Proposed changes to fitness to practise regulation and the role of the PSA
All medical professionals will deal with their professional regulator in an administrative sense, and some will unfortunately have more involved interactions in their career. Indeed an unexpected letter from the GMC, is one of the least welcome communications that might land in a doctor’s inbox.
However many medical professionals are not aware that the medical regulators (GMC, GDC, GPhC etc) are themselves regulated by a body called the Professional Standards Authority, or PSA.
New process for handling fitness to practise matters
The PSA sets ‘standards of good regulations’ and reviews regulator performance, and is currently consulting on an entirely new process for handling fitness to practise matters across the healthcare profession. Under the proposed new system, more cases are expected to be dealt with on paper through a process called an ‘accepted outcome’ rather than going to a formal hearing.
Most readers will likely welcome the idea of the ‘accepted outcome’ paper process, as formal hearings are extremely stressful for the medical professional involved to say nothing of the time it can take to hear the case. If you have strong feelings about this proposed new approach you can add your comments to the consultation via the PSA website until 15 April.
Role of the PSA
One of the functions of the PSA is to review the decisions of a regulators fitness to practise panel. The PSA can appeal decisions of those panels if they consider that a decision has been incorrect, for example due to procedural irregularities or because the decision does not adequately protect the public. The PSA does this by lodging an appeal in the High Court against the professional regulator such as the Medical Practitioners Tribunal Service, rather than against the registered doctor. The doctor can then be made a party to such proceedings, and can make representations at the appeal if they wish.
This can sometimes put doctors in the unusual position of wanting to argue that the decision of the MPTS was correct! For example, one of our colleagues recently acted for a medical professional who was involved in a serious drink driving accident. At final hearing, the Panel determined a warning was sufficient, but the PSA argued that outcome was essentially too lenient and appealed. In this way, strange as it may sound, it is sometimes possible to achieve too good a result at a final hearing.
At DR Solicitors we have experience of dealing with PSA appeals throughout the country. If you are unlucky enough to be involved in one you should certainly seek experienced legal advice urgently. For more information about this or any other legal or regulatory matters, please contact us or call 01483 511555 for a free, initial discussion about your position.
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GP Practice incorporation – navigating the ICB approval process
If you are one of the increasing number of GP practices looking to incorporate, then you will probably have familiarised yourself with the pros and cons of incorporation and (hopefully) sought the advice of your accountant and solicitors. One of the next important steps is to gain the support and approval of your ICB. This can present its own challenges and in this blog, we look at how to navigate some of these to reach a successful outcome.
Starting out with GP Practice incorporation
ICBs have their own concerns with the use of companies as primary care businesses, but they seem to stem not so much from unfamiliarity as from them leading to the increased possibility of contract terminations. The concern isn’t totally unfounded – it is much easier for a GP practice to terminate its primary care contract if it is operating as a limited company because the business owners can avoid personal liability for staff redundancies, and may even avoid personal liability under their lease.
In order to ensure a commonality of approach amongst ICBs to requests for a GP practice incorporation, the NHS has adopted a framework, known as the Common Assessment Framework (CAF), for ICBs to use when assessing whether to allow a GP practice to incorporate. The ICB will ask a practice to complete a questionnaire, and then carry out a RAG (red, amber, green) analysis on various aspects of the post-incorporation practice. Aspects covered will include strategy & delivery, the company details, outcome for patients, care quality and finance.
In our experience, a RAG analysis of a company taking over a partnership that meets the following parameters, will generally lead to scores which are overwhelmingly green:
- the shareholders and/or directors of the company are the same as the current partners;
- the company has the right to operate from the current premises;
- there is no change to personnel or clinical procedures;
- the company is acquiring all of the material assets of the current partnership (this can be documented in a simple business transfer agreement);
- the current CQC rating is good.
The novation agreement
Assuming that the ICB approves the incorporation of the partnership, and the CQC grants a new registration in respect of the company (there is little reason for them not to do so if there is no change to personnel, location, operating procedures or business assets) then the ICB will prepare a novation agreement whereby the primary care contract is taken over from the current partners by the new company.
ICBs usually start with a template novation agreement as published by the NHS, and in our experience practice often just sign it on the assumption it is innocuous. However the template includes the possibility of a guarantee from the current partners in respect of the primary care contract, and in our experience that ICBs will often include this guarantee together with other restrictions. This has the effect of significantly reducing the limited liability benefits of incorporation.
It is important to understand that a template can always be varied, and in our opinion there is no reason why a guarantee needs to be provided in a novation agreement. We have successfully presented the arguments against including such a provision on behalf of clients, and have had the guarantees removed through an appeals process.
