Chapter 6: Management of the practice list of patients

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Management of the Practice list of patients

 

This chapter contains:

 

1.              Introduction.

2.              The sources of the rules relating to GP Practice Lists.

3.              To whom is a GP practice obliged to provide primary care services?

4.              The registered patients of the practice.

5.              Temporary residents.

6.              The practice area for a GP practice.

7.              Applications by patients to join the list of a GP practice.

8.              Appeals by patients against decisions to refuse them entry to a practice list.

9.              Introduction to removal of patients from as GMS practice list.

10.           Removal of violent patients from GP Practice lists.

11.           Discretionary removal of patients from a GP practice list.

12.           Closure and reopening of GP practice lists.

 

1.             Introduction.

 

1.1           GP services are the building block of NHS services because, other than attendance at an Accident and Emergency Department of an NHS hospital, the GP is the gateway by which the vast majority of NHS services are accessed by patients[1].  However the provision of all medical services to patients only usually occur where the patient seeks those services from a GP practice where the patient is registered (although  GP practice must provide services to other persons as set out below).  There is no obligation on anyone living in England to register with an NHS GP practice.  This is a matter of free choice for each individual.   But the patient can only generally access services by first getting themselves registered with a local GP practice.

 

1.2           The legal duty for the NHS to commission GP services rests on the National Health Service Commissioning Board, known as “NHS England”.  Section 84 of the National Health Service Act 2006 (“the NHS Act”) provides that NHS England is required to set up “arrangements” so as to provide primary medical services throughout England “to the extent that it considers necessary to meet all reasonable requirements”. 

 

1.3           The wording of the statutory duty means that there is no absolute legal requirement on NHS England to ensure that every individual is able to register with a GP practice which is local to their home.  The duty is to set a network of GP services to meet the reasonable requirements of patients, and what is reasonable will depend in part on the resources available to NHS England. 

 

1.4           There are occasions when a person cannot find a GP who is prepared to admit that person to their list (either as a registered patient or as a temporary patient).  There can be many reasons why an individual patient may find it difficult to find a place on a GP list of a local practice.  There are very occasional circumstances where all local GP practices are full and have closed their lists.  In such circumstances NHS England will probably have a duty to secure additional GP services in the area to meet its duty under section 84.  However the more common reason why a person finds difficulty in registering with a GP practice is because that person has previously been removed from lists of other GP practices in the area for being violent, offensive or for another permissible reason.  Most NHS areas have a reserve facility to provide GP services to patients who have been excluded from the lists of other practices.  The details of removal and its consequences are explored below.

 

1.5           The fact that a patient is having difficulty finding a GP will not usually, of itself, be sufficient to demonstrate a breach by NHS England of their duty under section 84.  A breach of the section 84 duty would only be established if NHS England had failed to make a proper assessment of the level of local need for GP services in an area or had not produced a plan to deliver services to meet the identified needs.  NHS England cannot form a judgment as to whether it is delivering on its duty to provide services to meet the reasonable requirements of the local population for GP services unless it has knowledge of the needs of the population for those services.   That knowledge could be based on a needs assessment or could be judged by the number of practices who are open to new patients in an area (and the number of registered patients per GP).

 

1.6           NHS England’s role is to commission a GP practice to deliver services to NHS patients.  Once the commissioning contract is in place the onus shifts to the relationship between the GP and the individual patient because a doctor/patient relationship will only work if there is a measure of trust on both sides.  The patient has to have confidence in the medical practice and, if the patient does not have that confidence, the statutory scheme allows the patient to leave the practice and register with another medical practice.  However a measure of trust is also required the other way – namely from the doctor to the patient.  This can be a very delicate area in practice because there are conflicting interests.  On the one hand the NHS ought not to foist a patient on a GP with whom the practice cannot build any form of therapeutic relationship.  On the other hand GPs are delivering public services and so should have a duty to work with any member of the public who wishes to access their services.  Teachers and social workers cannot, for example, pick and choose the members of the public to whom they are obliged to provide public services as part of their occupation (paid for by taxpayers money).   GPs should certainly not be able to react to complaints by removing a patient from their practice list. 

 

1.7           This chapter explores the legal rules which apply to doctors admitting patients to their lists, removing patients from their lists and the powers of NHS England to force an NHS GP practice to take a patient onto the practice list.

 

2               The sources of the rules relating to GP Practice Lists.

 

2.1           All NHS GP practices hold a contract with NHS England.  These contracts define the contractual obligations of the GP practice.    Most NHS GP practices hold General Medical Services (“GMS”) or Personal Medical Services Contracts (“PMS”).  A smaller number of practices hold Alternative Personal Medical Services Contracts (“APMS”) contracts.  The difference between the forms of contract is explained at Chapter 3.   The contracts seek to hold the ring between the interests of individual patients and the interests of the practice, with NHS England having an adjudication role if there is a dispute to attempt to ensure that patients are not left without a GP. 

 

2.2           The scheme for the management of NHS patients is broadly the same under all forms of NHS Contract.  There is a standard form developed by NHS England for a GMS contract.  This contract is based on the National Health Service (General Medical Services Contracts) Regulations 2004 (as amended) (“the GMS Regulations”).  However many GMS practices will be working under a previous version of the contract with a completely different numbering system for the clauses.  There is no standard form PMS contract but every PMS contract is required by the National Health Service (Personal Medical Services Agreements) Regulations 2004 (as amended) (“the PMS Regulations”) to contain terms which govern the admission and removal of patients to a practice list.  The terms of APMS contracts are not governed by Regulations but they usually have terms concerning the admission and removal of patients to a practice list which follow the GMS/PMS scheme.

 

2.3           In order to make this Guide readable it will refer to the GMS provisions by reference to the GMS Regulations.  The equivalent reference in the PMS Regulations will be set out in a footnote.

 

3               To whom is a GP practice obliged to provide primary care services?

 

3.1           The word “patient” is defined in Regulation 2 of the GMS Regulations as follows:

 

(a)            a registered patient,

 

(b)            a temporary resident,

 

(c)            persons to whom the contractor is required to provide immediately necessary treatment as part of its obligation to provide essential services, and

 

(d)            any other person to whom the contractor has agreed to provide services under the agreement”

 

3.2           This definition means that there are 4 categories of persons who a GP practice may be required to provide primary medical services under a GMS agreement[2], namely:

 

a)      Registered patients of the practice;

b)      Temporary residents;

c)       Persons to whom the contractor is required to provide emergency services; and

d)      Patients who are required to be provided with services under Regulation 31 of the GMS Regulations following the failure of an application to close a practice list.

 

3.3           Regulation 18(1)(b) of the GMS Regulations requires every GMS contract[3] to specify:

 

“to whom such services are to be provided”

 

3.4           Thus the contract has to specify the categories or persons who the GP practice are contracted to provide primary care services, which is a reference to the 4 categories of persons  set out above.  It is therefore necessary to look at each group separately in order to identify the extent of the contractor’s obligations.

 

3.5           Further details of the clinical services that a GP is obliged to provide are set out in the chapter on “What a GP Practice is obliged to provide”.

 

4               The registered patients of the practice.

 

4.1           Regulation 2 of the GMS Regulations defines a “registered patient”[4] of a GP practice as follows:

 

“registered patient” means—

 

(a)     a person who is recorded by the Board as being on the contractor's list of patients, or

 

(b)     a person whom the contractor has accepted for inclusion on its list of patients, whether or not notification of that acceptance has been received by the Board and who has not been notified by the Board as having ceased to be on that list

 

4.2           The wording of this definition is unfortunately not entirely clear.  There are 2 categories of patients or patients who are clearly included as registered patients with a GP practice, namely:

a)      Patients who are on the GP practice list held by NHS England (because the practice has notified NHS England that the person is on the practice list and NHS England have put that name on the list); and

 

b)      Patients who have been accepted by the practice into the practice list but where the practice has yet to pass their name on to NHS England.

 

4.3           However it is not clear from this wording whether a patient was formerly on the practice list can be readmitted at any point before his or her name is accepted (or perhaps re-accepted) by NHS England.  The drafting may be slightly unfortunate because it was probably the intention of the draftsman that such patients would be re-admitted as practice patients if they were accepted by the practice.  However this is not quite what the Regulation says.

 

4.4           The literal meaning of the words suggests that persons who have been removed from the list of a practice, for whatever reason, can only regain their status as a practice patient by being included by NHS England on the practice list.  The purpose of this arrangement appears to be to ensure that disruptive or violent patients who are excluded from a practice list and are properly notified, cannot claim that the practice has accepted them back as a result of an informal agreement.  Once a notified former patient is excluded the patient can only regain their status as a practice patient by getting onto the list for the practice held by NHS England.  In practice this will mean that the practice has to forward the relevant name to NHS England and ask that the patient be restored to the list of registered patients.

