When you’re busy dealing with the day-to-day responsibility of running a GP practice, planning for the future can sometimes take a backseat. But there is one area you cannot afford to overlook and that’s succession planning.
There will naturally be some level of movement within any GP partnership, from individuals moving on, to those retiring or choosing to leave general practice altogether. Indeed, figures from Health Service Journal reveal that more than 20 per cent of GPs are approaching average retirement age in some areas of the UK.
These ‘normal’ problems are however exacerbated by the current recruitment crisis in General Practice, such that in many areas it is proving near impossible to recruit new GP partners.
Knowing how you will manage losing a partner and taking steps to eliminate or reduce any potential issues, is a vital part of the process. Having a robust succession plan in place is key, for the protection of the practice, the patients, and the interests of partners.
Problems you may encounter when the number of partners declines include:
- Potential breach of lease – A surgery lease will often specify the minimum number of tenants, with the figure commonly set at two.
- Difficulty getting a mortgage – It may prove difficult for a practice with just a couple of partners to obtain a mortgage on a large/valuable building. As a minimum you can expect to face higher interest rates and have to contribute greater equity.
- Profitability at risk – Locums and salaried GPs are now frequently more costly than partners, so the loss of a partner may threaten the underlying profitability of the business.
- Increased pressures and commitment – Dealing with the management and regulation needed to run a GP practice is much easier when it’s shared between a number of partners. The fewer people involved, the bigger the commitment each partner needs to make.
- GMS/PMS contract issues – Once the partner to patient ratio becomes too skewed questions may get asked about your ability to deliver your clinical care obligations. NHSE can terminate a contract if they consider “that the change in membership of the partnership is likely to have a serious adverse impact on the ability of the Contractor or the PCT to perform its obligations”.
- Fear of the ‘last man standing’ issue – If the Partnership Deed obliges you to buy out a retiring partner, this can trigger a run as everybody tries to avoid being the ‘last man standing’. But even if you aren’t obliged, the result may be the surgery being part owned by people who have no interest in the business, which can create its own problems.
So, what can you do?
There are several steps you can take to try and reduce the risk of problems. They include:
- Increase the timeframe within which partners must leave their capital in the business following a retirement – ideally, until a replacement has been found
- Reduce the risk of a rush to exit by requiring a gap between retirements within the Partnership Deed. This should give you more time to recruit a replacement
- Consider undertaking a merger to increase the size of the partnership
- Make yourself a teaching practice and thereby more attractive to junior doctors who may be interested in becoming a partner in the future
- Agree what will happen to the mortgage following retirement. For example, specify whether retirees will be liable for a percentage of any early redemption penalty
- Consider promoting or recruiting a practice manager as a partner, to share the management load and further spread any risk
- Open channels of communication with NHSE and establish what additional support may be available to you
Prevention is always better than cure, especially when it comes to handling a retirement and the loss of a partner. It will always be far easier to plan ahead, than to deal with an issue should it arise. Taking time to consider all the potential implications and having a robust succession plan in place that is fully documented within the Partnership Deed, will offer you the greatest protection.
If you are facing any of the problems we’ve mentioned here, or for advice on undertaking a comprehensive succession plan, we’d urge you to seek the advice of an experienced legal team, who will ensure your interests are protected.
For more information about succession planning, Partnership Deeds, or any other related issues, please contact Daphne Robertson on 01483 511555 or email firstname.lastname@example.org
A GMS contract is a legally binding agreement made between a GP practice and NHS England (NHSE) that sets out certain obligations for both parties. It is the most important asset a practice will hold.
Running to over 270 pages plus lengthy appendices, it is a substantial and complicated document, both to navigate and understand.
Unless a practice has read it from beginning to end, and has very careful monitoring in place, it is likely that most practices will be in breach of their obligations at some point or another – in many cases, without realising.
So, what can practices do to protect their contracts?
Dealing with a breach
There are many reasons why a practice may be in breach of their GMS contract. Some are minor and some more serious.
If you do become aware of a contractual breach, you should rectify the problem as soon as possible and put procedures in place to ensure it doesn’t happen again. You should then assess the impact of the breach.
An example of a minor breach might be a failure to keep the practice leaflet or website up to date. There is not normally any obligation to inform NHSE of these minor breaches, although a practice would be obliged to provide such information if requested. If NHSE were to find out they would probably issue a breach or remediation notice. Once a practice receives two or more of these, NHSE become entitled to terminate the contract on notice, subject to a cumulative impact test.
For more serious breaches, you may be obliged to notify NHSE. In particular you should notify NHSE as soon as reasonably practicable, of “any serious incident that, in your reasonable opinion, affects or is likely to affect your performance of your obligations under the contract.”
