Contacting patients of current employer when setting up new clinic

There are podiatry employers in Melbourne, that are paying qualified podiatry staff $22 Australian per hour. That equates to 11 Euro or 15 US dollars for memory per hour. No bonuses for orthotic sales etc.


When you consider that retail stores pay unqualified workers $20 odd an hour, this is an absolute rip-off.


Now if this employee went away and contacted some old patients, the employer would probably shout "unethical" and run to the board and the association. Common-sense would say that the remuneration was unethical in the first place.




Ron
Physiotherapist (Masters) & Podiatrist

 

Well said Ron, and totally agree!

Sally

 

Hi Ron et al,

While I agree that the situation you outline is unfair I would still regard the actions of the employee as dishonest & unacceptable.

If the employee was unhappy with their pay why work for such a poor employer in the first place?

Surely the actions we are discussing are tantamount to theft?

If an individual entered a retail premises but considered the products overpriced would the courts view theft as the individuals right in resetting the price to free?

I imagine not.

While I disagree with many of the HPCs frivolous actions against professionals, I do consider identifying someone as a thief (ie. intentionally misleading/acquiring patients from their employer for personal, financial gain) as appropriate if the circumstances dictate.

In my opinion these are not the acceptable actions of a professional.

Only my thoughts.

Mandy.

 

I still struggle to see how acting dishonestly and unethically in a business matter affects someone's fitness to practise, but I guess these people get there just deserves for what they did.

This speaks to the person's character. Typically, people have been "struck off registers" for matters of character. I am not making a judgement I am just making the point. Additionally, the contacting of patients in this manner may constitute a breach of employment contract, also may be a common law breach of duty (can be construed as such in some circumstances).
In relation to the above decision, the heart of the matter lies with the real possibility and as was found the reality that ... existing patients of Don Gatherer are given the false impression that they are making an appointment to be treated by Don Gatherer in conjunction with the additional findings of the board.


Further, depending on jurisdiction, it may be considered as a breach of Privacy legislation. This may turn on the reason for which information is provided by patients. Prima facie, patients provide information for therapeutic purposes and for contact purposes related to the therapeutic and related process. It could be construed that a form of "direct marketing" is outisde of this reason.


Regards
NIKO

 

Ron,
I have been a private practitioner in Melbourne and have been employing staff for 12 years. I have never heard of podiatrists being paid that lower wage!!! If that is occuring, the employee is just plain stupid for accepting that as a wage! I am currently advertising a full time position that pays double that, and believe me, I haven't been inundated with applicants. There are plenty of good, well paid jobs out there!!!!
By the way my reception staff get paid $22/hour!
Also why is this relevant to the employee stealing patient listings?

 

Let me clarify that I do not think that is acceptable business pratice to poach or even contact patients with the purpose of encouraging them to see a former employee at their own clinic.

However I also think that there is an issue (as outlined by Ron), with people in our profession preying on new graduates (who yes PODKMM, may be "plain stupid") and paying them extremely poorly for working hard.

I think as new graduates, they can be excused for naivity and inexperience. I see the situation is; the new grads see the prospective employers as 'mentors' or 'more experienced in the profession', and trust them in providing fair employment conditions. Then being taken for a ride.

To avoid this situation, if there were a more structured mentoring system between new grads and a group of fair, experienced podiatrists to provide guidance and advice on such issues as employment conditions and work ethics, maybe new grads may not be so "plain stupid" and these employers would not find it so easy each year to find podiatrists willing to agree.

 

All of this comes down to the perception of ownership. Ownership of patients is a very cloudy concept, as is the perception of ownership of a geographical area and digging further, ownership of employees themselves.

Lets look at an example. Fred (clinic owner) employes Grace. Grace is paid $22 per hour (silly girl). Grace is is a capable podiatrist who along with expanding the client base for her employer, develops strong relationships with her patients. She is a nice girl and people in her care enjoy her company. Grace decides after a while that she will ask for a raise ($22 by the way is tantamount to theft!!) - after all she realises that she is making Fred plenty of money. Fred says no. Grace resigns (as she should). A time later Grace opens up her own clinic 20kms away. Graces patients follow her after seeing her ads in the local paper. Fred cries fowl and threatens Grace with all sorts of things.

SO....questions!

1. Was Grace silly to accept such low wages for a university graduate?
2. Is Fred is a greedy bastard?
3. Is Fred is being anti-competitive in trying to limit Graces right to practice in an area of her choosing?
4. Is Fred exercising ownership over Grace because she worked for him for a while (making threats of board action etc)?
5. What about ownership of a Geographical area? How close is too close?
6. What does Grace do when clients seen at Fred's clinic phone for an appointment?
7. What about the pro's (make you money) an con's (they might leave and start up on their own) of employing staff?

