Due Diligence – is it worth the effort?
For any major commercial transaction, you need to know exactly what you’re getting into and ensure (as far as is possible) that there aren’t going to be any nasty surprises further down the line.
In the same way that you would call on the services of a surveyor when thinking about buying a house, due diligence when you are merging or acquiring a practice can help you see what’s below the surface and avoid you making a costly mistake.
A GP practice merger or acquisition will typically involve:
- Legal due diligence – which focuses on all legal arrangements associated with a practice; and
- Financial due diligence – which examines the accounts and all financial dealings, usually from the last 3-4 years
For this blog, we are going to focus on legal due diligence.
Who can carry it out?
You may choose to carry out due diligence yourself, or ask your solicitor to deal with it. Using a solicitor has the benefit that everything will be documented in a business transfer agreement, with appropriate legally binding warranties and indemnities.
While certain issues are easy to identify, others are not. An experienced solicitor will know what to ask and recognise potential risks which you will want to know about.
What kind of risks may be identified?
In a GP practice merger or acquisition, the biggest risks will often be associated with:
- property
- the core contract
- staff
- pensions
but there may be others and it is important to undertake suitable investigation and raise enquiries.
Examples of issues you need to be aware of are onerous business contracts, unresolved disputes, and pending or threatened legal actions. Some of these will be documented, but others might not be.
Warranties & Indemnities
If there is any uncertainty, then you have the option to ask for a warranty from the partners, whereby they legally confirm what they have said is true. This may offer some comfort, but you may also want a series of indemnities to protect you from future liabilities crystallising. Just bear in mind that an indemnity is only as good as the financial standing of the person who gives it.
Our recommendations
At the end of the due diligence exercise, you should feel confident that you understand any risks and can make one of three choices: accept the position, mitigate the risks or walk away.
Undertaking a merger or acquisition is a big decision. The benefit of due diligence is that it can help you identify early on where the high-risk areas may be. It isn’t something you have to do, but we would always recommend it.
Fortunately, most practice mergers go through without incident and due diligence doesn’t reveal any problems. However, for those unlucky few where a major problem is highlighted, it will have been time and money well spent. Think of a due diligence exercise as similar to taking out an insurance policy.
For more information, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
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How to set up a successful GP federation
GP federations are a way for practices to work together, with shared responsibility for delivering high quality and patient-centric services to the local community.
Their popularity is on the rise and with most CCGs supporting the concept, many practices are being encouraged to consider going down this route. But before doing so, there are some key issues that need to be addressed. The most important of which, is why do it?
To be successful, you firstly need to understand what the purpose of the federation is going to be. For most, it will be to provide services on a scale that a single practice could never achieve. For example, covering a wider geographical area, or larger population. Often one practice alone will not have the skills set or resources needed to deliver this or to afford the investment it may require.
Once you have established the federation’s purpose, you need to find a group of like-minded practices, who share your vision and will be a good ‘fit’ to work with.
The business model your federation will follow is another key issue to address. Many of the federations we work with, choose to create a limited company with shareholders. The reason being that it offers a lot of flexibility is well understood and they will benefit from limited liability. In addition, if it has been structured correctly then the limited company will be able to hold GMS and PMS contracts, and provide NHS pensions to its staff and officers.
A main alternative route would be to set up a limited company as a regulated social enterprise (such as a Community Interest Company). For more advice on these two options and what the implications may be, see our blog The Benefits of a Social Enterprise versus Profit making Company
Organisational structure
The usual structure followed by a GP federation will be for shares in the limited company to be held on trust for the member partnerships, by one partner from each practice. It’s important that this relationship is documented in the partnership arrangements of each member practice.
Typically, the capital contributions, dividends and the value of each share will be linked to the size of the practice list. Other models are available, such as the number of partners, but are far less common. Voting rights may also depend on list size, but more typically they will work on a vote per practice, or follow a weighted voting structure.
Directors of a federation
Directors needed to be appointed who will act on behalf of the federation – not solely in the interests of their own member practice. These directors should be chosen by the shareholding practices. For smaller federations, there will often be one per member practice, but in larger federations, this isn’t normally advisable as it can become unmanageable.
Most directors will be drawn from the partners in the member practices, but this does not need to be the case. Some of the more successful federations look externally to hire in experienced directors, with the aim of helping to drive the federation forward. This does, however, come at a cost.
Rules and rights
It’s important to draft a shareholder’s agreement which will set out all the rules for any important matters, such as joining and leaving the federation, valuation of shares, voting rights and processes, restrictive covenants and delegation of responsibilities to directors.