Conclusion
Practices decide to incorporate for many reasons, and limitation of liability is only one of them. It is worth bearing in mind that although the oft requested guarantee ‘only’ covers liabilities arising from the GMS/PMS contract, these can of course be significant. If they were not, why would the ICB bother asking for the guarantee in the first place?
It is important to remember that even when you are presented with a template document published by the NHS for use in a particular circumstance, it is still possible to negotiate its terms and you don’t just have to accept it as the ‘NHS standard’. Many of these documents have hidden ‘stings in the tail’ which you will at least want to know about, so you can decide whether or not you are prepared to accept them.
Our specialist team at DR Solicitors are here to advise you on your GP Practice incorporation journey. Whether you are just starting out or hitting the first hurdles to overcome, you are invited to call us for a free initial consultation about your incorporation plans. Please telephone 01483 511555 or contact us here.
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Incorporating a GP Practice – is it right for your practice?
If you are a primary care partnership looking into alternative ways to deliver your core services, then this article is for you. There are a number of legal and tax related implications to consider before incorporating, and in this blog we look into some of the pros and cons of incorporating a GP Practice.
What is incorporation?
‘Incorporation’ means to constitute (a company, firm or other organization) as a legal corporate entity separate from its owners.
You may already have set up a limited company, for example, to hold your premises, deliver consulting services or to subcontract some of your core services. This blog concentrates on transferring the whole of the practice – namely the core GMS or PMS contract – into a limited company.
Why incorporate?
Whilst there are clearly many positive attributes to the partnership model, there are also a few problems, including:
- unlimited joint and several liability
- lack of a legal entity to contract. In a partnership it is the partners who contract personally
Some of the benefits of delivering your core services from a limited company include:
- a limited company is a legal entity in its own right and may hold assets and liabilities and enter into contracts in its own name. The directors and shareholders may change, but ownership of the assets and liabilities by the limited company remains the same. This simplifies matters when dealing with changes in property ownership, as there will be no need to change the name of the registered owners at the Land Registry, deal with Bank refinancing, or change the names on any contracts.
- a shareholder’s liability is limited to the value of their shareholding, which is usually limited to a few hundred pounds. Incorporation separates business assets from personal assets and creditors cannot come after a shareholder’s personal assets for a debt owed by the limited company.
- the management and ownership roles are separated. This allows for a wider range of business models than the partnership model allows, such as bringing in business managers as directors without the requirement for them to contribute capital or incur risk. Similarly, shareholders may contribute capital and receive profits without having any day to day involvement in the running of the practice.
- all staff, including directors, are normally employees and therefore paid under PAYE and have full employment rights. The partners in a partnership are self-employed and have very limited employment law protection, but what they lose in employment protection they gain in tax relief and partnership status. With the current challenges in recruitment of new partners, the protection afforded by a directorship in a limited company may be more attractive to some.
But incorporation does present its own problems, including:
- you are bound by the strict regulations set out in the Companies Act 2006. These override all your own governance rules, and you are not at liberty to run your business in a way that suits you and your partners, without reference to the Act. Partnerships by contrast are governed by the Partnership Act 1890 which is a much simpler and more flexible set of regulations, most of which you are able to tailor to your own needs.
- whilst limited liability is a major benefit for the shareholders of a limited company, it is a significant disadvantage for creditors who may be unwilling to lend to a limited company unless it has sufficient assets (such as a surgery) over which they can take security. Banks may ask for personal guarantees from the shareholders, and landlords could ask for guarantees from the directors.
- there is no ‘expulsion’ mechanism to remove a partner in the event that you can no longer work together. Special rules need to be written into the company’s Articles but even then, it is likely to be complicated to expel as it will involve terminating a person’s status as an employee, director and shareholder.
- you will need to make annual filings, including accounts, at Companies House and such information is publicly available. You will need to hold regular board meetings, record the minutes and document certain decisions in a specific way.
- shareholders do not have individual capital accounts. When a company makes a profit (or loss) this is not divided up amongst shareholders, but is retained by the company for its own benefit. The directors may then recommend that a dividend is paid to the shareholders as a return on their capital invested in the company, but this is only made from a combined ‘pot’ of retained profits. It is illegal to make a dividend payment unless there are sufficient retained profits in the company as a whole.
Conclusion
Whilst limited liability is a hugely attractive benefit, limited companies are not panaceas to all the issues of running a primary care practice, and there are definitely both pros and cons. We have certainly seen a trend towards practices incorporating, but any decision to do so should only be taken after seeking expert advice from both tax accountants and specialist primary care solicitors so that you can be advised on your particular situation. Incorporating a GP Practice certainly works for some, but many others discover that it is not for them.
