Long regarded as an ‘industry to watch’, Australia’s healthcare system continues to evolve as the population ages and government policy increasingly emphasises private sector involvement. Healthcare is heavily regulated, politically contested and subject to considerable media and public scrutiny. Front page issues such as workforce shortages, regulatory change and government budgetary policy have a real and immediate effect on the industry.

Freehills’ Healthcare team has been involved in the major commercial innovations in healthcare over the past decade – from the privatisation of public hospitals to the corporatisation of general practice to the consolidation of the private health insurance sector. Reflecting the diversity of the industry, our healthcare clients include major listed companies, religious and charitable providers, government agencies and practitioners.

Our healthcare practice is a dedicated commercial practice rather than a medico-legal litigation practice. It has evolved from our healthcare M&A experience, as clients found a continuing need for targeted commercial and regulatory advice once their acquisitions were completed.

We are uniquely placed to provide you with the following benefits:

• Informed strategic decisions: we successfully pinpoint issues that other advisers may overlook and our experienced practitioners work to resolve them in the right order. This helps you to minimise risk and strengthen your decision-making platform.
• Time and cost-effective solutions: our depth of industry experience, together with our understanding of the ‘politics’ of the industry, and our timely and efficient liaison with key regulators, means that you will not be subjected to unnecessary costs and delays.
• Tailored strategic advice: having acted for a wide range of healthcare organisations, we understand that your requirements are unique and we work through the specific complexities to help you to achieve a successful outcome.
  

We have advised clients on a range of transactions in the healthcare industry across various industry segments including:

• private hospitals
• pathology
• diagnostic imaging
• private health insurance
• aged care 
• medical centres.

As one of the leading legal advisers in mergers and acquisitions (M&A) in Australia, we have acted in many of the largest deals in the healthcare industry. However, the dollar value of a transaction is not always a reliable indicator of its complexity, particularly in healthcare. We have also acted in a range of complex smaller transactions, for example, transactions requiring a number of healthcare-specific regulatory approvals.

Of course, our healthcare industry experience has been developed against the background of the pre-eminent expertise of the broader Freehills corporate practice, including in M&A, corporate advisory, capital raising and privatisation.

Commercial arrangements with key suppliers and clients support the day-to-day work of our healthcare clients. We have extensive experience in negotiating and documenting these arrangements and work towards obtaining the best solution for clients’ unique needs. We focus on delivering our services efficiently – for example, drafting pro forma agreements that can be tailored by our clients as required.

Types of commercial arrangements we have developed with our healthcare clients include:

• outsourcing agreements, including:
  - private hospital outsourcing (pharmacy, catering, emergency medicine)
  - public hospital outsourcing (pathology, diagnostic imaging)
• service agreements, including:
  - private hospital service level agreements (pathology, diagnostic imaging)
  - support services agreements (medical centre operators, dental centre operators)
• health fund agreements, for example, Hospital Purchaser-Provider Agreements (HPPAs), Medical Purchaser-Provider Agreements (MPPAs) and dental centre operation agreements
• joint ventures, for example in relation to the operation of private hospitals and diagnostics clinics
• other healthcare agreements, including nursing agency agreements, clinical trial agreements and preferred provider agreements
• privatisation and co-location agreements for privatised public hospitals, co-located private hospitals and privatised nursing homes.
  

Healthcare regulation comes from a range of sources including health professional registration legislation, public health legislation, funding legislation (for example, in relation to Medicare, the Pharmaceutical Benefits Scheme and residential care subsidies) and industry-specific licensing legislation.

We have provided regulatory advice to our healthcare clients on issues as diverse as private hospital licensing, legality/Medicare eligibility of particular procedures, ownership restrictions in dentistry and pharmacy, medical practitioner advertising, hearing aid subsidy requirements, Medicare fraud and inducements/secret commissions offences. We also have a strong understanding of how more general legislation, such as the Trade Practices Act 1974 (Cth), applies to arrangements in the healthcare industry.

Freehills has assisted a number of our healthcare clients with their public affairs and lobbying activities in relation to proposed legislative changes and issues which have attracted public controversy.

We also have a particular focus on delivering in-depth training on healthcare regulation in small group settings. Several of our healthcare clients use such sessions as part of their induction training for their legal counsel and senior officers. Our healthcare regulation training sessions have been described by clients as ‘invaluable’ and ‘relevant and accessible to any audience’. One legal counsel comments that the notes from the sessions have become ‘among the most frequently used materials in my office’.

Freehills combines its infrastructure, construction and property development experience in a single multidisciplinary group, enabling us to provide an integrated, full-service approach.

Our team has industry-relevant experience in areas such as property development, major construction and engineering projects, project finance, real property, project dispute resolution and public private partnerships (PPPs).

We have advised clients on a range of major healthcare projects, particularly in relation to the development/redevelopment of hospitals and aged care facilities. We also do day-to-day property work for some of our healthcare clients – for example, assisting private hospital clients with their consulting suite leases.

Freehills’ demonstrated expertise in the field of banking and finance law positions us as a leader in the Australian market. We are involved in a vast range of deals and transactions working with a broad variety of clients. Areas of focus include leverage and acquisition finance, structured finance, securitisation, project finance, property finance, capital markets and corporate finance.

We represent the major financial institutions in Australia as well as numerous other investment banks and leading Australian corporates. We take the time to listen to our clients’ individual requirements and present tailored legal advice that assists them to make the best decisions.

Examples of our recent experience include:

• acting for financiers in relation to sale and lease back and triple net leasing arrangements in the aged care sector, including refinancing arrangements for charitable providers
• advising hospital operators in relation to the financing of medical equipment under lease finance structures
• assisting a financier in developing two new structured finance products involving insurance wraps for aged care providers
• acting for financiers in the acquisition and operation of aged care facilities across Australia.