Another aspect that needs documenting is the relationship between the member practices and the federation. Usually, the federation will hold the contracts with the commissioning body (such as the CCG, local authority, or trust). These contracts will then be delivered by the member practices. One benefit of this is that the federation will have no need for employed staff and if it isn’t providing the services itself, it won’t require CQC registration.
A disadvantage is that the relationship between the practices and the federation will be quite complex, because you need to think ahead and plan for any potential problems that may arise. The commissioning body would look to the federation if there is a problem with delivery, who in turn would look to the practice. This means there needs to be a documented sub-contract relationship and any contract held by the federation needs to permit this.
It can also cause problems for pensions from the associated income being passed through the federation, so you need to take specialist advice in this area. Additionally, it is important to think about who needs to hold professional indemnity insurance.
The secret of success will always come down to thorough planning and having the right professional advice to ensure you navigate the complexities of the process and protect your interests.
For more information about forming a GP federation, or for any other enquiries, then please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
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Is a Super Partnership right for your GP practice?
How GP practices can best work together at scale to deliver effective care has been the subject of much debate in recent years. Traditionally, when practices worked together it was more informal and mergers may have involved just one or two practices. However, one model that has emerged and continues to grow in popularity, is the so-called ‘super partnership’.
The term generally applies to multiple practices who merge, or choose to work as, a single entity. Some of the largest super partnerships contain over 100 partners and provide care for over a quarter million patients.
So, why are more and more practices considering this route?
Benefits of a super partnership
Joint working in this way offers many potential benefits for practices, mainly due to economies of scale. These can include:
- Increased role specialisation
- Shared services, such as HR and finance
- Negotiating lower prices when purchasing goods or services
- Shared cost of investment, for example in premises, technology, staff and services
- The potential to increase income by bidding for larger contracts and additional services
- A strong single ‘voice’ on all important matters affecting the practice and patients
- Support with issues of recruitment and retention, as the scale of a super practice can provide a broad and varied career ladder
What are the options?
Although every super partnership will be unique, we discern two main models for how a super partnership forms and operates:
1. Centralised partnership
This is a partnership which effectively operates as a single unit. Each practice will be responsible for managing their own costs, but most other things will be shared.
Common features of this type of partnership include:
- GMS/PMS contracts will transfer to the super partnership and merge together
- GMS/PMS contracts cannot be easily be attributed to a practice
- It will operate with a single set of accounts
- There will be a full sharing of profits, usually based on scheduled sessions
- There will be a sharing of costs and staff, who will transfer to the super partnership
- A cost centre manager based at each surgery will report to the super partnership
- The partners have full joint and several liability for the partnership, regardless of which practice they work in.
- All partners will be subject to the same partnership terms
- There is usually a management board of partners who have reduced or no clinical responsibilities
- No automatic right for a practice to withdraw
2. De-centralised partnership
In contrast, under a de-centralised partnership, each practice will operate as a separate business unit and be highly autonomous.
Common features are:
- The GMS/PMS contracts will transfer to the super partnership but won’t be merged so will be directly attributable to each practice
- Surgery buildings will be kept separate, with licences to occupy put in place
- The accounts will largely be kept separate with a very limited sharing of profits
- Each practice will retain the ability to ‘hire and fire’ staff
- Cross Indemnities will limit joint and several liability
- Separate policies for issues such as profit share, sessions and absence for each practice
- Shared control over partner admission and expulsion
- A Management Board exists, but the roles are not usually full-time and comprise elected partners who still retain clinical responsibilities
- Individual practices will have the right to withdraw
Key issues that need consideration when deciding whether to join a super partnership include concerns over surgery premises, tax implications, pensions, the sharing of information and the type of organisational, contracting and legal model that will be followed.
Overall, it is a complex process which requires a great deal of planning, so always seek the advice of an experienced legal team to ensure your best interests are protected and to help ensure your objectives are met.
For more information on this issue, please contact Nils Christiansen on 01483 511555 or email n.christiansen@drsolicitors.com
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The Benefits of a Social Enterprise versus Profit making Company
In our recent blog, Where will future practice income come from?, we explained how additional income is unlikely to come from your core GMS/PMS contract. As a result, many GPs are looking to supplement their income from other sources; from their CCG, from the local authority or in other ways.
It looks like the majority of new public money available to primary care will be funnelled through practices working together; the NHS Five Year Forward View, Vanguard monies and the much promised – but yet to be delivered – ‘premises’ money are all strongly suggestive of this. This is one trend in healthcare which seems likely to continue.