 

5               Temporary residents.

 

5.1           A person can only be permanently on the list of one NHS GP practice at a time.  However a person may be in need of primary care services when temporarily away from the area in which they are registered as a GP.  Both the GMS and PMS contracts enable patients to access services in such circumstances by registering with a GP as a “temporary resident”.  The GMS contract set out the scheme for dealing with temporary residents at clause 13.6 of the present form of standard GMS contract (which is mandated by paragraph 16 of Schedule 6 to the GMS Regulations)[5].  The clauses provide:

 

“13.6.1. The Contractor may if its list of patients is open accept a person as a temporary resident provided it is satisfied that the person is-

 

(a) temporarily resident away from his normal place of residence and is not being provided with essential services under any other arrangement in the locality where he is temporarily residing; or

 

(b) moving from place to place and not for the time being resident in any place.

 

13.6.2. For the purposes of clause 13.6.1, a person shall be regarded as temporarily resident in a place if, when he arrives in that place, he intends to stay there for more than 24 hours but not more than three months”

 

5.2           The following points are relevant to temporary residents:

 

a)      It is irrelevant whether the temporary resident is or is not usually, ordinarily or habitually[6] resident in the UK at the time that they seek primary care services from a GP or is a UK citizen.  A temporary resident will often be someone who is usually resident abroad.  Although NHS services are provided primarily for the “physical and mental health of the people of England” (see section 1(1) of the NHS Act) there is nothing in the statutory scheme which requires a person to be a UK national or usually, ordinarily or habitually resident in the UK before that person can take advantage of NHS services.  Hence it is probably unlawful to refuse to register someone as a temporary resident solely on the grounds that the person is not usually, ordinarily or habitually resident in the UK;

 

b)      It is irrelevant whether the proposed temporary resident is registered with another GP practice (either as part of the NHS or in another part of the world).  A person can apply to be accepted by a practice as a temporary resident if they have a GP in another part of the country and if they have no other GP;

 

c)       The proposed temporary resident is not required to be temporarily living in the GP practice area.  However if the person is temporarily living outside the GP “practice area”, the contractor has the right to refuse to register the person as a temporary resident.  See below for a further discussion on the definition of a GP practice area;

 

d)      If the person intends being resident in their present “temporary” home for more than 3 months then the person cannot be registered as a temporary resident.  The only option here would be for the GP practice to register the patient as a permanent patient;

 

e)      Once a person is registered as a temporary resident, the GP practice has the same duties to that patient as the GP practice has to all its other patients;

 

f)        At the point that the temporary resident is accepted onto the practice list (as a temporary resident), the contract requires the GP practice to agree the period of time that the practice agrees to provide primary care services to the patient.  If, for example, a patient seeks services during a 2 week holiday it is sensible to agree with the patient that he or she will be admitted to the practice list as a temporary resident for a period of 2 weeks.  Once a patient is admitted to the practice list as a temporary patient the usual rules about removal of patients from the practice list apply during the agreed period or, if no period is agreed, the usual rules apply for a period of 3 months.  After the agreed period has expired, clause 13.6.3 of the standard GMS contract provides that the practice has an absolute right to terminate the patient's status as a temporary resident[7];

 

g)       If the practice does not take steps to end the person’s status as a temporary resident, the person remains indefinitely registered with the practice as a temporary resident and, if the person presents seeking services, the GP practice has an obligation to provide those services to the patient.

 

5.3           A GMS or PMS practice can refuse to admit a patient as a temporary patient provided the reason for refusal is not one of the prohibited reasons set out in the GMS or PMS Regulations.  The rules on refusing to accept a patient as a temporary patient are the same as those for refusing to accept a person as a permanent patient and are discussed below. 

 

6               The practice area for a GP practice.

 

6.1           Regulation 18(1)(d) of the GMS Standard Contract requires the contact to specify:

 

the area as respects which persons resident in it will, subject to any other terms of the contract relating to patient registration, be entitled to—

 

(i)     register with the contractor, or

 

(ii)     seek acceptance by the contractor as a temporary resident

 

6.2           This provision is replicated as an option in Regulation 11(1A) of the present version of the PMS Regulations.   The “practice area” under Regulation 18(1)(c) is referred to as a “patient registration area” in clause 13.2.1 of the GMS standard contract.

 

6.3           The purpose of the practice area is to create a geographical area outside of which the GP practice are entitled, as of right, to refuse to register patients on the grounds that the patient lives outside the practice area.  However a contractor is not obliged to refuse to register someone who lives outside the practice area.  The practice can register a patient with a GMS practice regardless as to whether that person lives within the practice area or not but, where the area is defined, the contractor is under no duty to do so.  The GMS and PMS Regulations provide that an application by the patient can be refused because living outside the area gives the contractor a “good reason” to refuse to register the patient. 

 

6.4           The Regulations use the test as to whether a person “lives” in the contractor’s practice area.   There is no definition of the meaning of “lives” in the GMS or PMS Regulations but it seems likely that this refers to a person’s place of ordinary residence.  It is well established that a person can be ordinarily resident in more than one place at a time.  For example, students regularly register with a GP practice near their university and thus can only be treated during the vacation by registering as a temporary resident on the practice list at place of vacation residence (which may be their parent’s home).  Students are usually accepted to be “ordinarily resident” in both places at the same time and can thus, for example, register to vote in both places[8] but can only be on one GP list as a permanent residence at a time. 

 

6.5           However there will be more borderline cases.  A person who has a second home that is used exclusively for holidays for a few weeks in each year probably does not “live” at the place of the second home and therefore a GP in the area of the holiday home would be under no duty to accept such a person on their list as a registered patient.  

 

6.6           The GMS and PMS schemes only permit an NHS patient to be registered with one GP practice at a time.  There appear to be 3 potential reasons for providing that a patient can only be registered with one practice at a time:

 

a)      A complete set of the patient’s medical notes need to be in a single place and, if additions are made to those notes, additions should all be made to the same set of notes.  This may become less important with the emergence of electronic records but unless the electronic patient records improve vastly (and there is greater standardisation of GP electronic records systems) if a patient is registered with more than one GP practice there will always be a danger of inconsistent records in different practices;

 

b)      If the patient has a long term or complex condition, a single practice needs to take lead clinical responsibility for the management of the patient.  Permitting a patient with say diabetes or recovering from a stroke to be registered with more than one practice may lead to inconsistent treatment protocols; and

 

c)       GP practices get paid (in part) on a capitation basis.  The NHS would incur additional costs if patients were able to register at multiple practices.

 

6.7           Accordingly individuals who live in more than one place need to decide where to register for primary care services.  The NHS Choices website[9] recommends students to register with a GP at college for the following reasons:

 

Health professionals who understand students' needs can support you. Dr Chris Allen, a GP at Imperial College in London’s Health Centre, says, "Many students will be having sex, some for the first time, so it’s important to get advice on safe sex, sexual health and contraception.

 

"Being away from home for the first time, along with the academic and financial pressures of being a student, can lead to mental health problems, including anxiety and depression."

 

Below are Dr Allen's five health tips for new students.

 

Register with a local GP

 

If, like most students, you spend more weeks of the year at your college address than your family’s address, you need to register with a GP near your college as soon as possible. That way you can receive emergency care if you need it and access health services quickly and easily while you're at college.

 

"It’s especially important if you have an ongoing health condition such as asthma, diabetes or epilepsy," says Dr Allen. "Ideally, I like to see these patients within a few days of them starting college to check their health and medication."

 

6.8           However students, and everyone else who lives in more than one location, should be advised that registering with one practice will inevitably lead to their removal from the practice list in their other place of residence.  If a person needs primary medical treatment in their other place of residence the person can register with the practice as a temporary resident. 

 

6.9           The outer practice area for a GP practice:  There are instances of people who continue be registered with a practice, despite living outside its boundary area.  As explained above, a GP practice is entitled (but not obliged) to register a person who lives outside the practice area.  However changes to the GMS contract in 2012 made provision for patients who were originally living inside the GP practice area but then move to live in an area which is reasonably proximate to the practice but is nonetheless outside the GP practice area.

 

6.10        Part of the agreement reached between NHS Employers (on behalf of the Secretary of State for Health) and the General Practitioners’ Committee of the British Medical Association through the negotiations on changes to the GMS contract for 2012/13 [10]  in respect of choice of GP practice was that:

 

“GP practices will agree with their PCT an outer practice boundary area where they will retain, where appropriate, existing patients who have moved house into the outer boundary area.”

 

6.11        This agreement resulted is in a new set of clauses to the GMS agreement which now provide:

 

“13.3.1. The area, other than the area referred to in clause 13.2.1, which is to be known as the outer boundary area is [ ].

 

13.3.2. Where a patient moves into the outer boundary area referred to in clause 13.3.1 and wishes to remain on the Contractor’s list of patients, the patient may remain on that list if the Contractor so agrees, notwithstanding the patient no longer resides in the area referred to in clause 13.2.1.

 

13.3.3. Where a patient remains on the Contractor’s list of patients as a consequence of clause 13.3.2, the outer boundary area is to be treated as part of the practice area for the purposes of the application of any other terms and conditions of this contract in respect of that patient”

 

6.12        There is no obligation on GP practices to agree to vary their GMS agreement to include an Outer Boundary Area, but the above provision operates if the practice agrees to do so.