I am not suggesting for a moment that anyone should steal patient details and use them to actively poach... however sometimes people like Fred "ASSUME" that poaching has occurred, when in reality patients have simply followed a good practitioner. What I find amazing is that some employers (you know who you are because your constantly advertising the same positions) treat their staff poorly and feel hard done by when their staff leave. I'd be interested in some feedback here!

Chris Williams

 

I also believe that there is really no way of stopping patient 'poaching and do agree that the patients are probably following a good practitioner.
I am an employer who has a clause in my employment contract stating that the employee is limited to 5 years and a10km radius of setting up their own practice. I believe that this is a standard clause, but have also been told it is worth as much as the paper it is written on.
The freedom of trade act????? supposedly defaults all of this????
I also sense a bit of bitterness Chris. Hope you have found good employment now!

 

The code of conduct for the HPC encompasses all aspects of a practitioners behaviour and practise as well as the ethos of the profession.

To do as those physios did was a breach of that code and also a serious breach of data protection.

MPs and their "ethical" behaviour comes to mind! they bent the rules but allegedly didnt break the Law.

Whatever.

I suspect that in this case the HPC is doing exactly what it was created to do.

Cornmerchant

 

My understanding, based on my limited understanding of case law in Australia is that these are enforceable provided that they are reasonable. What you and I think is reasonable may not be seen by the courts as reasonable. My understanding is that the courts have not enforced most of those that come before it as they were considered unreasonable (they weren't podiatry related though).

What is reasonable vs unreasonable? I do not think we know.
- an unlimited time (ie forever) would be unreasonable.
- 1 year limit would probably be reasonable.
- would a 5 yr limit be unreasonable?

- excluded from the city would be unreasonable.
- 1km from the current business located would be reasonable.
- would 10km be considered unreasonable?

I do know that a number of lawyers do not advise the inclusion of this clause, but I think it should be included. The reason being to remind the employee that there are potential ethical issues around this if they choose to leave and set up a business nearby,

 

Fair comment CP

Below is a Non competition covenant drafted by Harmers workplace lawyers in 2008 that they assured me would hold up in a court of law and allow the employer to claim for damages against an ex employee.

Upon the termination of your employment, for whatever reason, you will not, for the period of 6 months, or if that is held by a court to be unreasonable, for a period of 3 months, within a 2 kilometre radius of our practices, without Our prior written consent, be interested, engaged or employed, or act as an adviser or consultant in, or be an employee, agent or officer of, or an adviser or consultant to, any person, firm or corporation interested or engaged in directly or indirectly soliciting any of Our clients, to render services which could be rendered by Us.
For the purposes of this clause, the term ‘Our clients’ includes any of Our clients at the time the breach occurs as well as any client to whom we have rendered services in the 12 months prior to the termination of your employment.

The problem being though you need to be able to prove damages i.e.how much has the actions of the other party cost you? Very difficult to quantify.

Cheers
Stuart

 

I assume the reason would be is that the timeframe and distance in that clause would easily be considered "reasonable" by the courts.

 

Yep

And by having the 2 time frames it gives the courts some leeway. If the judge deems the first to be unjust it gives them another clause to fall back on instead of throwing the whole clause out.

cheers

stuart

 

Hi all,

I have been working in a private practice on a 50% fee share basis for over 10 years. In that 10 years I have worked hard to build up my own client base within the practice, and have a very good reputation. For over 3 years the owner of the practice has been saying that he will sell his practice and goodwill (50% of which I have created) to me and yet nothing has ever come of this. I keep asking and he just keeps saying that he's sorting the accounts.

I am now considering leaving and setting up on my own, however I am worried about breaching ethical code of practice. Financially, setting up my own from scratch will be much easier as I will not be buying an established practice and will not be paying out for goodwill that I have helped generate. Note alot of my patients come to the practice to see me, therefore surely I am the goodwill?

I have seen the ideal place to set up, but it is only 2 miles from the current practice I work in. I have no contract in place with the current owner, but I would like to point out that I have no intention of contacting any previous patients, I intend on relying on my repuation alone to grow my business.

This will all have a direct impact on the current practice I work in and will obviously cause anamosity.

Any opinions greatly appreciated.

 

Surely poaching existing clients from exisiting practices would need to be drawn in a contract and they are usually stated in 'intelectual rights' this stops poaching clients as a legal right but patients should have the choice of which practitioner they choose.

 

Contact the owner is a sit down meeting, if you really want to buy the practice make an offer, if you want to move out on your own let the owner know this and move on with the next phase of your career.

You could open next door if you wanted too.

Do the right thing by yourself if patient find you without you contacting them all good.