Our specialist team at DR Solicitors are happy to answer any queries you may have about incorporating a GP Practice, and can also put you in touch with some expert accountants. Please contact us here or telephone 01483 511555.
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Thinking of closing a branch surgery?
There can be many reasons for wanting to close a branch surgery, including the premises not being fit for purpose, the lease coming to an end or it not being financially viable to continue to see patients from it. You might think that closing a branch surgery should be fairly straightforward, particularly if the patients can be seen at your main site just down the road and there are potential cost savings to be had for both you and the NHS. So what’s the issue?
Your obligations when closing a branch surgery
As the holder of a GMS or PMS contract, you are not permitted to close a surgery site without first going through a statutory process. Briefly, this requires you to:
- alert the ICB of your intentions and follow the agreed consultation guidelines
- consult with the LMC, the patient participation group and other stakeholders (such as local residents, other local GP practices, registered patients, local community groups, local allied health care professional organisations)
- submit a formal application to close the branch surgery to the ICB
Failure to do these things could put you in breach of your GMS contract.
Tips for a successful closure application
As far as the ICB is concerned a site closure will result in a major change to patient delivery, an alteration to your GMS service provision and potentially a change to the money you receive under your GMS contract once it is varied to reflect the closure.
Be as pro-active as you can in your formal application to the ICB. Time spent on the consultation process and collating all the relevant information to include in your application, will be time well spent. Try to present your application to close a branch surgery with solutions rather than problems. Provide as much information as you can about how your registered patients will be impacted – will they have better access, less wait for appointments, the benefit of extended hours, dispensing services etc.
Other considerations when closing a branch surgery
If closure is approved, don’t forget to consult with your staff and take advice if closure might result in redundancies or a change to their place of work or working hours. Getting it wrong can be a costly mistake.
If you lease your branch surgery, then you will need to bring the lease to an end. Even if you don’t have a written lease in place, you might still have an implied lease or protected rights under the Landlord & Tenant Act 1954 which need to be brought to an end in order to release you from your liabilities.
If the branch surgery is freehold and a partnership asset, then you will need to take tax advice and speak to your lender if there is a mortgage on it. Failure to do so could put you in breach of your mortgage terms. Remember that you will remain responsible for the branch surgery premises from the date of closure, when payments under the Premises Costs directions will stop.
Conclusion
If you plan well ahead, you can make informed and sensible business decisions that minimise risk. If you would like further advice on closing a branch surgery, terminating your lease or managing staff, then please contact us on 01483 511555 or email info@drsolicitors.com and we will call you back for a free initial chat.
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Webinar: The critical role of the Data Protection Officer
The statutory obligation on GP practices, GP federations and PCN companies to designate a Data Protection Officer (DPO) does not end with engaging somebody to undertake the role. GP Partners and company directors remain responsible for ensuring the competency of their DPO, and can be held liable if the DPO fails to properly undertake their duties.
Designating and supervising/undertaking the role of DPO is not straightforward and many GP practices and other primary care organisations are not meeting their statutory obligations. The ICO continues to offer advice to data subjects on claiming compensation as a result of a data breach or an infringement of their data protection rights, further increasing the risk of claims against GPs for data protection failures.
Hosted by our data protection and compliance specialist David Sinclair, this webinar provides:
- an update on the relevant statutory obligations
- top tips to reduce the risk
- steps to take in the event of a claim
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Patient’s fitness to drive and managing breach of confidentiality
As a GP, you are used to looking into the wider issues around a patient’s presenting complaint, such as safeguarding matters or a patient’s social circumstances and living conditions. However, one issue that could be over looked is a patient’s fitness to drive, and we are all familiar with the news stories of drivers suffering medical emergencies behind the wheel, often with fatal consequences.
In this blog, we look at what to do if you’re not sure about a patient’s fitness to drive and the steps you should take if you suspect that a patient will continue to drive after you have advised them not to.
Understanding your obligations around a patient’s fitness to drive
Often assessing fitness to drive will be explicit – you may be specifically asked by the patient, or the DVLA to consider this and all HGV Group 2 licence holders require a regular medical assessment.
GPs also have an obligation to consider fitness to drive matters even if the patient has not consulted specifically in relation to that, and when a patient has made you aware of a medical condition that could impact their fitness to drive.
Individuals driving when they should not can, and sometimes does, have fatal consequences. Many may recall the Glasgow bin lorry crash of December 2014 in which 6 people died and 15 were seriously injured. The driver of the lorry had fainted at the wheel and there was evidence in his medical records that he had previous episodes of unexplained fainting. Unfortunately, that information was not prominent in the records so the GPs that the driver presented to didn’t consider it a significant problem and took no action to stop him driving.
