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Chapter 1: Background

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This chapter has been updated in June 2014

 

Chapter 1:  Background

 

1.              The purpose of this website is to attempt to bring together a large number of strands of law that affect General Practice within the NHS in England.  According to the Royal College of General Practitioners (“The RCGP”) there are about 48,000 GPs working in the UK.  Almost all GPs work in the National Health Service, with the majority working in England[1]

 

2.              GPs working in the NHS in England have a myriad of legal obligations and work within a complex and confusing system.  The primary legal obligation of all GPs is towards their patients but, in order to deliver on their duties to patients, GPs need to operate within the wider NHS.  GPs also have roles as commissioners of NHS services through their membership of clinical commissioning groups and are partners, employers and are data controllers under the Data Protection Act 1998.  This website (which is a free, open access site) will not provide a guide to every legal problem faced by a GP or those who advise GPs.  However I hope that it will prove to be of some value in those areas covered in detail in the various chapters.

 

3.              The creation of the NHS was a political decision which emerged from the Beveridge Report, on the Report of the Inter-Departmental Committee on Social Insurance and Allied Services.  The NHS took legal form under the National Health Service Act 1948[2].  That Act of Parliament was amended on numerous occasions.  All of the changes to the legal structures of the NHS were brought together in the National Health Service Act 1977.  Numerous further changes followed, particularly the creation of the “purchaser/provider” split for the NHS and the creation of semi-autonomous hospital trusts as a result of the National Health Service and Community Care Act 1990, which came into effect in 1993.  By 2006 there had been so many changes to the National Health Service Act 1977 that a new consolidated Act of Parliament was needed.  The new Act was – predictably – called the National Health Service Act 2006.

 

4.              Today the legal structure of the NHS is substantially governed by the present version of the National Health Service Act 2006 (“the NHS Act”).  However the NHS Act has been amended on many occasions since it was passed in 2006.  The present version of the NHS Act includes many amendments which were made by the Health and Social Care Act 2012 which made very substantial changes to the structure of the NHS.  In addition many of the sections of the NHS Act permit the Secretary of State to make Regulations which, once made, affect the legal obligations of NHS bodies.  

 

5.              There is also a wide range of other Acts of Parliament and other sources of law, including EU law, which impacts on the NHS.  Hence, for example, procurement in the NHS is governed by the general rules on procurement within the Public Contracts Regulations 2006 as well as specialist Regulations for the procurement of NHS medical services known as the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013.

 

6.              The legal obligations set up the NHS Act require a series of public bodies (the Secretary of State, NHS England and other NHS organisations) to make arrangements to commission and provide a range of health and social care services for the people of England.  Under section 1 of the NHS Act, the Secretary of State has a duty to “promote” a comprehensive health service.  In order to achieve this vision of a comprehensive health service, clinical commissioning groups and the NHS Commissioning Board (known as “NHS England”) have a duty to provide a range of services to meet the reasonable requirements of patients for services as well as making arrangements to provide primary care, dental and pharmaceutical services.

 

 

7.              The main statutory duties under the NHS Act are not a legal duty which are owed to individual patients.  In particular the NHS Act creates no duty of care to patients generally.  The Secretary of State has no general private law[3] duty of care to members of the public as potential patients and neither do NHS bodies.  The legal duties under the NHS are fulfilled if health and social care services are made available to potential patients to meet what the NHS commissioners consider to be their “reasonable requirements”.  Thus the NHS Act does not impose legal duties on NHS bodies to provide healthcare to individual patients (save possibly in the case of patients who are sectioned under the Mental Health Act 1983).  The role of NHS commissioners and providers is put services in place so they are there if the public wish to access those services. Whether an individual patient wishes to access such services or not is a matter for that individual.  Save in the case of a detained mental health patient we all have the right to refuse medical treatment. 

 

8.              No one who has the legal capacity to make their own decisions is under any legal obligation to consult a doctor or attend a hospital.   Save in unusual situations such as compulsory mental health treatment, patients have the right to take their own decisions about receiving medical treatment.   So the NHS Act cannot impose any duties on patients to receive medical care. 

 

9.              Equally the NHS does not have an unlimited budget.  This means that NHS cannot offer unlimited care to any patient or guarantee that patients will have access to NHS funds to support any medical care which might be clinically effective for that patient.  NHS bodies have a duty to break even financially and so are entitled to ration care (see chapter 2).

 

The different legal “hats” worn by GPs.

10.           The NHS is a complex legal system and GPs working in the NHS undertake a variety of different functions.  A GP wears a large number of legal “hats” depending on which function the GP is undertaking.  An individual GP can be:

 

·      A doctor who owes duties in tort (i.e. in negligence) to patients;

·      A partner in a GP practice with legal duties to her partners

·      An employer with legal duties to his employees,

·      Part of a CCG and thus taking commissioning decisions.  These are administrative decisions which are taken within the scope of the public law duties of the CCG.

·      A professional who has regulatory obligations to the General Medical Council.

·      A person whose duties can attract the attentions of the police and the criminal justice system.