Whilst this leaves room for ambiguity, a breach would certainly be considered ‘serious’ if it put patient safety at risk. An example of this might be a failure of the vaccine fridge, combined with inadequate records to prove that the no vaccines had been compromised.
Once NHSE becomes aware of a serious breach, they would consider whether to deal with it under the breach and remediation notices procedure outlines above, or possibly to terminate the contract forthwith. They could only do the latter, however, if they could show that patient safety was at serious risk.
There are particular notification requirements for breaches where:
- a contractor is no longer eligible to hold a contract – for example, if there is no General Practitioner left in the partnership
- if a partner becomes bankrupt, convicted of a serious criminal offence, is disqualified or suspended, or if a partnership is dissolved
In these instances there is a requirement to notify NHSE, who then need to consider contract termination (although there is not necessarily a requirement for them to terminate).
It is worth noting that while we are talking about GMS contracts in this blog, PMS contracts usually – but not always – have very similar clauses so always refer to your individual contract to be sure.
We advise practices to familiarise themselves with their core contracts and ensure they understand their obligations. Put systems in place to help monitor compliance and if a breach occurs, attempt to remedy the situation as soon as possible and put processes in place to prevent it happening again.
In the case of more serious breaches, for which practices are obliged to inform NHSE, you should let them know as soon as you can, include an impact assessment, and show that procedures have been put in place to reduce the risk of re-occurrence.
The complex nature of the core contract means it is not always clear whether you might be in breach, nor whether you need to notify NHSE. If you are in any doubt about your compliance, the severity of a breach, or if you have received a breach or remediation notice, then always seek the advice of an experienced legal team.
For more information about managing a breach, or any other related issues, please contact Daphne Robertson on 01483 511555 or email email@example.com
Most GP practices will be aware of the recent changes to the Statement of Financial Entitlements (SFE), which came into force on 1 April 2017.
Since the revised SFE provides for both new income streams and changes to existing potential income streams, decisions need to be made as to how this additional income is to be allocated. These rules, once agreed, then need to be correctly documented.
We’ve highlighted below some of the key changes and what you need to consider from a legal perspective:
Reimbursement of CQC Fees
A system of direct reimbursement will be introduced whereby practices can submit their paid invoices to NHS England, or their CCG (under delegated commissioning) and will receive full reimbursement of the amount paid.
However, this raises two potential issues. Firstly, the practice has to pay the fees before it can claim a refund. Secondly, and perhaps more importantly, there is an assumption that the contractor is the CQC registered provider. This will usually be the case for GMS practices but arguably is not normally the case for PMS practices. This could be a source of dispute in due course.
Reimbursement of Indemnity insurance costs
Funds have been allocated to cover rising indemnity insurance costs. This money will be paid to practices on a per patient basis, but the intention is that the monies should go to whoever is paying the insurance premiums.
If practices pay for the PI cover for all their staff, they should keep the monies and share as they see fit. Normally, this would be between the partners in profit sharing ratios.
However, the situation is different if any GPs working at the practice pay for their own PI cover. The practice must then reimburse an appropriate proportion of that individual’s PI cover cost.
Depending on your circumstances, this could necessitate changes to your Partnership Agreement, employment contracts, and locum contracts.
Changes to GP retention Scheme
Improvements have been made to the GP retention scheme, whereby GPs who are planning on retiring (or who meet certain other criteria) are able to apply for retention monies as an incentive to stay in general practice.
If successful, these monies will be paid to the practice and partners will need to agree how the monies are to be shared. Normally, the individual will expect to take these monies as a prior share, but unless this is clearly agreed by all the partners, the default would be that the monies are shared in profit sharing ratios.
Changes to sickness absence payments
Changes have also been made in relation to sickness absence payments, which can be made for both locums (as previously) and now for the practice’s GPs covering each other. This seems a sensible change which may be helpful for many practices.
However, this scenario is often not contemplated in partnership agreements so could give rise to debate and conflict over how to fairly allocate the additional income.
We recommend that you consider the changes and assess their impact on your current processes. If there are any necessary changes (which we would expect there to be) you will need to review your existing partnership agreement and potentially your salaried GP contracts and locum contracts, to check they reflect what you have agreed.
Remember, if you don’t have a partnership agreement in place, or it is lacking in detail with regards to specific issues, then the legal position by default will be that everything is shared in established profit sharing ratios.
As an aside, while the SFE applies to GMS contracts by default, it will only apply to PMS contracts where the contract specifically states this. If you are in any doubt, you should check your PMS contract.
For more information about the impact of these changes, or any other enquiries, please contact Daphne Robertson on 01483 511555 or email firstname.lastname@example.org