 

7               Applications by patients to join the list of a GP practice.

 

7.1           Paragraph 14 of Schedule 6 requires the GMS contract to include the following term:

 

The Board shall prepare and keep up to date a list of the patients—

 

(a)     who have been accepted by the contractor for inclusion in its list of patients under paragraph 15 and who have not subsequently been removed from that list under paragraphs 19 to 27; and

 

(b)     who have been assigned to the contractor under paragraph 32 or 33 and whose assignment has not subsequently been rescinded”

 

7.2           Hence the primary duty to keep a list of registered patients for each primary care practice falls on NHS England.   However there are also duties on the contractor to inform NHS England “as soon as possible” when a patient is accepted onto the practice list[11] or when a patient is removed from the contractor’s list[12].  In addition, of course, GP practices keep their own lists of NHS patients.

 

7.3           Anyone can apply to join the practice list of a GMS GP practice either as a permanent or temporary resident by “delivering to the practice premises a medical card or an application signed (in either case) by the applicant or a person authorised by the applicant to sign on his behalf[13].  The application is made by the patient themselves if the person is an adult and is capable of making the application.    The application can be made on behalf of the proposed patient[14] as follows:

 

An application may be made—

 

(a)     on behalf of any child—

 

(i)     by either parent, or in the absence of both parents, the guardian or other adult who has care of the child,

 

(ii)     by a person duly authorised by a local authority to whose care the child has been committed under the Children Act 1989, or

 

(iii)     by a person duly authorised by a voluntary organisation by which the child is being accommodated under the provisions of that Act; or

 

(b)     on behalf of any adult who lacks the capacity to make such an application, or to authorise such an application to be made on their behalf, by a relative of that person, the primary carer of that person, a donee of a lasting power of attorney granted by that person or a deputy appointed for that person by the court under the provisions of the Mental Capacity Act 2005

 

 

7.4           A “medical card” means a “card issued by the Board, Local Health Board, Health Authority, Health Board or Health and Social Services Board to a Standard General Medical Services Contract person for the purpose of enabling him to obtain, or establishing his title to receive, primary medical services [15] .  However it is not necessary for a prospective patient to present a medical card.  Any document which can reasonably be taken by the contractor as being an application by a person to be registered at the practice and is signed by or on behalf of the patient is sufficient to constitute an application by the prospective patient.

 

7.5           Once the contractor receives the application the GP practice must decide whether to accept the patient onto the practice list as either a permanent patient or a temporary resident, or refuse to register the patient.  If the practice list is closed (see the separate section of this guide for provisions regarding the opening and closure of lists of patients) the only person who can be accepted onto the list is an immediate family member of a registered patient.  This is provided for in clause 13.5.2[16] of the standard GMS Contract which provides:

 

“The Contractor may, if its list of patients is closed, only accept an application for inclusion in its list of patients from a person who is an immediate family member of a registered patient whether or not resident in its practice area or included, at the time of that application, in the list of patients of another contractor or provider of primary medical services”

 

7.6           An “immediate family member” means[17]:

 

(a)     a spouse or civil partner,

(b)     a person (whether or not of the opposite sex) whose relationship with the registered patient has the characteristics of the relationship between husband and wife,

(c)     a parent or step-parent,

(d)     a son,

(e)     a daughter,

(f)     a child of whom the registered patient is—

(i)     the guardian, or

(ii)     the carer duly authorised by the local authority to whose care the child has been committed under the Children Act 1989, or

(g)     a grandparent”

 

7.7           This provision prevents a GP practice from having a closed list but being selective about who is admitted to the practice in the period when the list is closed (so as to avoid a situation where, for example, only patients who are straightforward to manage are accepted onto the practice list).  Only immediate family members can be added to a closed list regardless as to where that person lives.  However there is no obligation on a GMS contracting practice to take an immediate family member who lives outside the practice area onto the list.  In the case of immediate family members who live in the practice area, the practice needs to have reasonable grounds for refusing to take the person onto the list.  However, although this is not expressly stated in the Regulations, the fact that the practice list is (depending on the circumstances) closed is capable of amounting to such a reason.

 

7.8           If the practice list is open then, clause 13.7.1 of the standard GMS contract provides that the contractor may only refuse the application to join the practice list either on a permanent basis or as a temporary resident:

 

“... if it has reasonable grounds for doing so which do not relate to the applicant’s race, gender, social class, age, religion, sexual orientation, appearance, disability or medical condition”

 

There will be a like provision in PMS agreements as a result of paragraph 16 of Schedule 5 to the PMS Regulations. 

 

7.9           It follows that an NHS practice cannot refuse to admit a patient to its list either on a permanent basis or as a temporary resident because the patient suffers from a medical which will be time consuming for the doctors working at the practice or will result in the practice having to prescribe expensive drugs or other treatment for the patient.  Equally the patient cannot be refused admission to the practice list on grounds which might give rise to a free standing discrimination claim under the Equality Act 2010, such as on the basis of race or sexual orientation.  This provision raises some interesting and potentially difficult questions as to whether GP practices can refuse to register patients with alcohol or drug problems.  A GP practice would not be entitled to refuse to register a person because they suffered from such an addiction but may be entitled to refuse to register such a patient if their conduct (related to their addiction) makes it difficult or impossible for the GP to be able to provide primary care services to the patient.  This can be a difficult area in practice and GP practices may well find it sensible to seek legal advice in borderline cases.

 

7.10        However if a patient is refused admission to a practice list it is difficult if not impossible to see how the patient would be able to commence a sustainable legal action against the practice to challenge the decision unless the patient brought an action for disability discrimination.   The patient could allege that the practice has acted in breach of its duties under the GMS contract but that would not assist the patient because the contract does not give rise to any rights which can be enforced by a person who is not a party to the contract (see above).   It seems unlikely that the practice would be acting as a public body in making this decision and therefore a judicial review claim would probably not be possible.  In any event the patient would have an alternative remedy of asking NHS England to assign the patient to the practice list, and so a judicial review claim (which is a remedy of last resort) would be premature.

 

7.11        However a patient who was refused admission to a practice list could report the doctors to the General Medical Council (“GMC”).  The issue of reports to the GMC is considered in more detail below in relation to the removal of patients from a GP list but it could apply equally to a refusal to take a patient onto a list in the first place.

 

7.12        If NHS England considered that the practice had refused one or more patients access to the patient list in circumstances which amounted to a breach of contract (because the practice did not have good reasons for the refusal), NHS England would be entitled to serve a Remedial Notice on the practice under clause 26.13.1 of the standard GMS contract.  The consequences of such a notice are explored below.

 

8               Appeals by patients against decisions to refuse them entry to a practice list

 

8.1           A patient who has been refused admission to a practice list by a GMS or PMS contractor (either on a permanent or temporary basis) is entitled to apply to NHS England to be admitted to the practice list, even if that list is closed, after the contractor has made the decision to refuse to permit the patient to be admitted to the list.  The fact that the decision was made by the GP practice for a good reason (as the GP practice sees matters) does not prevent the patient from having this right.

 

8.2           Clauses 13.23 to 13.25 of the standard GMS contract (which is mandated by the provisions of paragraphs 32 to 34 of Schedule 6 of the GMS Regulations[18]) provides how the decision is to be made by NHS England when a patient appeals against the refusal by the practice to admit a patient to its list (either permanently or on a temporary basis).  These clauses are as follows:

 

“13.23.1. The Board may, subject to clause 13.24.1, assign a new patient to the Contractor whose list of patients is open.

 

13.23.2. In this clause, and in clauses to 13.24.1 to 13.24.2 and clauses 13.26.1 to 13.28.3, a “new patient” means a person who-

 

(a)  has been refused inclusion in a list of patients or has not been accepted as a temporary resident by the Contractor; and

 

(b)  wishes to be included in the list of patients of the Contractor in whose area (as specified in clause 13.2.1) that person resides

 

13.24.1. The Board may not assign a new patient to the Contractor where it has closed its list of patients except in the circumstances specified in clause 13.24.2.

 

13.24.2. The Board may, subject to clause 13.25.1, assign a new patient to the Contractor when it has closed its list of patients if –

 

(a) the assessment panel has determined under paragraph 35(7) of Schedule 6 to the Regulations that patients may be assigned to the Contractor, and that determination has not been overturned either by a determination of the Secretary of State under paragraph 36(13) of Schedule 6 to the Regulations or (where

applicable) by a court; and

 

(b) the Board has entered into discussions with the Contractor regarding the assignment of a patient if such discussions are required under clause 13.28.

