO is seeking a court ruling that would allow it to represent GPs in the same manner as it would other groups of doctors who are employees of the State.

The outcome of the forthcoming court case could have serious implications, not only for the proposal for free GP care for children under six, but also for the dealings between the Government and family doctors on many other issues in the years ahead.