MSG v GCRA: Judge rules GCRA reached “unreasonable” decision

Monday 13 March 2023

The Medical Specialist Group (MSG) has successfully appealed against a £1.5million fine levied against it by the Guernsey Competition and Regulatory Authority.

It has also successfully appealed the original decision the GCRA made that led to the fine. However, the matter has also been remitted to allow the GCRA to potentially launch a fresh Statement of Objections “if it is minded to do so”.

The year-long appeal came to its latest conclusion last Friday (10 March) after the Bailiff Richard McMahon said: “I am satisfied that the MSG has established that the GCRA has reached a decision that is unreasonable and/or based on material errors to the facts.”

The GCRA has been directed to pay the MSG’s legal costs.

The legal battle began in December 2021 when the GCRA fined the MSG £1.5million after deciding it had broken competition law. The fine was more than 10% of the Group’s annual turnover.

The GCRA imposed the fine because it said the MSG had acted in an anti-competitive way after banning an ex-consultant from practising in the island for five years after leaving the Group.

The MSG quickly appealed the decision and has consistently maintained that the GCRA’s fine was imposed under flawed reasoning. The appeal process began in March last year and culminated in a judgment passed by the Royal Court on Friday.

“This has been a very long and painful process,” said the Chief Executive of the MSG, Jon Buckland, who has welcomed the decision by the Royal Court.

“Throughout, our motivation has been to protect the emergency and elective healthcare that we provide to the people of Guernsey under our contract with the States."

Pictured: Chief Executive of the MSG, Jon Buckland.

Mr Buckland continued: “For more than four years now we have had to expend considerable amounts of time, effort and resources, alongside considerable legal fees, to defend ourselves against the GCRA's actions. Throughout, we have cooperated fully with the GCRA, meeting with them and answering their multiple requests for information and materials, including at times when we were under severe pressure due to the Covid pandemic. 

“From the outset, we explained why we had restrictions in our contracts and why these were appropriate. We provided evidence to show the difficulties we have in recruiting into Guernsey, and how long the process can take, particularly given the extreme shortage of doctors in the UK and globally. Our contractual provisions ensure that we can attract high calibre consultants across a wide range of specialisms to come and work in Guernsey and provide expert medical care in our community.

“We are delighted that the Royal Court has upheld our challenges and overturned the GCRA's findings against us and the substantial fine that the GCRA had sought to impose. This is a comprehensive, robust judgment which carefully sets out the errors in the GCRA's processes and reasoning. We now look forward to focusing on our primary purpose, which is to provide outstanding patient-centred services and improve the health of the community that we serve.”

This may not be the end of the story, however. Judge McMahon said questions still remain regarding the length of the MSG’s non-compete clauses and the GCRA should be given space to investigate further if it wishes to.

In a statement, the GCRA said:

“The Authority is considering the judgment and taking advice on the merits of its reasoning given there are important principles involved.

“Until this review is complete the Authority is not in a position to comment further at this time.”

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