If you’re looking at working together with other practices, the chances are that you are either already a member of, or are considering setting up, a GP federation or a GP Network. In this first article in a series of articles linked to GP practice income, we will be looking at the benefits of running this as a social enterprise versus a profit-making company.
Introduction to social enterprise
Most GPs will be familiar with the traditional, profit-making enterprise, where the shareholders each receive a share of the net profits to spend as they wish. In contrast, many GPs know relatively little about social enterprises and their benefits, although they may be under some common misconceptions.
Working for a social enterprise does not, as is sometimes assumed, mean working for free. Everyone working in the business will be paid the going rate for providing their services, and suppliers all get paid in the normal way. Consequently, for most people, there is no practical difference between working for a social enterprise and for a profit making business.
The key is that any ‘surplus profit’ once all the costs of the business have been settled must be invested into the ‘social purpose’ as defined in the objectives of the company. Furthermore, if the business is wound up, any remaining assets would also need to be re-invested back into the social purpose. The precise definition of ‘surplus profit’ and how it can be spent is determined by the type of social enterprise. We will be looking at these different types in another blog post.
While the terms ‘non-profit making’ and ‘social enterprise’ are used interchangeably, it is important to note that a social enterprise can make a profit, and indeed it can be possible for some of this profit to be returned to investors in the business. It’s just that ‘surplus profit’ must go towards supporting the social purpose.
The practical implications and benefits of social enterprises
There are a number of potential advantages to running a healthcare practice as a social enterprise:
- Social engagement is much easier
Community support for social enterprises can be stronger as the business is seen to be working for a good cause, rather than for the investors. Local people may be more willing to contribute their time by volunteering or fundraising; the general feeling of goodwill may attract more patients through the door; there may be fewer complaints as people feel a degree of ownership, and; employees may show more commitment.
- Access to alternative sources of finance
Healthcare practices are traditionally financed through a combination of NHS funding and bank loans. Social enterprises may be able to supplement these with other sources of funding from ethically minded individuals or organisations who are happy to provide capital as a gift or at below market rates since they know that the ‘saving’ will be locked into providing the social purpose rather than extracted as additional profit by the business owners. Examples include community fundraising, crowdsourcing, bequests and legacies, and trust fund grants.
- More opportunities for joint working
It is widely understood that the future of healthcare must lie in better integrating primary care with secondary and social care and that GPs are key to coordinating a patient’s ‘healthcare journey’. The challenge is how to get such a disparate variety of participants to successfully work together. Trust is at the core of any working relationship, and some, if not most, of the necessary healthcare professionals may feel more committed to joint working for a social enterprise where ‘going the extra mile’ has a more direct impact on the community.
- Reduced risk of disputes between business owners
Social enterprises can be ‘owned’ in a variety of ways. Common methods include limited company shares and membership subscriptions. The most appropriate method depends partly on how widely you wish to spread ownership (e.g. a small group of GPs, all local health workers, or all patients?) Since social enterprises have minimal to no value to the owners, there is no goodwill to be valued and none of the resulting arguments between shareholders over the value of their investment on leaving the company. If someone wants to leave they are more likely to simply leave and take their services elsewhere.
- Preferential treatment?
Although CCGs and other public bodies are not currently allowed to prefer social enterprises in procurement, they are able to set selection criteria such as ‘demonstrating community involvement’ which social enterprises may find easier to meet.
In conclusion
Social enterprises hold many apparent advantages in the primary care sector. Since most costs are simply salary costs, healthcare is anyway not normally a sector which generates large ‘surplus profits’. For this reason, the ‘benefits’ of social enterprise can be accrued without the ‘cost’ of losing access to the (non-existent) surplus profit. These benefits include inviting trust from the local community which should hopefully result in better health outcomes.
If a GP federation or Network is set up as a social enterprise, the owning GP practices can remain as profit making partnerships and still be paid by the federation/network for the work they do in the normal way. The GP federation/network will then engage with the local community and with other health and social care providers to become a true ‘multi-speciality community provider’ as envisaged by Simon Stevens in the Five Year Forward View.
The bottom line is that social enterprises remain a little misunderstood. If you’re considering setting up or becoming a social enterprise, it is important to seek appropriate advice on the implications and on the legal entity.
DR Solicitors has already helped numerous GPs establish an operating vehicle for their joint working (GP federations and Network Companies), some of which have been established as Social Enterprises. Please contact Daphne Robertson or Nils Christiansen if you would like to discuss your joint working plans. We would be delighted to hear from you.
For more information about GP networks and federations and any other related issues, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com