 

13.25.1. In making an assignment to the Contractor under clauses 13.23.1 to 13.24.2, the Board must have regard to-

 

(a) the wishes and circumstances of the patient to be assigned;

 

(b) the distance between the patient’s place of residence and the Contractor’s practice premises;

 

(c) any request made by any contractor to remove the patient from its list of patients within the preceding period of 6 months starting on the date on which the application for assignment is received by the Board;

 

(d) whether, during the preceding period of 6 months starting on the date on which the application for assignment is received by the Board, the patient has been removed from a list of patients on the grounds referred to in-

 

(i) clause 13.10 (removal from the list at the request of the contractor),

 

(ii) clause 13.11 (removal from the list of patients who are violent), or (iii) the equivalent provisions to those clauses in relation to arrangements made under section 83(2) of the 2006 Act or under section 92 arrangements;

 

(e) in a case to which clause (d)(ii) (or the equivalent provisions mentioned in clause (d)(iii)) applies, whether the Contractor has appropriate facilities to deal with such patients; and

 

(f) such other matters as the Board considers relevant”

 

 

8.3           The first step in this process is that the patient is required to approach the practice to apply to be admitted to the list, and the practice is required to make the initial decision.  NHS England has no power to impose a patient on a practice unless the patient has first applied and been refused admission to the practice (either on a permanent basis or as a temporary patient).

 

8.4           If the practice list is closed there are only very limited circumstances in which NHS England are entitled to require a practice to take on a new patient.  The scheme for requiring admission of a patient to a closed list is looked at in detail in the section of this guide relating to closed practice lists. 

 

8.5           If the practice list is open, NHS England has a discretion to decide whether to require a GMS contracting practice to accept a patient onto its list or to accept a patient as a temporary resident.  The decision is generally made on paper by NHS England officials.  In making that decision the terms of the contract (as mandated by the GMS Regulations) require NHS England to take account of the following factors:

 

a)      The wishes and circumstances of the patient to be assigned.  The “wishes” of the patient to be admitted to the practice list are a material factor but they are not conclusive.   NHS England is also required to take account of the “circumstances of the patient”, which in practice must mean such of the circumstances as are known to NHS England and the GMS contractor.  There can be no duty on the patient to disclose all of their personal circumstances but clearly NHS England can only take account of circumstances that are known;

 

b)      The distance between the patient’s place of residence and the contractor’s practice premises.   The usual significance of this will be that the nearer the patient lives to the practice premises (or one of the practice premises), the stronger case can be made for the patient being admitted to that particular practice;

 

c)       Any request made by any contractor to remove the patient from its list of patients within the preceding period of 6 months starting on the date on which the application for assignment is received by the Board.  It is a relevant factor as to whether the practice has asked NHS England to remove the patient from the list within the previous 6 months and the circumstances which led to that request being made (whether it was granted or not).  The patient may be applying to be re-admitted to the list after NHS England agreed to remove the patient from the list.  Alternatively it is possible that the request was refused but that the patient had been removed from the practice list for a different reason and was now seeking to rejoin the list;

 

d)      The wording under sub-paragraph (d) requires NHS England to take into account whether, during the preceding period of 6 months starting on the date on which the application for assignment is received by the Board, the patient has been removed from the list of patients of any NHS GP practice:

 

                               i.         at the request of the contractor; or

                             ii.         because the patient had been violent;

 

e)      Sub-paragraph (e) requires NHS England to take into account whether, in a case where the patient has been removed from the list of patients of any NHS GP practice because the patient had been violent, the Contractor has appropriate facilities to deal with such patients; and

 

f)        NHS England is required to take such other matters into account as NHS England considers relevant.

 

8.6           There is no provision in the rules for an oral hearing, but NHS England is a public body making a decision which potentially affects the article 8 rights of the patient.  It would be required to follow a fair process in reaching the decision.  The procedural requirements of this decision have not been tested in the courts but are is likely to require:

 

a)      giving the person the opportunity to explain why he or she wishes to be included on the practice list;

 

b)      giving the practice the opportunity to explain why the person has been refused admission to the list; and

 

c)       taking reasonable steps to consider any other relevant information provided by the patient; and

 

d)      Although this is not expressly stated in the Regulations, it seems highly likely that a fair decision could only be given by NHS England if reasons are given for the decision.  Those reasons should explain how the decision maker has taken account of the various factors set out above and the weight given to each factor.  Some weight should be given by the decision maker to every factor because each factor is one which is required to be included by the GMS Regulations.  However, provided some weight is attached to each factor, the decision maker is entitled to exercise a wide margin of discretionary decision making in reaching the view as to which factor or factors are more important than other factors in the particular circumstances of each case.

 

8.7           There is no appeal provided within the GMS or PMS Regulations by either the patient or the practice against the decision of NHS England to order or not to order a patient to be admitted to a GP practice list.  The patient would have the right to challenge the decision by way of Judicial Review if the patient considered that the decision was made unlawfully.  However this would not be an appeal on the merits because the relevant Regulations make NHS England the discretionary decision making body.  It could only be a challenge asserting that the decision was made in an unlawful way or was an irrational decision. 

 

8.8           If NHS England decides in favour of the patient, if the practice still disagrees with the decision it has 2 options.  It may have the right to exercise its rights to remove a patient from the list.  Removal of patients from the practice list is considered below.  Secondly, if the practice believed that the decision had been taken on an improper basis (as opposed to a decision on the merits with which they disagreed) it may be possible for the practice to refer the matter to the NHSLA under the dispute resolution process.  The details of the dispute resolution process are considered elsewhere in this guide.  However the NHSLA will recognise that decision making about this matter is given to NHS England and accordingly it will only look to see whether the decision has been properly taken by NHS England.  The NHSLA ought not to attempt to reconsider the decision on its merits but only ask itself whether NHS England have reached a proper decision.  However the patient would remain on the practice list and thus must be provided with general practice services until (at least) the NHSLA have reached a decision.

 

9               Removal of patients from as GMS practice list.

 

9.1           The removal of patients from the lists of GP practices is a hugely contentious area and has been the subject of a report by the Parliamentary and Health Service Ombudsman.  It is the subject of a specific paragraph in the GMC Code of Conduct and guidance has been issued on the subject by the Department of Health, the Medical Protection Society and the BMA.  There can be particularly difficult issues arising from violent patients or patients whose family members are violent.  It is thus an area where GP practices need to tread carefully but where they do occasionally need to act to preserve the working environment (and sometimes the sanity) of GPs, their staff and other patients.

 

9.2           The GMC’s Good Medical Practice provides:

 

“62.  You should end a professional relationship with a patient only when the breakdown of trust between you and the patient means you cannot provide good clinical care to the patient”

 

9.3           The GMC has published guidance about this area of practice.  It provides:

 

Things to consider

 

3. In rare circumstances, the trust between you and a patient may break down, for example, if the patient has:

 

·       been violent, threatening or abusive to you or a colleague

·       stolen from you or the premises

·       persistently acted inconsiderately or unreasonably

·       made a sexual advance to you.

 

4. You should not end a professional relationship with a patient solely because of a complaint the patient has made about you or your team, or because of the resource implications of the patient’s care or treatment. 

 

Before you end the relationship

 

5. Before you end a professional relationship with a patient you should:
 

a. warn the patient that you are considering ending the relationship

 

b. do what you can to restore the professional relationship

 

c. explore alternatives to ending the professional relationship

 

d. discuss the situation with an experienced colleague or your employer or contracting body 

 

and you must be satisfied that your reason for wanting to end the relationship is fair and does not discriminate against the patient (see paragraph 59 of Good medical practice).

 

When you’ve made a decision to end the relationship

 

6. If you decide to end your professional relationship with a patient you must:

 

a. make sure the patient is told of your decision to end the professional relationship, and your reasons for doing so; where practical, the patient should be told in writing

 

b. follow relevant guidance and regulations

 

c. record your decision to end the professional relationship – information recorded in the patient’s records must be factual and objective, and should not include anything that could unfairly prejudice the patient’s future treatment

 

d. make sure arrangements are made promptly for the continuing care of the patient, and you must pass on the patient’s records without delay

 

e. be prepared to justify your decision”

 

9.4           Thus a doctor will act in breach of the professional standards set by the GMC by ending a relationship with a patient unless 2 things are present, namely:

 

a)      There must be a breakdown of trust between the doctor and the patient; and

 

b)      The doctor must be unable to provide good clinical care to the patient as a result of that breakdown.


9.5           Asking NHS England to remove a patient from a practice list because of one or more complaints is a breach of the professional standards unless the number and/or nature of the complaints means that there has been a breakdown of trust between the patient and the doctor.  It is also clear that a doctor must work at a relationship with a patient and cannot give at the first sign of difficulties. A warning must usually be given and then the doctor must attempt to make the relationship work before concluding that it is the interests of both parties for medical care for the patient to be provided by someone else.

 

9.6           There are however a number of special situations in which a patient can be removed from a practice list without there being a breakdown of trust between the doctor and the patient.  These are examined next before looking at the more difficult area of removal at the request of the doctor on discretionary grounds.

 

9.7           End of a period of temporary residence:  A patient can be removed by a GP practice from a practice list as a temporary resident by the GP practice serving notice on the patient at any time after the period when the practice agreed the patient would be entitled to be a temporary resident or, if no period was agreed, at any time after the patient has been a temporary resident for 3 months (see clause 13.6.3 of the standard GMS contract).  No further reasons need to be given to justify the removal of such a patient from the practice list.

