PCN sub-contracting: new NHS template and factors to consider
NHS England have recently published a template sub-contract for PCN DES services https://www.england.nhs.uk/publication/subcontract-for-the-provision-of-services-related-to-the-network-contract-directed-enhanced-service-2022-23/
Many PCNs do not seem to realise that when buying in clinical services (as opposed to employing ARRS resources themselves) member practices are creating a sub-contract of their GMS/PMS/APMS contracts. This is true whether the supplier is a GP Federation, a PCN Company or an entirely separate third party.
Most PCNs rely on securing at least some of their resourcing from these providers, and yet many PCNs seem relaxed about documenting this significant relationship through informal SLAs, supplier provided contracts, wording in their PCN Schedules or in some cases, leaving the arrangement completely undocumented. In reality these sub-contracts are critically important in managing the risks for member practices, as a service delivery problem with a sub-contractor can lead directly to a breach of the GMS/PMS/APMS contracts of all the member practices. Having a poorly drafted or non-existent agreement might itself constitute a breach, since practices are required to include a number of important obligations in all sub-contracts to comply with their own contracts.
With the imminent transfer of responsibility for Enhanced Access, many PCNs will be looking to continue this service with the current providers, at least for the time being. This arrangement will also be a sub-contract and it may not be possible to continue the service provision in exactly the same way as before due to regulatory constraints. As a minimum however, a proper sub-contract should be put in place, and for those who have not already done so, the new NHS template PCN sub-contract would probably be a good starting point.
PCNs should bear in mind however that the published document is just a template, and like all templates it needs to be populated and tailored to the particular situation. It also needs to be amended to reflect the different requirements of each party: put bluntly, practices will want to ensure that as many of their risks as possible are passed on the sub-contractor, and the sub-contractor will want to achieve the opposite. It is important that this is taken into account when completing and negotiating the agreement. It is important to remember that, unlike GMS or PMS contracts, PCN sub-contracts are negotiable, need to be negotiated with the supplier, and the template might not suit all circumstances.
Whether or not you use the new template as a starting point, we would strongly recommend that you take specialist advice on all sub-contracting arrangements before entering into them.
For further information on sub-contracting or on any other legal issues, please contact Nils Christiansen on 01483 511555 or email enquiries@drsolicitors.com
News
Integrated Care Systems Consultation: Very little time to respond
NHS England recently issued a consultation on significantly extending the role of Integrated Care Systems (ICSs) in the NHS. The proposals are very far reaching for Primary Care as well as other NHS providers, and the consultation is set to close on 8 January 2021 so time is short.
What are the Proposals?
ICSs have been around for a couple of years now, and bring together CCGs, Trusts, Councils and other NHS Organisations to ‘take collective responsibility for managing resources, delivering NHS standards, and improving the health of the population they serveâ. To date ICSs have been collaborations between existing organisations rather than creating anything new.
At heart, the proposals in the consultation paper are to put the ICSs on a firmer footing by introducing new legislation. There are 2 options presented, and it should be noted that ‘Doing Nothing’ is not an option. The implicit conclusion must be that the current organisation of the NHS in England is no longer considered fit for purpose. The options are:
Option 1: a statutory committee model with an Accountable Officer that ‘binds together’ current statutory organisations
Option 2: a statutory corporate NHS body model that additionally brings CCG statutory functions into the ICS.
There is a clear preference in the paper for Option 2. Under this model the current GP-led CCG model would disappear and CCG functions would move into ICSs. ICSs would instead be governed by a board consisting of representatives from the ‘system partners’, including, as a minimum, representatives of NHS providers, primary care and local government.
Under Option 2, ‘many commissioning functions for which NHSE is currently responsible could be transferred or delegated to the ICS’. Critically, it also anticipates allocating ‘combined population-level primary care, community health services and specialised services population budgets to ICSs under this option. There is no doubt that these proposals are very far reaching and, if adopted by the government, will see a radical change to the NHS in England. They will also open the door to a very different role for primary care and we will analyse these changes in a separate blog.
How to respond?
The Consultation poses 4 questions, and asks for responses by 8 January 2021. The questions are all framed as ‘Do you agree thatâ’ so you will need to be clear in your answers if you actually disagree with any of the statements. The four questions are:
1. Do you agree that giving ICSs a statutory footing from 2022, alongside other legislative proposals, provides the right foundation for the NHS over the next decade?
2. Do you agree that option 2 offers a model that provides greater incentive for collaboration alongside clarity of accountability across systems, to Parliament and most importantly, to patients?
