Avoiding liability under the Commerce Act--what can be learned from the Ophthalmologists' case?
OBJECTIVE
To consider the application of the Commerce Act 1986 to the conduct of medical practitioners and practitioner associations and societies, with special reference to the recent Ophthalmologists' case and the lessons which can be learned from that.


CONCLUSIONS
The Commerce Commission recently took successful action (under Section 27 [s27] of the Commerce Act) against the Ophthalmological Society of New Zealand and several ophthalmologists from the lower South Island. The case illustrates the ease with which practitioners can be drawn into anticompetitive arrangements, and practitioner associations and societies can become liable under the Act through the conduct of their officeholders. The article discusses the relevant prohibitions under the Act, and the way in which these can relate to individual practitioners and practitioner associations and societies. In particular, s27 applies not only when the purpose of an arrangement substantially lessens competition, but also when the effect or likely effect of the arrangement substantially lessens competition. Therefore arguing that conduct is for ethical or safety reasons will not be sufficient to avoid liability.


CONCLUSIONS
Markets for medical services are treated just like the markets for most other services under the Commerce Act. Individual practitioners should avoid becoming involved in or giving support to conduct or arrangements, which may be anticompetitive. Practitioner associations and societies should exercise control over the actions of their officeholders, especially where the purpose or effect of these could be considered to be anticompetitive.
van Roy
Yvonne
Y
School of Accounting and Commercial Law, Victoria University of Wellington, New Zealand. Yvonne.vanRoy@vuw.ac.nz
D003132:Commerce / Q000331:legislation & jurisprudence*; D032982:Contracts / Q000331:legislation & jurisprudence; D004465:Economic Competition / Q000331:legislation & jurisprudence; D016365:Liability, Legal; D009520:New Zealand; D009885:Ophthalmology / Q000331:legislation & jurisprudence*; D011364:Professional Practice / Q000331:legislation & jurisprudence*; D012955:Societies, Medical / Q000331:legislation & jurisprudence*