 

9.8           The death of a registered patient:  If NHS England are informed that a patient has died, NHS England have a duty to remove the patient from the practice list (see clause 13.4.1 of the standard GMS Contract).  A GP may not, of course, necessarily be aware that a patient on its practice list has died but where the practice learns that a registered patient has died it is plain that the person cannot continue to be a patient of the practice.  There is no specific duty placed on a contractor to inform NHS England that a patient has died but it seems plain that a contactor should not continue to include the name of a patient on the practice list where the contractor is aware that the patient has died.  NHS practices get paid in accordance with the size of the patient list and maintaining a list with patients who are known to have died because that would lead to payments being made to the contractor for services to one or more named patients that, by definition, cannot be delivered.  It would therefore be fraudulent activity by a contractor to keep the name of a patient on the practice list knowing that the patient had died.  Clause 2.1.4 of the standard GMS contract requires all contractors to act “reasonably and in good faith”.  As well as being potentially fraudulent, maintaining the name of a knowingly dead patient on a practice list would probably amount to a breach of this clause and thus jeopardise the continuing GMS contract.  It is therefore important that contractors notify NHS England as soon as is reasonably practical where they learn that a practice patient has died. 

 

9.9           The patient who asks to be removed from a practice list:  A patient has the right to be removed from the list of an NHS practice at any time.  It is not necessary for the patient to give any reason or explain why the patient wishes to be removed from the practice list.  Clause 13.9.1 of the standard GMS contract provides “the Contractor shall notify the Board in writing of any request for removal from its list of patients received from a registered patient”.  If NHS England receives notification from the practice that the patient wishes to leave the list of a practice or receives that notification directly from the patient, NHS England (which holds the list of patients for each NHS practice) have a duty to remove the name of the patient from the list (see clause 13.9.2).

 

9.10        The patient who registers with another practice:  NHS England are obliged to remove a patient from a practice list of the patient is registered with another GP practice in the UK.  There is no discretion to exercise in this instance because, as noted above, a patient can only be registered with one NHS GP practice at a time.  Clause 13.12 of the Standard GMS Contract explains the position as follows:

 

“13.12.1The Board must remove a patient from the Contractor’s list of patients if –

 

(a)  that patient has subsequently been registered with another provider of essential services (or their equivalent) within England; or

 

(b)  it has received notice from a Local Health Board, a Health Board or a Health and Social Services Board that the patient has subsequently been registered with a provider of essential services (or their equivalent) outside England”

 

9.11        The removal of the patient from the practice list takes effect on the date on which notification of acceptance by the new provider is received by NHS England or, with the consent of the NHS England, on such other date as has been agreed between the Contractor and the new provider.

 

9.12        Patients who move out of the practice area:  The general approach of the GMS and PMS Regulations is that patients should be registered with a practice which is within the practice area and thus local to where they live.  However GP practice is entitled to keep a patient on its practice list even if the patient moves out of the practice area.   Patients who move house to live just out of the practice area may well not wish to register with a new NHS practice (either at all or for an extended period).  In those circumstances the name of the patient will continue to appear on a practice list. 

 

9.13        The GMS contract provides that the onus is on NHS England to take action if it becomes aware that a patient has moved out of a practice area.  It is difficult to envisage the circumstances in which NHS England would become aware that a patient had moved house unless the patient sought to register with a new NHS practice.  However clause 13.13 regulates this situation as follows:

 

“13.13.1. Subject to clause 13.13.2, where the Board is satisfied that a person on the Contractor’s list of patients no longer resides in that Contractor’s practice area, the Board shall-

 

(a) inform that patient and the Contractor that the Contractor is no longer obliged to visit and treat the patient;

 

(b) advise the patient in writing either to obtain the Contractor’s agreement to the continued inclusion of the patient on its list of patients or to apply for registration with another provider of essential services (or their equivalent); and

 

(c) inform the patient that if, after the expiration of 30 days from the date of the advice referred to in sub-clause (b), he has not acted in accordance with the advice and informed it accordingly, the Board will remove him from the Contractor’s list of patients.

 

13.13.2. If, at the expiration of the period of 30 days referred to in clause 13.13.1(c), the Board has not been notified of the action taken, it shall remove the patient from the Contractor’s list of patients and inform him and the Contractor accordingly.

 

13.13.3. Where the address of a patient who is on the Contractor’s list is no longer known to the Board, the Board shall-

 

(a) give to the Contractor notice in writing that it intends, at the end of the period of six months commencing with the date of the notice, to remove the patient from the Contractor’s list of patients; and

 

(b) at the end of that period, remove the patient from the Contractor’s list of patients unless, within that period, the Contractor satisfies the Board that it is still responsible for providing essential services to that patient”

 

9.14        Patients who are sentenced to more than 2 years in prison:  General medical services for prisoners are commissioned by NHS England directly with providers who work in prisons.  NHS England had a duty to remove any patient from the list of a practice if they are informed that the patient has been sentenced to a term of imprisonment of more than 2 years[19].  The prisoner would, of course, be unable to access the services of the GP practice whilst in prison and thus retaining the name on the practice list would mean that the practice were being paid for services for a person who could not access those services.  Accordingly the NHS would be funding the same services twice if a prisoner were to be retained on the list of a GP practice. The period of 2 years appears to have been chosen to prevent the prisoner being removed from a practice list if the sentence is short and thus the individual can be expected to return to the community in a short period.

 

9.15        A practice will not necessarily learn that a patient on its list has been sent to prison and, even if it does learn this information, may well not be aware of the sentence that the prisoner was given.  If the practice is aware that a patient has been sentenced to a term of imprisonment there is no specific duty on the practice to inform NHS England of this fact and thus have the patient’s name removed from the list.  However the GP practice under a GMS contract will have a duty to act reasonably and in good faith (see clause 2.1.4 of the Standard Contract).  It may well be a breach of that duty to take a decision not to tell NHS England that a patient on the practice list was sentenced to a long term of imprisonment.

 

9.16        Patients who join HM Forces:  General medical services for members of HM forces are commissioned by NHS England directly with providers who work with soldiers, sailors and members of the RAF.  NHS England had a duty to remove any patient from the list of a practice if they are informed that the patient has joined HM Forces [20] .  Neither the Regulations not do not specify that this provision only applies to permanent members of the forces and not reservists.   However the logic of the provision only applies to full time members of the forces as opposed to those who retain their civilian role for most of the year (and can thus have a need for general medical services at home) and only serve for limited times in the forces.

 

9.17        A practice will probably learn from the forces GP services (if not otherwise) that a patient on its list has joined the forces.  If the practice is aware that a patient has joined the forces on a full time basis there is no specific duty on the practice to inform NHS England of this fact and thus have the patient’s name removed from the list.  However the GP practice under a GMS contract will have a duty to act reasonably and in good faith (see clause 2.1.4 of the Standard Contract).  It may well be a breach of that duty to take a decision not to tell NHS England that a patient on the practice list has joined HM forces on a full time basis.

 

9.18        Patients who are abroad for more than 3 months:  NHS England had a duty (i.e. there is no discretion) to remove any patient from the list of a practice if they are informed that the patient has “been absent from the United Kingdom for a period of more than three months”.  Unlike the situation where a patient has been sentenced to a term of imprisonment or joined HM Forces, a person who is absent from the United Kingdom for a period of more than three months is not necessarily being provided with NHS funded GP services by another route.  The GP practice therefore has to exercise a degree of judgment in deciding whether to apply to NHS England to remove such a patient from the list.  Neither the GMS nor the PMS contract places a duty on the GP practice to inform NHS England that a patient has been absent from the United Kingdom for a period of more than three months, and so the practice will not act in breach of its contract by taking the decision not to do so.  The test for the practice ought to be this person has retained a sufficient connection to the UK to continue to be habitually resident here and thus can justify remaining on the practice list.  Hence, for example, it would plainly be inappropriate to apply to remove an elderly person from the practice list who spends 3 months across the winter in Spain but 9 months of the year in the UK.  Equally a patient whose family comes from the Indian sub-continent who travels to, for example, Bangladesh for an extended visit of 4 months plainly should not be removed.  But a GP practice ought not to be paid for someone who has substantially moved to another country. 

 

9.19        Removal of patient who have registered as temporary patients elsewhere and remained on a longer term basis:  Patients can commence registration with a practice as a temporary resident and then find themselves staying in the location for a longer period than anticipated.  This can particularly happen with elderly residents who move to live with a relative or in a care home and then decide not to return to their previous home.  Normally in such cases the patient would apply to convert their temporary status to a permanent status with the new GP practice on the basis that they now “live” in the area of the new practice.  However the patient is still on the list of their former practice.  There is therefore a residual power for NHS England to de-register a patient if they learn that they have moved permanently elsewhere.  The onus to take action here is on NHS England and not on the contactor.

 

9.20        The provision is in clause 13.15 which is self-explanatory and provides as follows:

 

“13.15.1  The Board shall remove from the Contractor’s list of patients a patient who has been accepted as a temporary resident by another contractor or other provider of essential services (or their equivalent) where it is satisfied, after due inquiry-

 

(a) that the patient’s stay in the place of temporary residence has exceeded three months; and

 

(b) that the patient has not returned to his normal place of residence or any other place within the Contractor’s practice area.

