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Chapter 9: Breaches and the termination of a GP practice contract

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Breaches of GP practice contracts, Remedial and Breach Notices

and termination of GP Practice Contracts.

 

This Chapter contains:

 

1                Introduction.

2                NHS England Guidance on responding to breaches of contract by GP practices.

3                Termination of a GP practice contract by resignation or by agreement.

4                Action by the GP practice if NHS England fails to pay monies due to the GP practice.

5                Termination on the death of an individual medical practitioner.

6                Termination by NHS England: General provisions

7                Termination of a GP contract where a single handed GP is struck off by the GMC.

8                What happens if a GP with a contract in sole practice is suspended by the GMC?

9                What happens if one GP in a partnership is struck off by the GMC?

10             Termination by NHS England for the provision of untrue information.

11             Termination where contractors fail to comply with the conditions in Regulations 4 and 5 of the GMS Regulations.

12             Termination due to a change in the identity of the partners to a GMS contract.

13             Termination of the Practice contract for a serious breach of contract by the GP practice.

14             Termination by NHS England for unlawful sub-contracting.

15             Remedial and Breach Notices.

16             Contract sanctions.

17             The role of the NHS Disputes Procedures and the FHSAU in breach and contract termination decisions.

18             Public law challenges to contracting decisions by NHS England.

 

 

Summary:  This chapter examines what happens if a GP Practice acts in breach of the terms of a GO Practice Contract, the notices that NHS England can serve on the GP Practice if there is a breach, the consequences of such a notice and the circumstances in which both the GP Practice and NHS England are permitted to terminate a GP Practice contract.

 

 

1.             Introduction

 

1.1           A GP practice contract is a legally binding agreement under which the GP practice takes on a large number of obligations, although primarily to deliver primary care services to NHS patients, and NHS England agrees to make payments to the GP practice in accordance with the contract. Although, to a great extent, the terms of a GMS or PMS contract is prescribed by Regulations, once the contract has been signed it takes effect as a normal commercial contract between the parties. The position was explained by Hickinbottom J in Tomkins v Knowsley Primary Care Trust [2010] EWHC 1194 (QB) who said at §8:

 

“.. once a contract [1]  had been agreed between the PCT and a dentist, it took effect as an ordinary contract, enforceable as such”

 

1.2           The rights and obligations of both the contractor and NHS England are set out in the wording of the GMS or PMS contract and it takes effect as a normal contract between the parties. That document defines the totality of the rights and obligations of both parties and defines how each party is entitled to react if there is a breach of contract by the other party (for more details see chapter 3). For the purposes of this chapter it is rarely relevant whether the GP practice has an NHS contract or a legally binding contract. Please click here for an explanation of the differences between an NHS contract and a legally binding contract. The only difference is that a dispute about the termination of an NHS Contract can only be raised within the NHS Disputes Resolution process.

 

1.3           The scheme described in this chapter is based around a General Medical Services Contract (“GMS”) [2]  contract. Personal Medical Services (“PMS [3] ”) and Alternative Personal Medical Services (“APMS”) contracts ought to have an largely identical scheme for breaches and termination because the relevant parts of the GMS Regulations are replicated in the PMS Regulations.

 

1.4           There are a large number of obligations that GP practices take on within a practice contract. NHS England is thus entitled to require GP practices to perform all of the obligations. Thus, for example, the practice is obliged to be open for core hours as defined in the GMS Regulations. Christmas day is excluded from core hours but the practice must be open on Christmas Eve. A practice that fails to provide services to NHS patients on either Christmas Eve would be acting in breach of contract and NHS England would therefore be entitled to take enforcement action against the practice for that breach.

 

1.5           However NHS England is rarely able to terminate a GP practice for a single breach of contract of that type. The contract sets out a scheme under which NHS England is entitled to respond to breaches of contract in a measured and proportionate way. This scheme requires the contractor to respond appropriately to an alleged breach. The scheme seeks to avoid unnecessary confrontation and to manage the relationship between the contractor and NHS England in a sensible way. However a contractor which does not co-operate with NHS England by responding appropriately to action by NHS England under the contract can find that his, her or its contract is lawfully terminated.

 



[1] The Tomkins case concerned a dental contract but the same principles apply to a GP medical contract.

[2] GMS stands for “General Medical Services”. It is the default form of agreement for GP practices. For details of the different types of contracts that a GP practice can hold please see chapter 3. The original Regulations setting up GMS contracts were the National Health Service (General Medical Services Contracts) Regulations 2004. These Regulations are at http://www.legislation.gov.uk/ssi/2004/291/contents/made. However the www.legislation.gov.uk website has not been updated to show all the changes made by the numerous amending regulations made since the Regulations were introduced in 2004. The wording quoted in this chapter is the version which is current at 1 January 2014 when this chapter has been written.

[3] PMS stands for “Personal Medical Services”, a form of GP Practice contract originally brought in by the National Health Service (Primary Care) Act 1997. For details please see chapter 3. The original PMS Regulations are the National Health Service (General Medical Services Agreements) Regulations 2004. These Regulations are at http://www.legislation.gov.uk/ssi/2004/619/contents/made. However the www.legislation.gov.uk website has not been updated to show all the changes made by the numerous amending regulations made since the Regulations were introduced in 2004. The wording quoted in this chapter is the version which is current at 1 January 2014 when this chapter has been written.

 

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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