James Stewart of DR Solicitors acted for the GPs in the subsequent Fatal Accident Inquiry, and at that Inquiry criticisms were made that GPs did not appreciate the significance of a history of vasovagal syncope (ie fainting) that did not appear to have obvious triggers. Although the driver’s condition was not prominent in the records and the driver himself hid or minimised the problem, the Inquiry found that some of the GPs involved were not clear on their responsibilities as they relate to fitness to drive matters.
Carrying out your obligations
As the GMC guidance on fitness to drive states in its preamble:
“If a patient has a condition that could affect their fitness to drive, it’s their duty to report it. But as their doctor you have responsibilities as well”
The GMC guidance was updated in March 2023 and should be a GP’s first port of call if they have any concerns that a patient may be unfit to drive for whatever reason.
If a patient is assessed as unfit to drive, the first step is to advise the patient that they are not fit to drive and that they should report themselves to the DVLA.
Whilst many patients will accept that they are no longer safe to drive, others will be very resistant to any suggestion that they should no longer drive as it can significantly curtail their freedom and in some cases their livelihood.
Here it should be remembered that whilst doctors have a duty of care to their patients they also have duties to the public at large, as the guidance states:
“Doctors owe a duty of confidentiality to their patients, but they also have a wider duty to protect and promote the health of patients and the public”
The consequence of this wider duty is that if certain criteria are fulfilled, then a doctor can breach patient confidentiality and report a patient to the DVLA without their consent. Clearly this is going against one of the fundamental principles of the medical profession and should be a last resort.
As per the guidance:
“If it is not practicable or appropriate to seek consent, and in exceptional cases where a patient has refused consent, disclosing personal information may be justified in the public interest if failure to do so may expose others to a risk of death or serious harm. The benefits to an individual or to society of the disclosure must outweigh both the patient’s and the public interest in keeping the information confidential”
Such a fundamental breach of patient confidentiality should not be taken lightly and we would recommend taking professional advice before doing so.
Conclusion
Doctors should only report a patient to the DVLA without their consent when all the other options have been exhausted. Make sure you consult with the relevant GMC guidance very carefully before taking any action, as it lays out the various steps that must be undertaken before confidentiality can be breached.
As you might imagine, the patient involved may raise a complaint for breach of confidentiality, but you cannot allow the threat of a complaint deter you from your obligation to report.
If in doubt, doctors would also be well advised to take advice from senior colleagues or discuss with their defence organisation or discuss with DR Solicitors.
For further information about this or any other regulatory matter, please contact us on 01483 511555 or by email info@drsolicitors.com
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Have you received a Section 25 notice from your landlord?
If yes, you need to read this…
A Section 25 notice is an important legal document that can affect a GP tenant’s occupation of the surgery premises. Ignore it at your peril because you could lose important legal rights under the Landlord & Tenant Act 1954 (L&TA).
In this blog, we take a closer look at the L&TA, including the benefits it offers tenants and the challenges you may face if your lease is excluded from the Act. We also set out some steps you can take to reduce the risk of losing your occupational rights when your lease is up for renewal.
What is the Landlord & Tenant Act 1954?
The L&TA is an important piece of legislation that governs the relationship between landlords and tenants of commercial premises. It was introduced to offer greater protection for tenants, and the rights and obligations covered by the Act will be in addition to any terms and conditions set out in your lease.
Is your lease inside or outside of the L&TA?
Check your lease to see if you are protected by L&TA. Unless your lease includes a specific clause contracting you out of the L&TA, then you are likely to be protected by L&TA. This will also generally be the case even if you do not have a formal documented lease in place but have been in occupation and paying rent for a number of years. Most GP practices in NHSPS buildings are protected by L&TA.
Inside the L&TA – benefits to GP tenants
If your tenancy is covered by the L&TA then you will benefit in a number of ways, including:
- You will have an automatic right of renewal. That means that even when the fixed term of your lease ends, you have the right to remain in occupation and to apply to the court for the grant of a new lease.
- If you and your landlord fail to agree on the terms of a new lease then the court can make key decisions, such as the length of the new lease and the rent payable. In our experience it’s very rare for a primary care lease to be litigated in this way.
- When it comes to the length of the new lease, the court is much more likely to agree to a time period requested by a tenant, than by a landlord.
- If your lease payments are linked to the DV’s assessed rent (as all GP surgery rents should be), a court is unlikely to permit a new rent which permits a landlord to break this link, or indeed to permit the introduction of new or significantly varied service charges.
What is a Section 25 notice and what happens next?
If you have a protected tenancy then it will automatically continue under the same terms once your lease has expired unless you or your landlord serve a notice under L&TA bringing the tenancy to an end.