 

13.15.2. The Board shall notify the Contractor and, where practicable, the patient, of a removal under clause 13.15.1.

 

13.15.3. A notification to the patient under clause 13.15.2 shall inform him of-

 

(a) his entitlement to make arrangements for the provision to him of essential services (or their equivalent), including by the Contractor by whom he has been treated as a temporary resident; and

 

(b) the name, postal and email address of the Board”

 

9.21        Addition and removal of the names of patients at a school:  GP practices can accept registration of all of the residents of a school at which pupils and staff live.  This is particularly the case for residential schools where the students have particular medical needs, including learning difficulties.  However there will inevitably be a turnover of both students and staff at such institutions.  The GMS contract therefore has the following provisions to ensure that everyone on a practice list is currently living at the school:

 

“13.16.1. Where the Contractor provides essential services under the Contract to persons on the grounds that they are pupils at, or staff or residents of, a school, the Board shall remove from the Contractor’s list of patients any such persons who do not appear on particulars of persons who are pupils at, or staff or residents of, that school provided by that school.

 

13.16.2. Where the Board has made a request to a school to provide the particulars mentioned in clause 13.16.1 and has not received them, it shall consult the Contractor as to whether it should remove from its list of patients any persons appearing on that list as pupils at, or staff or residents of, that school”

 

9.22        There is an equivalent provision in paragraph 26 of Schedule 5 to the PMS Regulations.

 

10            Removal of violent patients from GP Practice lists.

 

10.1        There are special rules for GP practices covering the removal of violent patients from a general practice list.  This issue was raised in Heath Service Circular 2001/001 “Tackling Violent towards GPs and their staff”.  The Guidance required local NHS commissioners (at that point Health Authorities) to develop a “Local Development Scheme” to provide access to GP services to patients who are violent and are removed from lists of general practices.   There are a variety of schemes around the country which set up alternative arrangements, staffed by GPs who provide services in secure settings.

 

10.2        The GMS contract [21]  includes the following term permitting the contractor to notify NHS England that it wishes to remove a violent patient with immediate effect[22].  This is now set out in clause 13.11.1 which provides:

 

“Where the Contractor wishes a patient to be removed from its list of patients with immediate effect on the grounds that-

 

(a) the patient has committed an act of violence against any of the persons specified in clause 13.11.2 or behaved in such a way that any such person has feared for his safety; and

 

(b) it has reported the incident to the police,

 

the Contractor shall notify the Board in accordance with clause 13.11.3”

 

 

10.3        The persons specified in clause 13.11.2 against whom the patient has committed the act of violence are any of the following:

 

The persons referred to in sub-paragraph (1) are—

 

(a)     the contractor where it is an individual medical practitioner;

 

(b)     in the case of a contract with two or more individuals practising in partnership, a partner in that partnership;

 

(c)     in the case of a contract with a company, both a legal and beneficial owner of shares in that company;

 

(d)     a member of the contractor's staff;

 

(e)     a person engaged by the contractor to perform or assist in the performance of services under the contract; or

 

(f)     any other person present—

 

(i)     on the practice premises, or

 

(ii)     in the place where services were provided to the patient under the contract”

 

10.4        The notification can be given to NHS England orally or in writing but, if given orally, must be confirmed in writing within 7 days.  A faxed message does not count as a written message but it is unclear if an email counts as a written message.  There does not appear to be any reason why an email should not be sufficient because there will be an audit trail relating to the message at both ends.

 

10.5        There is no precise definition in the contract of the phrase “committed an act of violence”.   However the World Health Organisation published a report on Violence and Health in 2002[23].  This defines violence as follows:

 

“The intentional use of physical force or power, threatened or actual, against oneself, another person, or against a group or community, that either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment or deprivation”

 

10.6        This seems an appropriate test against which to judge the act complained about.  It can include a threat of violence if the threat, if carried out, would result in injury.  The alternative formulation of conduct which can lead to a patient being removed instantly from a practice list is that the patient must have “behaved in such a way that any such person has feared for his safety”.  This test has a potentially wider scope because it focuses on the reaction of the person to the actions of the patient and not just on the actions of the patient himself or herself. 

 

10.7        However in order to come within the terms of the GMS contract the incident must be reported to the police.  If the incident, however frightening the incident may have seemed to staff at the time, has not been reported to the police then the GP practice cannot bring itself within the terms of the immediate removal provisions under the contract.   The trigger however is a report to the police and not any form of defined action by the police.  It is therefore not necessary to show that the police attended, arrested the patient or even took the matter in any way seriously.  All that is necessary to come within the terms of the contract is for a report to have been made to the police following an incident.   It would therefore be sensible for the contractor to keep a record of that report and ideally to obtain a crime report number from the police.  The requirement that the incident is reported to the police suggests that the incident ought to be considered by the GP practice of sufficient seriousness that the contactor considered that a criminal offence was or may have been committed.  The lowest level of offence is likely to be section 5 of the Public Order Act 1986 which provides:

 

A person is guilty of an offence if he—

 

(a)     uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

 

(b)     displays any writing, sign or other visible representation which is threatening, abusive or insulting,

 

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby”

 

10.8        It seems highly likely that any action by a patient that comes within clause 13.11.1 will, at the least, amount to a potential offence under section 5 of the Public Order Act 1986 and thus justify a report by a GP to the police. 

 

10.9        Clause 13.11.15 then provides that a removal requested in accordance with clause 13.11.1 shall take effect at the time the Contractor makes the telephone call to the Board, or sends or delivers the notification to the Board.  It follows that the duty on the contractor to provide continuing medical care to the patient ceases immediately the contractor has made a report to NHS England of violence and made a “request” for the patient to be removed from the practice list.  If the patient was in need of emergency care then the contractor would have a duty to continue to provide emergency care to the patient in the same way as emergency care is required for any other individual, whether a registered patient or not.  However there is no contractual duty on the GP practice to take steps to ensure that the violent patient is able to access alternative primary medical services before the patient is removed from the list.

 

10.10     The violence or threats must come from the patient themselves.  A patient cannot be removed under clause 13.11 because a friend or relative has used or threatened violence to the GP or anyone else in the surgery.  However if the violence comes from a person other than the patient the GP practice may report a potential offence to the police under section 119 of the Criminal Justice and Immigration Act 2008 which provides:

 

A person commits an offence if—

  

(a)     the person causes, without reasonable excuse and while on NHS premises, a nuisance or disturbance to an NHS staff member who is working there or is otherwise there in connection with work,

  

(b)     the person refuses, without reasonable excuse, to leave the NHS premises when asked to do so by a constable or an NHS staff member, and

  

(c)     the person is not on the NHS premises for the purpose of obtaining medical advice, treatment or care for himself or herself

 

This provision could enable the police to attend the surgery in order to arrest and hence remove the offending relative or friend. 

 

10.11     Violence or threats of violence by a relative or friend of the patient may also be a good reason for the GP practice to seek the removal of the patient from the practice list under clause 13.10.  However that removal will not take place immediately and the GP practice will continue to have duties to provide medical care to the patient until the removal takes effect.

 

10.12     It is difficult to see any legal basis other than an action in defamation upon which a patient can challenge the decision of a GP practice to remove the patient from the list, particularly if (as is usually the case) NHS England have a local scheme for offering alternative primary care services to patients who have been ejected from practice lists due to violence or threats of violence.  However a patient who disputes that he or she has been violent to a GP or a member of his or her staff could make a complaint to the GMC about the GP alleging a breach of paragraph 62 of Good Medical Practice (see above).  At this point the conduct of the GP will be judged against the GMC Code and the relevant guidance as opposed to being purely judged under the terms of the relevant practice contract.

 

10.13     The patient who has been removed for violent conduct should generally be informed of the reasons for his or her removal.  Clause 13.11.6 provides:

 

“Where, pursuant to clauses 13.11.1 to 13.11.5 the Contractor has notified the Board that it wishes to have a patient removed from its list of patients, it shall inform the patient concerned unless-

 

(a) it is not reasonably practicable for it to do so; or

 

(b) it has reasonable grounds for believing that to do so would be harmful to the physical or mental health of the patient or would put at risk the safety of one or more of the persons specified in clause 13.11.2”

 

10.14     The contract permits the patient to be informed orally or in writing.  However there is an exemption to notification if the contractor has reasonable grounds for believing that to do so would be harmful to the physical or mental health of the patient or would put at risk the safety of one or more of the relevant persons.  It is difficult to see how a contractor would be acting properly if it failed to inform a patient because the inevitable result would appear to be that the patient will still believe that he or she is on the surgery list and hence will present seeking treatment at some point in the future.

 

11            Discretionary removal of patients from a GP practice list.

 

11.1        There are, of course, numerous reasons why a GP practice may wish to remove a patient from a practice list.  The BMA Guidance makes it clear that this should be an exceptional and rare event. 