 

It amazes me that staff have a misguided expectation that ALL is owed to them. I read with disappointment and further amusement re the dribble of 50% commissions and years of building up someone elses practice and goodwill. Maybe you should go back one step and add that the owner put out alot of time and money at the initial stages to create a practice. Then I would presume, with years of hard work, the practice grew and allowed for a position like yours to be created. Bless us all, but now we can introduce an expectant employee to the practice, who has NO financial input, business input and stress to complain about, BUT that 50% isn't enough and the goodwill is his anyway.
What I suggest is that you stop your winning and DO start down the road. See how easy it is. ONE THING TO REMEMBER IS THAT THE PRINCIPAL PRACTITIONER is the networked ONE with the medico and allied practitioners in the area. The practice is also known and people will generally keep going back. I am a practice owner of 2 clinics for many many years. Been there and done that. Have had staff try it on. Let us all know how you are doing in your new venture.

 

Completely agree.

Podmad, for me, the case is open and shut. Your former employer owes you nothing except professional regard. Having parted on (hopefully) good terms, you own him/her nothing except professional regard. If you then try to poach his/her patients you lose that professional regard, all respect and perhaps even more importantly your own self-respect. Hopefully, you would be dragged up before your professional body in addition.

Try working off your own bat, build your own practice with all that involves, take on junior colleagues, treat them fairly and see if you feel that they are treating you fairly when they move on, open up locally and take your patients. The word is 'steal'; a person who steals is a thief. I am sure that your own professionalism will counter your current intentions.

All the best

Bill Liggins

 

Read a piece of the ACCC website ( Aust Competition & Consumers?) relating to Health Professionals last year. It clearly states that is illegal to include a clause that prevents an employee/ business associate opening a practice within a certain radius or time frame as it is anti competitive. Then again, if you are buying a business what are you paying goodwill for? A curly one for sure.
In my experience, employers who have staff leave on bad terms regularly, or "can't get staff" need to have a long hard look at themselves. It's easy to be complacent & think you are the greatest boss that ever was, if nobody ever tells you differently.
Cheers,
Kara

 

'It clearly states that is illegal to include a clause that prevents an employee/ business associate opening a practice within a certain radius or time frame as it is anti competitive'.

There you have it. One reason why the 'profession' is in the state it`s in (UK).

Business-Competitor rather than Profession-Colleague. For a profession to develop requires free exchange of ideas combined with mutual respect. That`s why one is hearing the term 'back stabbing' more and more. Why would you consider taking advantage of a trusting colleagues generosity for personal gain ?

It`s not only in PP but within the NHS that this 'modern' attitude is emerging, it has a fracturing effect with fear and suspicion a daily occurence !

 

So how do you refer to a more experienced colleague or one who has certain skills which you do not possess? How do you expect to receive patient referrals for the special skills which you have developed? Given this attitude, you will refer to no-one and since you grab any patient who is referred to you, rather than discharge back to the referrer in due course, you will receive no referrals.

This anal retentive attitude may be fine if you care not half a damn for your patients and wish to sit year on year carrying out repetitive routine treatment. You may be happy doing that but I was always led to believe that members of a medical profession owed a duty of care to their patients and did their very best to achieve cure.

The law may say what it says, and because it is arrived at by democratic means should be followed. However, I believe that the overriding 'law' is that of morality (ethics in our case). If the sum of your life is monetary gain, then carry on the way you are. If you feel that there are more important things, such as respect, self respect, standing in the community, extension of treatment modalities, morality and the enjoyment of all these things, then let your conscience dictate your way of life, not politicians.

All the best

Bill Liggins

 

I have come across a number of instances of this practice and discuses it with others. When this happens it seems that the employee or associate has no qualms in directly approaching there employers patients. This usually involves stealing the patient contact details from their employer with the breach of trust and confidentiality entailed.

The practice takes place in all work and professions. I have heard of hairdressers, plumbers, lawyers, surveyors and accountants all having the same problem. In the UK you cannot prevent a person from working at there trade or profession. You can attempt to limit an associate or employee by time and distance. In podiatry this is typically it is within a mile of your practice or from the town where you are and for a period of one year.

A friend an accountant and his colleague did it properly. In their contract they were barred from working in Eastbourne for one year. They went down the road to Hailsham approximately nine miles and fifteen minutes drive away They then took out a half page advert in the local paper announcing the commencement of their practice. There was no attempt to solicit clients but all the clients they wanted came over to them anyway. That is the right way to do it.

If you are a member of the Society and find yourself in this situation with an employee or associate you will find that they will not get involved as they regard it as a contractual matter for you. However as a trade union they might give support to the poor hard working, underpaid and exploited individual who has just left your employ.

So, if you think that you would be better off working for yourself by all means do so, just don't deliberately set out to steal your principals patients. You will then find out what it is like to pay the bills as well. I sincerely hope the HPC uphold the complaint and establish professional standards of behaviour not obvious elsewhere.

luke