 

11.           In order to provide a description of the legal rights and obligations of a GP in any individual situation, it is necessary to identify the legal function or functions the GP is undertaking.  The next section seeks to help GPs and those advising them to identify which “legal hat” the GP is wearing?  But first it is necessary to say a little about the different types of legal obligation engaged in any situation faced by a practising GP.  It is not enough to ask if something is lawful or unlawful.  It is also necessary to identify the type of legal obligation engaged in any particular set of facts and in particular to identify the consequences for that individual of any breach of that legal duty.

 

The different meanings of “law” and legal obligations in the NHS.

12.           Patients and law abiding members of the public often only have a vague understanding of what is meant by “legal” or “lawful” in relation to the NHS.  Misunderstandings are perpetuated by the media that use the terms “unlawful” and “illegal” without displaying any understanding of the nature of the legal obligation which has been breached.  A patient may demand treatment and say “I know my rights”, but it can be wholly unclear what type of legal right or obligation is being asserted (and often the assertion of knowledge of rights is good evidence to the contrary).  GPs work under different types of legal obligations and alleged breaches of each type can have different consequences. 

 

13.           The different types of legal obligations which arise for a GP can, in general terms, be summarised as follows:

 

a)    Criminal Law obligations:  Criminal law statutes and the common law define criminal offences which apply to everyone in defined circumstances.  If a GP acts in breach of those duties then he or she may be prosecuted for breach of the criminal law in the same way as any other citizen.  Hence, for example, a GP who assists a person to commit suicide may face prosecution in the Crown Court under section 2 of the Suicide Act 1961.  The outcome of a prosecution for the breach of the criminal law is a punishment imposed by the criminal courts, which can vary from a sentence of imprisonment to a fine depending on the circumstances;

 

b)    Contractual Law obligations:  GPs, whether individually or as part of a partnership, can acquire legal duties and have legal rights under a wide range of legally binding contracts[4].  Partnership agreements are a contract between the individual partners.  GP practices will hold a contract with NHS England[5] which defines their obligations and set out the duties of NHS England to make payments to the practice.  Patients who are treated by a GP privately will have a contractual relationship with the GP.  Employees of a GP practice are owed duties under their contracts of employment and, on a smaller scale, a GP may be a party to a contract to lease a photocopier.  Each of these contracts gives rise to private law legal obligations.  Contractual rights can be enforced by the GP or by another party against the GP in the civil courts (namely the County Court or the High Court).  If a breach of contract is proved, the remedies available include damages and/or injunctions;

 

c)     Non-contractual private law legal obligations:  There is no contract between a GP and his or her NHS patients.  However every GP owes a legal “duty of care” to his or her patients for treatment which is given or omitted to be given.  Other legal duties owed by a GP include the duty to maintain the confidentiality of patient related information held by the GP.  These are private law duties which are owed because the relationship between a GP and his or her patients.  It is the nature of the relationship which gives rise to the duty of care owed by the GP to the patient for medical treatment and to maintain confidentiality.  Any allegations of breach of this duty would be an allegation that the GP has committed a civil wrong, which can give rise to a claim for damages.  Such claims are tried in the civil courts if not otherwise resolved.  GPs who are not direct NHS employees are professionally required to be insured against such claims, usually with the Medical Protection Society or the Medical Defence Union;

 

d)    Information Governance Duties:  GP practices hold vast quantities of personal data relating to their patients and others.  GPs have to be registered “data controllers” under the Data Protection Act 1998.  Medical information relating to patients is defined as being sensitive personal data under the Data Protection Act 1998.  As a result GPs have a series of complex legal duties concerned with the handling of personal data.  Any complaint that they have breached such duties can result in a compliant to the Information Commissioner’s Office.  In addition GP practices are “public bodies” within the Freedom of Information Act 2000.  They thus have disclosure duties under that Act, although these duties do not apply to personal data which is covered exclusively by the Data Protection Act 1998.  Any complaint that a GP practice has breached its duties under the Freedom of Information Act 2000 can also result in a compliant to the Information Commissioner’s Office;

 

e)    Professional Regulatory Obligations:  In order to be lawfully entitled to deliver primary care medical services to patients, all GPs are required to be included on the list of medical practitioners maintained by the General Medical Council (“GMC”).  The purpose of the GMC is to protect, promote and maintain the health and safety of the public by ensuring proper standards in the practice of medicine.  Breaches of the GMC Code of Conduct will not necessarily amount to a breach of any other legal obligation owed by the GP to his or her patient or indeed to anyone else, but may do so.  A breach of the Code of Conduct may result in the GMC taking regulatory action against the GP to seek removal from the Medical List or the imposition of conditions on the GP’s continuing inclusion on the list;

 

f)     Performers List Obligations:  In addition to the regulatory role of the GMC, Regulations require that every GP delivering services to NHS patients (as opposed to treating patients privately) is included on a Performers List maintained by NHS England.  NHS England are entitled to seek the removal of a GP from the Performers List in a variety of circumstances including where NHS England conclude that it would be “prejudicial to the efficiency of the services which those included in that performers list perform” to maintain the GP on the Performers List or that the Practitioner is “unsuitable to be included in that performers list”;