With surgery leases, landlords often use the Section 25 procedure as a positioning tactic and to preserve the value of their property portfolio. Examples are that they want you as a tenant but they want a new lease in place with a higher rent; or they want you to engage in settling a service charge debt. You can read more about the NHSPS service charge disputes here. As a GP tenant with guaranteed rent reimbursement, you are in a good position to negotiate and we have helped many clients reduce their historic service charge debt in return for entering into a new lease. However, you need to be strategic. Whilst it’s usually better to have your lease terms written down in a lease so there is certainty, sometimes there’s a good reason not to want a new lease in place – maybe there’s a merger coming up, retirements, or a new development on the horizon. All this needs to be thought through when deciding how to respond to a Section 25 notice.
There are strict time requirements as to when a Section 25 notice can be served and it must be served on the correct people. We can check this for you – if there are errors the notice may be invalid.
Negotiating a new lease
Once the Section 25 notice has been served on you, your original tenancy will come to an end on the specified termination date. If your landlord has confirmed that they do not oppose the grant of a new lease, you have a strict deadline within which to negotiate and agree a new lease. The deadline in the Section 25 notice can be extended by mutual agreement and it is not unusual to see a number of extensions being agreed while the terms of the new lease are negotiated and the lease is being approved by the District Valuer. All extensions must be agreed in good time before the deadline and in writing. If that deadline passes and no extension has been agreed with your landlord and you have not made an application to the Court (see below), then you will lose your right to seek a lease renewal from the Court under the L&TA. Here at DR Solicitors we manage these Section 25 dates very carefully so as not to compromise a tenant’s position.
If your landlord will not extend the deadline or in circumstances where a new lease cannot be agreed, we can make an application to the Court and that application must be made by the date specified in the Section 25 notice. That’s why you must not leave it too late before asking the landlord for an extension. If an application to Court is necessary a much more extended and complicated procedure is involved, with those proceedings lasting a number of months and quite probably more than a year, unless a lease is agreed along the way. Those proceedings are also costly and to be avoided. It is therefore usually in everyone’s best interests for lease terms to be agreed without the necessity of an application to the Court. I’m happy to say that it’s highly unusual for us to have to make a Court application for a GP lease.
Outside the L&TA – difficulties for GP tenants
If your lease excludes the rights under the L&TA, then there are some key issues you may face:
- When your lease comes to an end on the specified termination date, you will have to vacate the surgery regardless of the impact on patients. Plan ahead! Diarise the lease termination date and get in touch with us to discuss next steps at least 12 months ahead of time. The nearer you get to the lease ending, the weaker your negotiating position with your landlord
- It will be entirely up to your landlord whether or not they decide to offer you a new lease; if they do, then it could be on very different terms to your previous lease including terms which are not going to be approved by the DV. For instance the rent demanded under the new lease may be more than what the District Valuer is prepared to approve and authorise.
While you may be keen for your lease to be protected by the L&TA, your landlord may prefer it is excluded. This means it could become an important part of your negotiations. The arguments for and against excluding it will depend on many factors, including the buoyancy of the current rental market, and your future plans and those of your landlord.
Protecting your practice
The L&TA is a particularly complex area of law, with strict procedures that have to be followed to the letter, or you risk losing your protected rights. Unfortunately, even a seemingly trivial technical error in the processing of notices given in accordance with the L&TA can cause them to be invalid, resulting in some serious and potentially very costly problems for the practice.
We recommend you always seek assistance from a legal professional at least a year before your lease is due to expire (whether or not you wish to renew the lease or bring it to an end) and in the event that you receive any notice from your landlord seeking to terminate or change the terms of your occupation (such as a Section 25 notice).
If you are thinking of leaving a GP partnership then make sure your name comes off the lease when you leave otherwise you could receive an unwelcome Section 25 notice in the post. The partnership deed should also contain robust leasehold succession planning in it to ensure the surgery lease is always in current names.
As with all contract or lease negotiations, it is advisable to seek the advice of an experienced legal team, who can advise you on your specific case and personal circumstances.
For more information about this, or any other legal issue relating to your practice, please contact Daphne Robertson on 01483 511555 or d.robertson@drsolicitors.com
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Partial Retirement vs 24 Hour Retirement – Keeping Your Options Open
Most of our readers will be familiar with the concept of 24 hour retirement and that to be eligible, you need to leave the NHS for 24 hours. For a GP partner, this means resigning from the partnership for 24 hours. Single handers need to go into partnership with another eligible person and transfer their core contract, giving 28 days’ notice to NHS England. Salaried GPs need to terminate their contract of employment for 24 hours.