 

11.2        Prohibited reasons:  Both GMS and PMS contracts are required to contain terms which prevent a GP practice applying to NHS England to remove a patient for any of the following reasons:

 

·      race

·      gender

·      social class

·      age

·      religion

·      sexual orientation

·      appearance

·      disability

·      medical condition

 

11.3        Save in the case of violent patients, NHS GP practices do not have the right to remove patients from their own practice list but they have the right to apply to NHS England to have a patient’s name removed from the practice list.  In cases other than violent patients, the decision making process is governed by clauses in the contract which are mandated by paragraph 20 of Schedule 6 to the GMS Regulations and a like provision in the PMS Regulations. 

 

11.4        The approach of the GMS Regulations is generally to permit a contractor to require NHS England to remove a patient from the practice list provided:

 

a)      The contactor has a good reason for wanting to remove the patient (the reason cannot be a prohibited reason);

 

b)      (Save in a specified set of cases) the patient has been warned about the conduct which led to the decision and has failed to heed the warning; and

 

c)       The patient is generally entitled to know the reason that the GP wants to remove the patient from the practice list.

 

11.5        However a practice will continue to have clinical responsibility for a patient until the removal of the patient comes into effect in accordance with the contractual scheme described below.  The practice has a full duty to provide services to the patient until the removal takes effect.

 

11.6        The general right for a practice to be entitled to apply to NHS England to remove a patient from the practice list is set out in clause 13.10.1 of the standard GMS Contract [24]  which provides:

 

“Subject to clauses 13.11.1 to 13.11.8, where the Contractor has reasonable grounds for wishing a patient to be removed from its list of patients which do not relate to the patient’s race, gender, social class, age, religion, sexual orientation, appearance, disability or medical condition, the Contractor shall-

 

(a) notify the Board in writing that it wishes to have the patient removed; and

 

(b) subject to clause 13.10.2, notify the patient in writing of its specific reasons for requesting removal”

 

11.7        The warning for the patient:  The first stage in the process of removing a patient from a GP practice list is that a warning should has to be given to the patient about the patient’s conduct which is causing the practice concern and which may lead to the practice seeking to have the patient removed.  Clause 13.10.3 of the standard GMS Contract which provides:

 

“Except in the circumstances specified in clause 13.10.4, the Contractor may only request a removal under clause 13.10.1, if, within the period of 12 months prior to the date of its request to the Board, it has warned the patient that he is at risk of removal and explained to him the reasons for this”

 

11.8        There are a limited number of exceptions to the need to warn the patient before a request is made to NHS England to remove the patient from the practice list.  The exceptions are set out in clause 13.10.4 as follows: 

 

a)      the reason for removal relates to a change of address; or

 

b)      the Contractor has reasonable grounds for believing that the issue of such a warning would be harmful to the physical or mental health of the patient or would put at risk the safety of one or more of the persons specified in clause 13.10.5; or

 

c)       it is, in the opinion of the Contractor, not otherwise reasonable or practical for a warning to be given.

 

11.9        The list of persons who are referred to in the above exemption (at sub-paragraph b) whose health or safety can be claimed as a reason not to warn the patient are set out in clause 13.10.5 as follows:

 

“(a) if the Contractor is an individual medical practitioner, the Contractor;

 

(b) if the Contractor is a partnership, a partner in the partnership;

 

(c) if the Contractor is a company, both a legal and beneficial owner of shares in that company;

 

(d) a member of the Contractor’s staff;

 

(e) a person engaged by the Contractor to perform or assist in the performance of services under the Contract; or

 

(f) any other person present on the practice premises or in the place where services are being provided to the patient under the Contract”

 

11.10     Once a warning has been given and the GP practice reaches the view that it has not been heeded or if the contractor considers that it is entitled to dispense with a warning in accordance with the above provisions, clause 13.10.1 provides that the contractor should write to NHS England saying that it “wishes” to remove the patient.   At the same time the GP practice is required to notify the patient of the specific reasons for requesting removal.  Those reasons cannot be any of the prohibited reasons namely reasons connected to the patient’s race, gender, social class, age, religion, sexual orientation, appearance, disability or medical condition. Subject to these specific limitations, there are a wide range of potential reasons why a practice could seek to have a patient removed from its list.  The most obvious reasons are that the patient has moved out of the practice area or that the doctors do not feel able to continue to provide services to the patient.   Some guidance on reasons is provided in clause 13.10.2 which provides:

 

“Where, in the reasonable opinion of the Contractor, the circumstances of the removal are such that it is not appropriate for a more specific reason to be given, and there has been an irrevocable breakdown in the relationship between the patient and the Contractor, the reason given under clause 13.10.1 may consist of a statement that there has been such a breakdown”

 

11.11     This language echoes the grounds on which a doctor can terminate a relationship with a patient in the GMC Code.  The NHS practice contract gives the patient no right to object to the proposed removal or to challenge the factual basis of the decision to remove him or her from the practice list.  The provisions in the contract treat this mater as being solely to be decided between the practice and NHS England.  Neither the GMS Regulations nor the GMS contract gives any legal right to the patient to object to being removed from a practice list.

 

11.12     Where notification is given to NHS England that a practice wishes to remove a patient from its list there is no provision for a separate decision to be made by NHS England as to whether the practice has properly made out a case to have the patient removed.  The next step is that the removal takes effect automatically on the date when the patient is registered with another practice or 8 days after the notice is sent to NHS England, whichever is the sooner unless the patient is being treated at intervals of less than seven days.  If the patient is in receipt of medical treatment at less than 7 day intervals, the removal does not take effect until the eighth day after the Trust receives notification from the Contractor that the person no longer needs such treatment, or on the date on which the person is registered with another provider of essential services, whichever is the sooner[25].

 

11.13     This scheme seeks to preserve the balance between the interests of the contractor who wishes to have the patient removed from the practice list and the interests of the patient who may have a need for on-going medical treatment.  It however has the potential to cause a difficulty in the case of a patient who has a chronic condition which will require treatment at less than 7 days intervals indefinitely.  The patient is under no obligation to seek out a new GP practice and cannot be registered with a new practice unless he or she makes an application to join the list of that practice.  If the patient prefers to stay with their existing practice then the patient cannot be compelled to join another practice.  The contractor continues to have a full duty to provide medical treatment to the patient until the removal notice takes effect, and cannot reduce the level of input for the patient because a removal has been requested.  However in such circumstances the removal notice cannot take effect unless the contractor can certify that the person no longer needs such treatment.  In such a case neither of the 2 conditions in clause 13.10.9 will arise and the notice may be incapable of taking effect and so the GP practice will continue to have clinical responsibility for the patient.  The only option in such circumstances would appear to be mediation to attempt to agree a mutually agreed way forward.

 

11.14     The GP is a sub-contractor of NHS England’s statutory duty to make arrangements for patients to have access to primary care services, and accordingly any public law action by a patient would have to be against NHS England and not the GP practice.  However that could only be based on an overall alleged failure by NHS England to provide primary care services and so could be cured by NHS England offering to arrange for the patient to be registered at another practice or offering the GP services under arrangements for patients who are excluded from GP practices generally in an area.  It is therefore difficult if not impossible to see how a patient could construct a cause of public law action arising out of the decision of a GP practice to remove a patient from their list of registered patients.  The patient’s only remedies appear to be to sue in defamation or to complain to the GMC.

 

11.15     If the patient is removed from the practice list pursuant to this scheme, NHS England has a duty to write to both the patient and the contractor to inform them that the patient has been removed and the date of removal.  However NHS England does not need to explain the reasons for the patient’s removal since this will usually have already been explained by the contractor to the patient.

 

11.16     NHS England and the contracting GP are required to keep proper records relating to the removal of patients from a list of registered patients including, in the case of the GP practice, proper records of any warnings that have been in advance of any removal.

 

12            Closure and reopening of GP practice lists.

 

12.1        GP practices lists vary enormously but it is not in the interests of patients or doctors for a GP practice to have too many patients and not enough doctors.  A GP practice has a contractual and professional duty to deliver services of an acceptable quality for patients and this will not be possible if the GP practice does not have enough capacity.  Until 2004 a sole practice GP was only allowed to have 2,500 patients on his or her list, increasing to 3,500 if the GP was in a partnership.   There are no limits in force at present.

 

12.2        An NHS document on improving primary care access estimated demand as follows[26]:

 

Using data on average demand in England shows that a patient has a consultation with their Doctor 3.4 times per year.  This average will vary based on local patients’ needs and behaviours and the types of services provided, for example the availability of nurse-led or telephone appointments. 1,000 patients would require 3,400 appointments per year; divided by 52 weeks this would give 66 appointments per week per 1,000 patients on the registered list. In reality however, many GP practices have found that their patient population requires more appointments than this number”

 

12.3        One way of managing demand is for a GP practice to close its list to new patients.  However a closure is anticipated to be a strictly temporary measure whilst the GP practice takes the necessary steps to increase its capacity to deliver services to patient.  Lists are held by NHS England and not the individual practice and therefore the decision maker on any closure application is NHS England and not the GP practice.

