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Unforeseen consequences of the Performers List Regulations 2013

 

The new Performers List regulations came into force on 1 April 2013. The most obvious change is that PCT lists have been replaced by a single national list held by NHS England. This was a necessary consequence of the abolition of the PCTs, and should introduce some much needed consistency into the application of the rules.

In most ways the new regulations simply restate the old ones, but with one major and very troubling difference. The new regulations state that NHS England MUST remove a practitioner from the Performers List in the event their GMC registration is suspended. The old regulations restricted this requirement to a suspension order issued by a GMC Fitness to Practice (FTP) panel, but the new regulations do not distinguish between Interim Orders and FTP suspensions.

This means a GMC Interim Order to suspend a practitioner can no longer be defined as a ‘neutral act’. Interim orders can be made without a hearing or finding of fact and were originally intended to protect and reassure the public before the facts could be established, but they will now have very serious consequences.

Most Partnership Deeds include an obligation to ensure partners stay on the Performers List. A breach of this obligation is usually a ground for expulsion from the partnership.

Even if the doctor remains in the partnership, there will still be significant financial implications. The well-known ‘90% rule’ enabled PCTs to suspend doctors under investigation from the Performers List, triggering a payment directly to the doctor of 90% of their earnings. This is reflected in many partnership deeds by a suspended doctor receiving no partnership drawings with the assumption that they would receive the 90% from the PCT, and their foregone drawings would be used to pay for locum cover during their absence. NHS England will not be able to pay the 90%, as it is only available for suspension from the performers list, not removal.

It is unclear whether this change is deliberate policy or a drafting error, or indeed whether the new position is legally enforceable, but practices would be well advised to:

  1. Review their partnership deed to ensure that it deals with the consequences of both types of GMC suspensions in the way that they wish
  2. Review the financial implications of removal from the performers list. This is likely to be a combination of checking the Partnership Deed and the locum insurance cover.
Posted on October 7th 2013 in News and Publications, Newsletters


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