3. Do you agree that, other than mandatory participation of NHS bodies and Local Authorities, membership should be sufficiently permissive to allow systems to shape their own governance arrangements to best suit their populations needs?
4. Do you agree, subject to appropriate safeguards and where appropriate, that services currently commissioned by NHSE should be either transferred or delegated to ICS bodies?
Quite how NHSE expects to receive carefully considered responses to such far-reaching proposals in a tight timescale in the midst of a Covid pandemic, during the flu season, and over the Christmas period is not explained. Although we would obviously recommend that readers respond by 8 January if they can, we would suggest that if you would like to respond but feel that the deadlines are too tight, as a minimum you notify NHSE of this so that later representations may possibly be considered.
If you wish to discuss the impacts of any of these changes on your practice, PCN or federation, please contact Nils Christiansen on 01483 511555, info@drsolicitors.com
News
FREE: DR Solicitors Covid Collaboration Agreement Template
As a small token of our appreciation for the commitment shown by everyone in primary care throughout the pandemic, we have produced a DR Solicitors Covid Collaboration Agreement template which is free to download here.
Our template is based on the NHS national template which many of you will already be familiar with, but with recommended amendments and guidance notes to assist when drafting. As with any template, you will still need to apply some thought when completing it, but this will hopefully enable more PCN Groupings to feel confident about completing their Covid Collaboration Agreement themselves.
We have sadly lost many GP clients to Covid during 2020, and they have of course left behind families and local communities who miss them greatly. We hope that by sharing some of our knowledge in this way we can play a small part in bringing this pandemic to an end as quickly as possible. Thank you to all of you from everyone at DR Solicitors.
News
The Covid-19 Vaccination Collaboration Agreement
The Covid-19 Vaccination Collaboration Agreement: Aim for Pragmatism not Perfection
The deadline for GP practices to commit to the Covid-19 Enhanced Service specification was midnight on 7 December. Signing up committed Practices to work together to deliver the vaccine in ‘PCN Groupings’, and to sign ‘Covid-19 Vaccination Collaboration Agreements’.
Covid-19 Collaboration Agreements must be signed by all member practices before administering the vaccine, so most PCN Groupings have less than a week to perform this next step.
NHS England has published a template Covid-19 Collaboration Agreement, but the document is 9000 words long and includes nine mostly blank Schedules for practices to complete.
Since the Covid-19 Collaboration Agreement will create a binding contract between practices it would normally be advisable to seek legal advice before signing it. But with over 1250 PCN Groupings across the country and less than a week to go this will be impractical for most. So what should practices do?
The key is to be pragmatic. There is not enough time to create a perfect contract, so focus on the most likely problem areas. These are money (Schedule 5), decision making (Schedule 7), and indemnities (Clauses 34-40 as well as Schedule 4.1 Clause 10).
Where a PCN Grouping has an identical membership to an existing Primary Care Network (PCN), it should be possible to leverage the current PCN governance and cross-refer the collaboration agreement to a well-drafted PCN Agreement. This will greatly simplify the process.
Where PCN Groupings are not identical to PCNs, or existing PCN governance is poor, it will be more difficult. These Groupings will essentially have to create a new PCN from scratch over the next few days, which is a near-impossible ask. These Groupings may simply have to ‘agree to agree’.
In the end the Covid-19 vaccine needs to be delivered regardless of any contractual niceties. You should obviously try to agree as much as you can this week, but focus on the most contentious points and write down whatever has been agreed. You may also want to expressly agree that you will revisit any contractual gaps once vaccination is underway, and set out the process for doing this.
With a little luck and goodwill, no Covid-19 Collaboration Agreement will ever be relied on in a dispute between the parties. Whilst contracts are important public health is vastly more so, and we are all hugely indebted to our primary care clients and everyone in our NHS for your enormous dedication and sacrifice through this difficult time. Thank you and good luck with administering the vaccine over the coming months.
If you would like to discuss any particular concerns regarding the Covid-19 Collaboration Agreement, then please don’t hesitate to contact Daphne Robertson at d.robertson@drsolicitors.com or call 01483 511555.
News
Healthcare Professionals: be careful what you indemnify
Healthcare Professionals – be careful what you indemnify
With the increase in collaborative working and working at scale it is becoming common for the owners of a primary care practice to be asked to provide indemnities, say in a sale or purchase contract or in a merger agreement. But what does giving an indemnity actually mean, and what are the risks to you?
What is an indemnity?
An indemnity contract arises when one person takes on the obligation to pay for any loss or damage that has been, or might be, incurred by another person. It is therefore a promise to make a future payment.
Why might you be asked to give one?
