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Burn out: legal issues to consider if one of your GP Partners “burns out”

Daphne Robertson, Principal of DR Solicitors, advises on the legal implications to be considered if a GP Partner isn’t coping…

There are four key legal areas that need to be considered when a partner is suffering from stress: disability discrimination; professional conduct including patient safety; partnership obligations as defined in the partnership agreement; and fulfilling one’s obligations under the core medical services contract.

Certain stress-related conditions can constitute a ‘disability’ under the Equality Act 2010. GPs are usually aware of the protection that the Equality Act gives them, and will bring or threaten disability discrimination claims where they feel that their colleagues are trying to engineer their removal. Appropriate support should be provided to any partner or employee who is suffering from stress.

If at any time GPs have concerns that a colleague’s condition affects patient safety, they are obliged to act in accordance with Good Medical Practice (note the 22 April 2013 update). This states that you must ask for advice from a colleague (such as another partner or GP at the LMC), your defence body or the GMC. If you are still concerned you must report the matter, and careful documentation will be essential in case your actions are later alleged to be discriminatory or you are accused of acting in bad faith towards your partner.
So long as there are no concerns about patient care, in the first instance the troubled partner ought to see their own GP or otherwise seek specialist professional guidance. It would be appropriate for the senior partner colleague who has responsibility for HR issues to address such matters informally (but confidentially) with the individual, keeping themselves appraised as to progress made.

Independent examination

If the stressed partner does not seek treatment or their condition continues or worsens, you should consider the rights and obligations defined in the partnership agreement. This ought to require that the partner be examined by an appropriate independent expert (rather than the partner’s GP) who should provide a report setting out a diagnosis, the condition’s effect on the partner’s ability to carry out their duties, a prognosis, and the steps that might reasonably be taken to assist the partner.

If an independent health report recommends a partner take periods of rest and then return to work in a phased manner, the other partners have an obligation under the Equality Act to make reasonable adjustments. This may well conflict with timescales set out in the partnership deed so it is important to grasp this issue early. Old partnership deeds should be updated to ensure they comply with the Equality Act.

If a medical report provides evidence that supports a retirement on ill-health grounds, the partners may discuss the possibility of voluntary retirement. For situations where this is not agreed, it is common practice to include a clause enabling the remaining partners to compulsorily retire a sick partner after a prolonged period of absence – usually between nine and 12 months. While the purpose of such clauses is to protect the practice, they should always be exercised with care to avoid allegations of discrimination – seek legal advice first

Practices with partnership agreements that do not include such clauses will be unable to retire a partner in this situation. A well-drafted partnership deed will include provisions allowing for dispute resolution. Arbitration is often preferred over the courts as it provides confidentiality and can be quite flexible, but if part of the dispute alleges discrimination this will be heard in a public employment tribunal. Disputes where there is no partnership deed will be heard in the courts.

An important consideration when a partner is unwell is the implication for the GMS/PMS/APMS contract. If you seek to terminate the relationship by dissolving the partnership, you risk simultaneously terminating your contract, so it is critical to follow procedures for retirement set out in a valid partnership agreement. In the current environment, dissolution would almost certainly lead to your contract being re-tendered and even the possible closure of the practice. You could also be sued for breach of contract.

If a partner’s condition has given rise to fitness-to-practise concerns this could lead to a suspension or erasure from the register. The full consequences of this lie outside the scope of this article but suffice it to say that this would prevent a GP from being party to a core medical services contract. It is critical that this is considered in the partnership agreement.

In conclusion, practices are advised to check that the practice agreement takes account of the consequences of burnout, as the problem is increasing in frequency.

Article published in PulseToday.co.uk on 4/6/13

Posted on June 4th 2013 in DR Solicitors in print, News and Publications

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