All of the above carry a certain degree of risk. Not being re-admitted into the Partnership, your core contract not being transferred back and contracts of employment being terminated are all possible outcomes that will keep you awake at night. Whilst the risk can be managed by having robust legal documentation drawn up and entered into before you take 24 hour retirement, it is still an arrangement that requires forward planning and cooperation from others.
The good news is that from 1 October 2023, there is a new option for some members called partial retirement, also known as drawdown.
What is partial retirement?
Partial retirement is already available to members with 2008 Section and 2015 Scheme benefits but now it also applies to members with 1995 Section benefits. Many people looking to retire now will be members of the 1995 Section, so this is of particular relevance to them.
NHS Pensions say that members aged 55 and over can choose to take part or all of their pension benefits in monthly amounts whilst continuing in NHS employment, without having to leave the NHS for 24 hours. Instead, you need to reduce your pensionable pay by 10%.
For GP Partners and single handers, that is interpreted as reducing hours by 10%. For a GP working 10 sessions a week, this means they will need to drop a session. The reduced hours must continue for at least 12 months. Salaried GPs will need to take a 10% cut in pensionable pay for a similar term.
Obviously there are restrictions on what is available to each individual. There’s a minimum age for triggering partial retirement and it’s also restricted if taken below normal retirement age. You must be an active member of the NHS Pension Scheme and not have opted out.
Things to consider
It is very hard to predict how and when any of us may want to retire, so the key is to keep your options open. GP Partners will want to ensure that they have the option to take either 24 hour and/or partial retirement and this is best documented in the Partnership Deed. It should include a right to trigger 24 hour retirement and a right to be re-admitted into the Partnership afterwards; also a right to trigger partial retirement and reduce working hours, whilst setting out the impact on profit shares for doing so.
Single handers will want to decide whether they can accept the financial and operational implications of partial retirement, but if they want to do this then there is no longer any need to transfer their core contract for 24 hours by entering into a fixed term partnership and can instead reduce their hours and hire a locum or salaried GP to cover the reduced sessions. This may well be a more attractive option for single handers than 24 hour retirement.
Employees should check their employment contract and if necessary, start a conversation with employers about how they might support their plans.
How we can help
Your partnership deed needs to make clear whether these retirement options are available to you. Simply send your Partnership Deed to info@drsolicitors.com and we will carry out a *free health check* to see if both 24 hour retirement and partial retirement are covered, and whether it is generally fit for purpose.
If you prefer to have a free initial consultation about your retirement plans or any other legal issues, please telephone 01483 511555 or email info@drsolicitors.com
DR Solicitors does not provide pensions or financial advice and we encourage you to seek independent advice from an IFA before making any decisions with regards to your pension.
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The Letby case and Doctors’ non-clinical regulatory obligations
The recent Lucy Letby case made headlines across the world. Interest in her trial and subsequent sentencing has brought into focus not only Ms Letby’s actions, but also the actions of those people who were managing her and the unit she was working in. Recently, it was reported that Cheshire Police are investigating if corporate manslaughter charges can be laid in relation to the events that took place at the Countess of Chester Hospital.
In addition to their corporate responsibilities, doctors have to meet the non-clinical regulatory obligations set out by the GMC. This includes ensuring that the systems they oversee and the processes which they implement and supervise are fit for purpose, and are focused on delivering good patient care.
In this blog, we look at how a doctor can meet their non-clinical regulatory obligations.
Meeting the GMC standards in leadership and management
The GMC has produced specific guidance on the standards it expects doctors to meet in relation to leadership and management.
The introduction to the guidance is instructive as it lays out the GMC’s position:
“Being a good doctor means more than simply being a good clinician. In their day-to-day role doctors can provide leadership to their colleagues and vision for the organisations in which they work and for the profession as a whole. However, unless doctors are willing to contribute to improving the quality of services and to speak up when things are wrong, patient care is likely to suffer.
This guidance sets out the wider management and leadership responsibilities of doctors in the workplace, including:
- responsibilities relating to employment issues
- teaching and training
- planning, using and managing resources
- raising and acting on concerns
- helping to develop and improve services.
The principles in this guidance apply to all doctors, whether they work directly with patients or have a formal management role…..
….You continue to have responsibility for the safety and wellbeing of patients when you perform non-clinical duties, including when you work as a manager. You are still accountable to the General Medical Council (GMC) for your decisions and actions, even if someone without medical training could perform your role.”
The highlighted last sentence is significant because it makes clear that the GMC will investigate concerns about doctors even when they are operating in a purely managerial, non clinical role. The GMC frequently investigate cases involving drink driving, fraud, assault and similar, so investigating non clinical management is not as big a step as some might imagine.