 

12.4        The scheme [27]  under the GMS and PMS Regulations starts with an application by the Contractor to NHS England to close its list.  The Application must include the following details:

 

a)      the options which the Contractor has considered, rejected or implemented in an attempt to relieve the difficulties which the Contractor has encountered in respect of its open list and, if any of the options were implemented, the level of success in reducing or extinguishing such difficulties;

 

b)      any discussions between the Contractor and its patients and a summary of those discussions including whether in the opinion of those patients the list of patients should or should not be closed;

 

c)       any discussions between the Contractor and other contractors in the practice area and a summary of the opinion of the other contractors as to whether the list of patients should or should not be closed;

 

d)      the period of time during which the Contractor wishes its list of patients to be closed and that period must not be less than 3 months and not more than 12 months;

 

e)      any reasonable support from the Board which the Contractor considers would enable its list of patients to remain open or would enable the period of proposed closure to be minimised;

 

f)        any plans the Contractor may have to alleviate the difficulties mentioned in the Application during the period the list of patients may be closed in order for that list to reopen at the end of the proposed closure period without the existence of those difficulties; and

 

g)       any other information which the Contractor considers ought to be drawn to the attention of the Board.

 

12.5        NHS England must then enter into discussions with the practice, about what support it can provide or any changes that can be made, with both doing everything possible to keep the list open. The Local Medical Committee (“LMC”) may be invited at any stage during these discussions to attend any meetings that have been arranged. Also, NHS England may consult anyone who might be affected by the closure of the list, and if so, must provide the practice with a summary of any views expressed. NHS England must give the practice the opportunity to comment on all the information relating to the application before they make their decision. The practice may withdraw its application at any time before NHS England makes its decision. This must be made within 21 days from the date it received the application (or within a longer period if both parties agree). The decision will be either to:

 

a)      Approve the application and set the dates of closure and reopening of the list; or

 

b)      Reject the application.

 

12.6        A practice will not be able to make another application to close its list within 12 months of the date of this decision unless the application has been rejected (in which case different time limits) or there has been a change in circumstances affecting the ability of the practice to deliver services under its contract.

 

12.7        A decision by NHS England to give approval to an application to close a list of patients must be sent in writing to the practice as soon as possible. This should also be copied at the same time to others who were involved in this process such as the LMC and/or anyone affected by the list closure who was consulted.

 

12.8        The closure notice must include:

 

a)      The period of time the list will be closed, which must be either the period stated in the practice’s application, or a period agreed subsequently. In either case, this must be 3 months or over but cannot be longer then 12 months;

 

b)      The date the list will close; and

 

c)       The date the list will reopen (which may change should the practice and NHS England agree that the closure period will be extended or the list will reopen sooner).

 

12.9        A decision by a PCT to reject an application to close a list of patients must be sent in writing to the practice as soon as possible. This should also be copied at the same time to others who were involved in this process such as the LMC and/or anyone who was consulted.  A practice will not be able to make another application to close its list within 3 months of the date of a PCT’s decision to reject an application, or the date of any final determination in a dispute on this matter, whichever is the later. This time limit will not apply where there has been a change in circumstances affecting the ability of the practice to deliver services under its contract.

 

12.10     During a period of closure, a practice may apply to have this extended. The application must be made in writing at least 8 weeks in advance of the date the list will reopen.   The application to extend must include:

 

a)      any options the practice has considered, rejected or implemented to try to relieve the difficulties it has encountered during the closure period and, if any of these options were implemented, the level of success in reducing or eliminating these difficulties;

 

b)      the period of time during which the practice wishes its list to remain closed, which must not be more than 12 months;

 

c)       any reasonable support from NHS England which the practice considers would enable its list to reopen or would enable the period of proposed extension of closure to be minimised;

 

d)      details of any plans the practice may have to reduce or eliminate the difficulties mentioned in their application to extend the closure which would allow their list to reopen when this period elapses; and

 

e)      any other information which the practice considers necessary to bring to the attention of NHS England.

 

12.11     NHS England must acknowledge receipt of the application within 7 days of receiving it.  It must consider the application and may request any information from the practice to enable it to do so.  NHS England may enter into discussions with the practice, about what support it can provide or any changes that can be made, with both doing everything possible to enable the list to reopen.

 

12.12     Within 14 days of the receipt of the application to extend the closure period, NHS England must make a decision either to approve or reject it. Where NHS England approves an application to extend the closure period, it must notify the practice in writing as soon as possible.   A copy of the decision letter should be sent to others who were involved in discussions on the original list closure application.  This can include the LMC and/or anyone affected by the list closure who was consulted.

 

12.13     The extended closure notice must include:

 

a)      The period of time the list will be closed, which must be either the period stated in the practice’s application to extend the closure period, or a period agreed in writing between NHS England and the practice subsequently. In either case, this must be 3 months or over but not longer than 12 months;

 

b)      The date from when the closure period will be extended; and

 

c)       The date the list will reopen.

 

12.14     GP practices which disagree with decisions made by NHS England on patient list matters can invoke the NHS Disputes Resolution process by registering a dispute with the Family Health Appeal Unit of the NHSLA.



[1] There are limited exceptions to this approach, particularly for services for those suffering from Sexually Transmitted Diseases.  STI clinics can be accessed by patients without a referral from their GP.

[2] The same definition is in Regulation 2 of the PMS Regulations.

[3] The same provision is in Regulation 11(1)(c) of the PMS Regulations.

[4] The same provision is in Regulation 2 of the PMS Regulations.

[5] This provision is at paragraph 15 of Schedule 5 to the PMS Regulations.

[6] There can be subtle differences between the concepts of usual, ordinary and habitual residence but these are not relevant for present purposes.

[7] The wording of clause 13.6.3 is “Where the Contractor wishes to terminate its responsibility for a person accepted as a temporary resident before the end of three months or such shorter period for which it had agreed to accept him as a patient, the Contractor shall notify the patient either orally or in writing and its responsibility for that person shall cease 7 days after the date on which the notification was given”.  There ought to be a like provision in PMS contracts for temporary patients as a result of the wording of paragraph 15 of Schedule 5 to the PMS Regulations.

[8] See Fox v Stirk [1970] 2 QB 463 at 475E.  See also Lord Scarman in R v Barnet LBC ex parte Shah [1983] AC 309 at 342F.

[10] See paragraph 2.3 of the Guidance Note published by the Department of Health at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/216467/dh_133707.pdf

[11] See paragraph 15(5) of Schedule 6 to the GMS Regulations and clause 13.5.5 of the standard GMS contract.

[12] See paragraph 19(1) of Schedule 6 to the GMS Regulations and clause 13.9.1 of the standard GMS contract.

[13] See paragraph 15(3) of Schedule 6 to the GMS Regulations and clause 13.5.3 of the standard GMS contract.

[14] See paragraph 15(4) of Schedule 6 to the GMS Regulations and clause 13.5.4 of the standard GMS contract

[15] See the definitions in Regulation 2 of the GMS Regulations.

[16] This clause is required by paragraph 15(2) of Schedule 6 to the GMS Regulations.

[17] See the definition in Regulation 2 of the GMS Regulations.

[18] The relevant provision is in paragraph 31 of Schedule 5 to the PMS Regulations.

[19] See clause 13.14.1 of the standard GMS contract as required by paragraph 25 of Schedule 6 to the GMS Regulations.  There is a like provision in 24 of Schedule 5 to the PMS Regulations.

[20] See clause 13.14.1 of the standard GMS contract as required by paragraph 25 of Schedule 6 to the GMS Regulations.  There is a like provision in 24 of Schedule 5 to the PMS Regulations.

[21] There should be like provisions included in every PMS contract.

[22] See paragraph 21 of Schedule 6 to the GMS Regulations.

[24] The same scheme is set out in paragraph 19 of Schedule 5 to the PMS Regulations.

[25] The wording of the relevant clauses is “13.10.8. A removal requested in accordance with clause 13.10.1 shall, subject to clause 13.10.9, take effect from the date on which the person is registered with another provider of essential services, or the eighth day after the Board receives the notice, whichever is the sooner. 13.10.9. Where, on the date on which the removal would take effect under clause 13.10.8, the Contractor is treating the patient at intervals of less than seven days, the Contractor shall inform the Board in writing of that fact and the removal shall take effect on the eighth day after the Trust receives notification from the Contractor that the person no longer needs such treatment, or on the date on which the person is registered with another provider of essential services, whichever is the sooner”

[26] See http://www.productiveprimarycare.co.uk/Data/Sites/1/dh_accessguide.pdf

[27] This description is taken from the relevant Guidance.

David Lock QC

David Lock QC is a barrister at the Landmark Chambers.

180 Fleet Street
London, EC4A 2HG
DX 1042 (London)

He was called to the Bar in 1985 and was appointed Queens Counsel in 2011.

David Lock QC is Head of the Administrative & Public Law Group and the Judicial Review & high Court Challenges Group at No5 Chambers. - See more at: http://www.no5.com/barristers/barrister-details/137-david-lock-qc/#sthash.PcnGl1Eh.dpuf

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