 

g)    Statutory duties:  A huge variety of Acts of Parliament or Regulations made under Acts of Parliament impose legal obligations on GPs.  These are known as “statutory duties”.  There are, for example, statutory duties arising out the Health and Safety at Work Act 1974 which require GP practices to make their premises reasonably safe for visitors and those who work there.  The Employment Rights Act 1996 imposes duties on GPs towards their staff and prohibits GPs from unfairly dismissing staff.  The Equality Act 2010 imposes a range of duties on everyone providing public services not to discriminate when undertaking public functions.  The obligation to pay a wide variety of taxes is all set out in statutes and enforced by HMRC.  All these statutes create legal obligations and then provide a variety of mechanisms for determining whether there has been a breach of the statutory duty.  Breach of statutory duty can result in a criminal case (as with health and safety breaches), a case before a tribunal (such as with employment rights that are heard before an Employment Tribunal) or may result in a civil claim for damages;

 

h)    Public law obligations:  Lastly there are specific legal obligations that are owed by public bodies which, on occasions, can engage GPs.  Clinical commissioning groups are public bodies with a wide variety of public law duties, breach of which can result in action in the administrative court.  Public bodies have a range of specific legal obligations both at common law and under a huge variety of statutory schemes.  Different public law obligations are enforced in different ways.  For example, breaches of the duties under FOIA are enforced by the Information Commissioner and on appeal to the First Tier Tribunal (Information Rights).  If there is no other enforcement mechanism laid down in legislation, breaches of public law duties are enforced by way of applications for Judicial Review in the High Court.

 

How do these multiple legal duties work out in practice for a GP?

14.           A single act or sequence of events involving a GP may engage more than one of the above legal duties.  Hence, to take an extreme example, it may be alleged that a GP has delivered seriously sub-standard care to a patient who has subsequently died as a result of the failure of the care provided by the GP.  Such a GP may find himself or herself having to meet the following legal problems:

 

a)    The GP may be prosecuted for breach of the criminal law, probably for the offence of manslaughter.  If such a criminal case were to be brought, it will be tried in the Crown Court;

 

b)    The actions of the GP may be alleged to be a breach of the contract the GP holds with NHS England (such as a General Medical Services Contract).  That may entitle NHS England to impose contract sanctions or even terminate the GMS contract;

 

c)     The actions of the GP may leave him or her in breach of his duties to his partners and may lead to expulsion from the medical partnership;

 

d)    The GP will have breached his duties to the patient and thus the patient’s executors or administrators may sue the GP for damages.  That claim would be brought in the civil courts.  The GP may be able to rely on his professional indemnity insurance (provided for example by the MDU or MPS) to meet any damages;

 

e)    The GMC may take action to remove the GP from the Medical List by bringing the GP before a Fitness to Practice Panel; and

 

f)     The GP may also face action from NHS England to remove him or her from the Performers List. 

 

15.           Each of the above legal consequences will involve different legal considerations even though they arise from the same set of primary facts.  In such a case the GP will have to work closely with the lawyers he or she has appointed (and possibly more than one set of lawyers) to protect his or her position.  Some aspects of this legal work will be covered by professional indemnity insurance but others aspects may have to be funded by the GP or the partnership within which he or she works.  However, in assessing and understanding the legal options and risks for the GP, it will be essential to understand the particular legal framework within which the GP is working, and the legal principles that apply to that particular legal action.

 

16.           The chapters of this website seek to look in detail at the legal obligations on GPs and their rights in a variety of different situations.  However it is important that GPs and those who advise them recognise that legal problems rarely exist in individual silos.  The same set of primary facts can give rise to multiple legal issues with the GP wearing different “hats”.  Individual sections of this website are able to point out some occasions where there are likely to be multiple legal effects but it would be impossible to predict every situation where one set of facts or allegations will give rise to multiple legal issues. 

 

17.           There are limitations to the extent to which a general guide can assist in a particular set of circumstances.  If the text of site is in sufficient to answer all relevant questions, readers would be well advised to seek expert legal advice in relation to the particular facts, building on the initial guidance obtained from this site.



[1] This website does not cover the law relating to GPs working in the NHS in Wales, Scotland or Northern Ireland.  The NHS is a devolved function in Wales, Scotland or Northern Ireland and hence the arrangements made in those countries are matters for lawmakers in the elected assembles of each country and so will not necessarily be the same as for GPs working in England.

[2] There are numerous academic works on the history of the NHS but the outline details are at http://www.nhs.uk/NHSEngland/thenhs/nhshistory/Pages/the-nhs%20history.aspx

[3] I.e. A legal duty which can be the subject of a private law action for damages if it is alleged to have been breached.

[4] A “contract” for these purposes is an agreement of sufficient certainty of terms concluded between 2 or more parties who intend to create legal relations supported by adequate consideration and where there is no other legal objection to the creation of enforceable legal obligations between the parties.

[5] NHS England is the operating name for the National Health Service Commissioning Board.  For details see

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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