Contracts and business advisory

 

No matter what type of organisation is involved, the successful provision of health services relies on sound commercial strategies, advantageous business structures and robust contracts. We use our commercial law expertise and knowledge of health sector regulations to assist different types of organisations to undertake procurement projects, negotiate and enter contracts, and structure their business and commercial activities.

We routinely work with clinical trial agreements, funding contracts, access agreements and a wide range of commercial agreements, and advise on intellectual property and competition law.Our aim is always the same – to help organisations achieve their commercial drivers within the constraints of regulation.

When it comes to commercial practice in health:

  • healthcare providers often carry the can for their service and product providers
  • contracts in health must address health sector regulation.

Examples of work done by Claro lawyers:

Contractual dispute about the extent of general practitioners’ obligations to provide access to primary health services under the back-to-back general medical practice agreement. We acted for a DHB in a High Court claim by a group of GPs who alleged that the DHB and an independent practitioner association were in breach of contract for deducting capitation funding after the GPs refused to provide after-hours services. The dispute arose following a reclassification of the GPs’ practices from rural to non-rural. One of the key issues for the Court was whether the GPs’ reliance on a telephone triage service and the DHB’s emergency department complied with the’ contractual obligation to provide access to First Level Services. The High Court found in favour of the DHB.

A GP practice in a dispute with an exiting partner. We advised the residual partners on a range of issues relating to the acrimonious departure of one GP from the practice. Issues included patient enrolment/capitation, shareholding in the practice company, director rights/obligations and clinical practice matters such as the transfer of clinical records. The dispute was successfully resolved at mediation.

Collective IT procurement involving three large DHBs. We advised on a procurement project involving the joint funding of a significant IT platform and the provision of “cloud” based support and maintenance services. The project required the negotiation of a robust commercial contract between the cloud based service provider, and the drafting of the supporting governance arrangements between the three DHBs.

Outsourcing agreement for a regulatory authority. We prepared and negotiated an agreement with an external provider to outsource examination services. This required us to understand the commercial drivers behind the proposed outsourcing, and to determine how best to achieve these within the ambit of the authority’s complex statutory role. Ancillary work on the project included providing advice on the regulatory authority’s statutory obligations to set and modify prescribed qualifications.

Clinical trial agreements and structures. We frequently provide advice on and review clinical trial agreements, and are experts at finding our way around the industry templates for clinical trial agreements and related indemnity and compensation agreements. Alongside this, we provide advice on structuring arrangements for the funding and operation of clinical trials, and the ownership of clinical research related intellectual property.

User friendly admission agreements for aged care facilities. We have developed and modified existing admission agreements so that they are easily understood by residents and their families; encompass all Aged Related Residential Care Contract requirements; and anticipate and address issues that can arise from time to time. We frequently advise on the role of the resident’s Enduring Power of Attorney, and appropriate processes where a resident is not competent and there is no one legally entitled to act on their behalf.

Primary care services agreements relating to delivery of primary care services by general practices in a range of contexts, including where the client was a PHO, and directly between a DHB and specialist local and/or general local practices (where there is no PHO in the district). We have in-depth knowledge of the national PHO services agreement, back-to-back agreements and the national systems for service delivery, claims and payment.

Governance and regulatory advice for health regulatory authorities, incorporated societies providing health services, professional Colleges, health providers, companies and other business entities within the health sector.

Competition issues.  We have advised private healthcare providers about legal issues relating to competitive practices in the market for healthcare; including on the interplay between competition law and the regulation of health practitioners. We have also advised on Commerce Commission investigations under the Commerce Act.