Your obligation to raise and act on concerns
As stated above, one of the important responsibilities for doctors is “raising and acting on concerns”. One of the great tragedies of the Letby case is that it appears concerns may have been raised, but that these may not have been acted upon.
The GMC consider this to be such an important subject in its own right that they have produced separate guidance on this. The guidance essentially explains how to apply in practice the relevant principles in Good Medical Practice, which is of course the primary guidance for doctors.
Conclusion
The GMC guidance on raising concerns states the following:
“All doctors have a duty to raise concerns where they believe that patient safety or care is being compromised by the practice of colleagues or the systems, policies and procedures in the organisations in which they work. They must also encourage and support a culture in which staff can raise concerns openly and safely.”
The wording is clear that doctors are under a duty to raise concerns and it is not optional.
If you find yourself in a position where you have a concern, you should check your practice’s own policies and procedures and read the GMC guidance in full.
If you are worried that you are not being listened to, or of potential repercussions, then DR Solicitors can offer you practical advice on best practise. For the rare occasions when things do go wrong and you find yourself in front of a regulator, we have the experience to guide you through that process.
For more information about meeting your non-clinical regulatory obligations or for any other primary care related legal issues, please get in touch for a free, no obligation chat on 01483 511555 or via email info@drsolicitors.com
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NHS Pensions and PCNs: The new rules explained
When Primary Care Networks (PCNs) were first established, it was only possible for PCN staff to get the NHS pension if they were employed in a practice or (sometimes) a GP Federation. It quickly became obvious that many PCNs would benefit from setting up their own PCN company, but the lack of a pension was an obvious barrier to this. In late 2019 NHSBSA put in place a ‘temporary determination’ enabling PCN Companies to provide the pension to their employees, and once this was available many PCNs decided to incorporate. We have written previously about why PCNs might decide to incorporate.
The concern with the old PCN pension determination was that it was always time limited and needed to be renewed every year. A Consultation was therefore undertaken on proposals to make permanent changes to the pension rules, which led to legislative changes effective from 1 April 2023 (the ‘New Rules’). Any new PCN Companies wishing to provide the NHS pension to their staff will need to apply to provide it under the New Rules. So far, so straightforward.
Unfortunately the legislation was passed just days before the expiry of the old determination, leaving NHSBSA no time to provide any guidance on how the New Rules would be applied. Worse, there was no guidance for existing PCN Companies who had been relying on the old time limited determination, and these were not mentioned at all in the legislation. During the Consultation the Department of Health & Social Care promised to extend the old time limited determination for a year until 31 March 2024 while this was all worked out, but for some reason this extension never happened and the old determination duly expired on 31 March 2023. As a consequence both new and existing PCN companies were largely left in the dark about how to secure and retain access to the NHS Pension for over 2 months. Only very recently has the uncertainty begun to clear.
Somewhat predictably the information vacuum has been filled by a degree of rumour and scaremongering, so we felt it would be helpful to explain the facts and to shoot down a few myths.
The New NHS Pensions Rules
The legislation and subsequent NHSBSA guidance has opened up two routes for PCN Companies to provide the pension to their employees. One is based on the ‘Independent Provider’ model, and the other is an ‘Open Determination’. We will look at each of these in turn:
‘Independent Provider’ Access is a long established ‘pension gateway’ for businesses which cannot automatically offer the NHS pension to their staff. Any business holding a ‘Qualifying Contract’ can apply for ‘Independent Provider’ status. If this status is obtained all staff who spend more than 50% of their time delivering the approved Qualifying Contract are NHS pension eligible. The New Rules introduce a new Qualifying Contract called the “primary care network standard sub-contract”. This is defined as ‘a sub-contract that complies with the National Health Service Commissioning Board’s template sub-contract, “Sub-contract for the provision of services related to the Network Contract Directed Enhanced Service 2022/23”’. Commenting on this less than perfect document is outside the scope of this blog, but suffice to say that in our experience NHSBSA are interpreting ‘complies with’ to mean ‘the same as’, so are telling all new applicants that they must submit a signed copy of this contract with their application for Independent Provider status. An Independent Contractor application involves a very long and complicated form filling exercise, but once completed an Independent Contractor can apply to add further ‘Qualifying Contracts’ at any time.
A ‘Determination’ is a bespoke ‘gateway’ made at the discretion of the secretary of state. This was the original approach used to provide access for PCN companies in 2019, but the old determination was time limited for 12 months which is why it kept getting renewed. That has now been replaced with a new ‘Open Determination’ which is not time limited and is therefore permanent. The application form for ‘Open Determination’ is much shorter and simpler than for Independent Provider status, but a Determination pension provider has no eligibility to provide the pension to anyone other than the category of staff covered by the particular Determination. Unfortunately the new Open Determination application form has not been published online, so you have to email NHSBSA to obtain it. For reasons that are not clear, NHSBSA seem to require applicants to sign the same NHS Standard PCN sub-contract when applying for an Open Determination as when applying for Independent Provider status, even though this is not a stated requirement in the very limited published guidance. The key thing to remember though is pension access is only available for employees of the PCN Company who spend at least 50% of their time activities related to the PCN DES.
