Legal challenge over Bupa tender process

The CSP and Physio First, the Society's occupational group for private practitioners, have instructed solicitors to submit a formal complaint to the Office of Fair Trading over Bupa's new 'blind tender' process for private practitioner physios.

The move follows strenuous efforts by the Society and Physio First, through both meetings and detailed correspondence, to dissuade the UK's largest private medical insurer from pressing ahead with its plans.

The two organisations are now seeking a further meeting with Bupa. However, the scope for influencing this tender process is limited by the 1998 UK Competition Act. Any efforts to co-ordinate a collective 'boycott' of the tender process might result in legal action under the Act, as would any attempt to recommend the level of fees that practitioners should charge.

Bupa is effectively asking 6,000 private physios to compete against each other in order to be allowed to continue treating the insurer's patients. Practitioners must complete an online questionnaire by midnight on Friday 24 April. As well as questions about facilities such as parking, the form requires physios to quote the lowest price they are prepared to work for.

Bupa gives what it calls 'benchmark prices' but, as the tender process is based on price, the insurer advises practitioners to quote below them.

Bupa's benchmark prices are:

central London: initial assessment £55; follow-up treatments £45
outer London: assessment £45; follow-up treatments £35
rest of the country: assessment £40; follow-up treatments £30

The move is seen as a cost-cutting measure as Bupa said in a press release its aim was to address 'variations in price and frequency of physiotherapy sessions'.

CSP chief executive Phil Gray said the insurer's quoting of price variations among physiotherapists was 'unfair and inappropriate' if they were not also quoting the differences in the clinical condition of the patients concerned or the specialist expertise of the practitioner. 'Bupa's apparent desire to have a uniform, fixed price for private physiotherapy does not fit with the expectation of choice of those taking out private medical insurance, or of the operation of a competitive market,' he said.

In a joint statement, chairman of Physio First Eric Lewis and CSP chair of Council Liz Cavan, said: 'We fully understand the anguish and frustration that this Bupa initiative is causing to private practitioners. Both organisations intend to hold this process up to public and government scrutiny.'

As with any legal remedy, the timescale and the outcome were a matter for the OFT. The process could take some time and it would be irresponsible to pretend there was a 'silver bullet', but the two organisations were 'determined to take action to the extent that the law permits to take Bupa to task'.

Mr Lewis said the unequal bargaining position - between single-handed and very small practices and a multimillion pound organisation - was 'like having a gun put to our heads'.

'Whilst Physio First and the CSP recognise that it's entirely appropriate for Bupa to regularly review the services provided to their policyholders, we are concerned that patients may lose out if price is the primary consideration in this tender process, rather than the quality of healthcare provided, or the particular needs of individual patients,' Mr Lewis added.