Our Competition Law team has a wide range of experience in the healthcare industry, and has acted for participants in the private hospital, pathology, diagnostic imaging and private health insurance sectors.

For example, we have provided advice in relation to a number of merger clearances in the healthcare industry, particularly in the areas of private hospitals and diagnostics. We also assisted a group of private hospital operators to obtain a ‘collective bargaining’ authorisation from the Australian Competition and Consumer Commission (ACCC) to facilitate their negotiations with health funds. We are currently assisting a learned specialist college with a complex authorisation matter.

In addition, the team has the full range of expertise and experience in all aspects of competition law, ranging from strategic advice, through formal and informal dealings with the ACCC to enforcement in the courts.

Healthcare providers are regularly called upon to manage vast quantities of extremely sensitive personal information. Indeed, it is difficult to imagine any single category of records which is more sensitive than medical records.

Freehills has significant and unique experience in all aspects of privacy regulation, policy and data protection. For example, we recently completed a project for a major healthcare provider which required us to design manuals for use by administrative staff when handling information access requests from patients and other persons.

Freehills combines expertise in all areas of employee relations law with broad experience in the healthcare industry, to help clients solve their problems. For example, our Employee Relations team has assisted healthcare providers with:

• understanding how healthcare professional registration affects workplace restructuring options
• structuring of employment and consultancy arrangements
• salary packaging arrangements (eg for employees of charitable providers).

We can deliver comprehensive and commercial advice to healthcare clients in all areas of employee relations including employment law, industrial relations, equal opportunity and occupational health and safety.

Our healthcare experience includes acting on the following transactions:

• Bupa – We acted for The British United Provident Association (Bupa) in relation to:
  • its $1.2 billion acquisition of DCA Agedcare Group in Australia and New Zealand, and
  • its $2.41 billion merger with health insurer MBF Australia Limited, the biggest friendly takeover on record in Australia’s private health fund industry.
• Australian Government Department of Finance and Administration – We acted for the Department of Finance and Administration on the scoping study for the potential privatisation of Medibank Private.
• Mayne Group Limited (now Symbion Health Limited) – We acted for Mayne Group in relation to deals involving private hospitals such as:
  • the acquisition of Hospitals of Australia Limited with its private
  • hospitals in New South Wales and Victoria
  • the acquisition of Hospital Corporation Australia Pty Limited with its
  • private hospitals in New South Wales, Victoria and Queensland
  • the takeover of Australian Medical Enterprises Limited with its private
  • hospitals in New South Wales and Western Australia
  • the acquisition of: 
    • North Gosford Private Hospital
    • John Fawkner Private Hospital
    • Mount Waverley Private Hospital
    • Wangaratta Private Hospital
    • Caloundra Private Hospital
    • Hillcrest – Rockhampton Private Hospital
    • John Flynn – Gold Coast Private Hospital
    • Nambour Selangor Private Hospital, and
    • North West Private Hospital – Brisbane.
  • the divestment of:
    • Peninsula Private Hospital, and
    • Liverpool Private Hospital.

We have also acted for Mayne in relation to the acquisition of numerous pathology practices, diagnostic imaging practices and medical centres.

• DCA Group Limited – We acted for DCA Group Limited:
  • on its $2.7 billion public-to-private takeover by CVC Asia Pacific Limited and CVC Capital Partners (collectively ‘CVC’) by way of a scheme of arrangement
  • in relation to its merger with rival MIA Limited. Following completion of the transaction, DCA emerged as one of the world’s largest health and aged care companies with a market capitalisation in excess of $1.25 billion
  • on the expansion of its aged care interests with the acquisition of New Zealand’s Guardian Healthcare Group Limited for $270 million, and
  • on its successful ‘HELTHYS’ (Hybrid Equity-Linked Trust-issued High-Yield Securities) capital raising, which raised $200 million, to partly re-finance its acquisition of Guardian Healthcare.
• Endeavour Healthcare Limited – We acted for Endeavour Healthcare Limited in relation to the $25 million sale of its pathology and medical centre businesses to Sonic Healthcare Limited and Independent Practitioner Network Limited.
• AXA Asia Pacific Holdings – We acted in relation to the sale of AXA Health Insurance to a consortium led by Macquarie Bank and including BUPA for $595 million.
• Wesley Mission Melbourne – We acted for Wesley Mission Melbourne in relation to its acquisition of two aged care facilities from Retirement Care Australia Pty Limited.
• Public and Private Partnerships – Examples of Freehills’ work in government related projects in the health industry include:
  • we acted for Mayne in relation to its successful bids for and negotiations of the following public hospital privatisations:
    • Port Macquarie Base Hospital (New South Wales)
    • Noosa Hospital (Queensland)
    • Joondalup Hospital (Western Australia), and
    • Mersey Community Hospital (Tasmania).
  • we acted for Mayne in relation to its successful bids for and negotiations of the following private hospital co-locations:
    • Armidale Private Hospital (New South Wales)
    • Prince of Wales Private Hospital (New South Wales)
    • Frances Perry House (Victoria)
    • Geelong Private Hospital (Victoria)
    • Melbourne Private Hospital (Victoria)
    • Caboolture Private Hospital (Queensland), and
    • Logan Private Hospital (Queensland).
  • we acted for the Sanesco Consortium in respect of its bid for the $250 million Royal Women’s Hospital PPP redevelopment project in Victoria
  • we acted for a bidder for the Newcastle Mater Hospital PPP project in New South Wales
  • we acted for a bidder for the Berwick Community Hospital project under the Partnership Victoria PPP policy, and
  • we acted for the Advent/AXA project vehicle in relation to a series of cogeneration projects in various Victorian hospitals, including Australia’s first issue of tax-exempt infrastructure bonds.