PCN Companies are advised by NHSBSA to take advice before deciding which of the two pension routes to select. We would agree with this and further recommend that you also take advice before signing the NHS Standard PCN DES Subcontract.
Existing PCN Companies: Transitioning from the old time limited Determination
At DR Solicitors we have incorporated almost 100 PCNs, most of which will have applied for pension access under the old time limited determination rules which expired at 31 March 2023. It would be nice to think that all the PCN Companies providing the pension under the old dispensation would be automatically grandfathered to one of the new routes, but this does not seem to be what NHSBSA have in mind. The NHSBSA guidance states instead that “Existing employers, with PCN TLD access which expired on 31 March 2023, should complete an application if continued access is needed. When approved for open PCN determination access the existing EA code will be retained.” Because the EA code is retained, the Open Determination is the logical successor to the old time limited Determination as there should be no change from the perspective of the staff if this route is followed. There appears to be nothing to stop an existing PCN Company from applying for Independent Provider status instead of open access, but this would presumably result in a new EA code and thus require the staff to be transferred.
The sting in the tail is that because existing PCN Companies have to reapply, they have to comply with the rules associated with the new open determination. Most importantly, this means that NHSBSA are likely to insist they sign the Standard NHS PCN DES sub-contract, which was not a condition of the old time limited determination. Any existing PCN companies should already sub-contracts in place, but these will almost certainly not be the NHS standard sub-contract. Assuming NHSBSA continue to insist on receiving a copy of the new standard contract, existing PCN companies will either have to change this part of their legal documentation or persuade NHSBSA that their current documents are equivalent. It is unlikely that this will significantly alter the way that most PCN companies operate, but again we suggest that you take legal advice before signing any new contracts or making any changes to your existing company arrangements.
Next Steps
Firstly, don’t panic. There are new rules in place which will take some time to settle in, but once that has happened and NHSBSA has caught up with its application backlog the arrangements will be permanent and everyone should be in a better place as the arrangements are now permanent.
All PCN Companies who wish to provide the NHS pension to their staff need to consider whether to adopt the Independent Provider or Open Determination route. There are pros and cons to each, and we recommend that you look into them carefully before making a decision.
Regrettably, existing PCN Companies with the old time limited determination need to reapply. Again they should take advice, but the choice may be more obvious for them because of the benefit of keeping the EA code associated with the open determination route.
Everyone who selects the Independent Provider route will have to use the standard PCN DES sub-contract, which they are advised to take advice on before signing. It is not a particularly user friendly document.
Those who select the Open Determination route are usually required to sign the same document, even though it is not clear why. Again, take advice before doing so.
Myth Busting
We are aware of various rumours circulating about the implications of the New Rules, so we thought it would be helpful to put some of them to bed:
- The pensions access has nothing to do with the CQC. Regardless of which route you go down you do not necessarily have to register with the CQC. CQC registration is a totally different process and is unrelated to NHS pension access.
- NHS Pensions Access for PCN companies did not cease as at 31 March 2023. Quite the opposite. A ‘primary care network management company’ is now set out for the first time in legislation as a company eligible to provide the NHS Pension to its employees. The problem is that the legislation was passed just days before it went into force, leaving NHSBSA very little time to prepare for implementation. Existing PCN Companies need to re-apply, but so long as they do so there should be no problem with continued access and the pension status should then be permanent
- You do no need to decide whether you are a ‘PCN management organisation’ or a ‘PCN Provider Company’. No such distinction exists. You just need to sign a sub-contract. What this means operationally depends on how you complete the sub-contract schedules, but that should not normally affect pension access.
- You do not need to change your PCN business strategy as a result of the New Rules. You need instead to ensure that you complete the new sub-contract in a way which supports your existing PCN business strategy.
- There is not a third option of a ‘Closed Determination’. Whilst closed determinations are often involved during the process of establishing a PCN Company, they are not a generic way of providing future pension access.
Conclusion
The New Rules are a big step forward. As ever with pensions they are not straightforward, but it is important that all PCN Companies familiarise themselves with the rules and make an application for one of the two routes. At DR Solicitors we would like to see some increased flexibility around the less than perfect standard PCN sub-contract, but in the meantime it can, with care, be made to work for your PCN Company. However this is a complex area, so please do get in touch if you need any support in making the applications.