Over the centuries the English Courts have developed common law rules for assessing liability for breach of contract. These rules attempt to strike a fair balance between the interests of the party in breach and the party which is the victim of the breach. The factors which determine such balance include remoteness of causation, foreseeability of loss and mitigation of loss. By asking you to give an indemnity, the other party is attempting to move the balance in their favour.
A 1996 judgement by Lord Hoffman explains the difference in assessment of damages by common law rules and by indemnities:
“A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee.”
Using the Court’s common law rules for assessing liability, there would have been no liability against the doctor because, although they were negligent, the negligence hadn’t been a factor in the subsequent injury, which was caused by a mountaineering incident unrelated to the knee problem.
If there had been an indemnity in place the Courts might well have found the doctor liable not only for the injury but also for the costs of the expedition, the rescue and all the medical treatment. This is because if the doctor had made the correct diagnosis the mountaineer would never have gone on the expedition in the first place, and therefore wouldn’t have suffered the subsequent injury, paid for the expedition or needed to be rescued.
So should indemnities ever be accepted?
There are certain areas where they’ve generally become accepted by lawyers as being appropriate – such as in a Practice merger and relating to TUPE transfers. Typically, the disposing practice agrees to indemnify the acquiring practice for any employment claims arising during the period before the transfer.
Legal advice should always be sought before binding yourself into an indemnity. A good solicitor would review the wording of the indemnity to ensure it is not unduly onerous. For example, in the case of TUPE transfers, an indemnifying practice should retain the right to defend and settle the claim itself, rather than simply committing to pay whatever is being asked of them by the other party.
Conclusion
Negotiation of contracts generally has little to do with what’s fair or unfair and much more to do with the negotiating strength of the parties. Often any party of whom an indemnity is requested is in such a weak bargaining position that they find it difficult to resist the request.
Although it’s easier said than done, it’s always better to negotiate from a position of strength. In the context specifically of GP practice mergers, if you can see a time in the next few years when it’s going to be necessary to find someone to take over your practice, do it sooner rather than later and try to keep a ‘Plan B’ in the background throughout.
If you have any questions about indemnities or any other queries relating the running of your primary care practice, please don’t hesitate to get in touch with one of our specialist team of expert solicitors. Please call 01483 511555 or email d.robertson@drsolicitors.com
News
Is your PCN Agreement fit for the new GP Contract
The new GP Contract for 2020/21 was recently published. Unsurprisingly, it contained a big emphasis on Primary Care Networks (‘PCN’s). It is becoming increasingly clear that PCNs are here to stay, and a significant share of future monies to General Practice will be routed through PCNs. There are already more additional PCN roles which have been set out in the new contract, and it is a reasonable expectation that by 2025 an average PCN will be responsible for managing costs of around £1m. With so much money at stake, good governance will be critical.
The role of the PCN Agreement
The PCN Agreement is best thought of as the ‘constitution’ of the PCN and it is thus central to good governance. Its principal role is to describe the purpose and membership of the PCN, how decisions will be made, what key control processes will be in place, how disputes will be resolved, and how members can join and leave. More operational matters which are not permanent and can change frequently (such as role descriptions and detailed costs) are best dealt with in a more flexible way as part of ongoing PCN management.
Characteristics of a good PCN Agreement
A well drafted PCN will have a number of key characteristics, and it is worth checking to see how many of these yours has:
1. It should be unambiguous. The PCN Agreement is a legally enforceable contract and you must be confident that you will be able to rely on it in court. Vague statements like “VAT requirements are still to be clarified” are not terms that you would want to see in a constitution or indeed any legal document. Any member practice incurreing PCN costs or liabilities will want to be sure that these can be identified and recovered – through court action if necessary.
2. It should set principles, but not all the detailed rules. For example, one principle is likely to be that all PCN related costs are shared costs, probably shared by list size. The major cost categories will be defined, but the specific costs associated with each role (like an employee’s salary and associated overhead) plus any changes to the default allocation methodology will be agreed on a case by case basis as these will differ for each role. This means of course that it is also critical to document the ongoing management decisions of the PCN
3. It should be easy to read and not full of legal jargon. PCN Members and managers need to be able to understand the rules that have been set, without having to call a solicitor every time they have a question about them.
4. It should be robust but flexible. It needs to ensure that some things are very hard to change, but other things are much easier. This combination of robustness and flexibility is one of the hardest things to achieve, and many PCNs will have erred too much on the side of caution by requiring that all decisions are unanimous. We are of the view that there are normally only a couple of things which are so fundamental that they would require unanimity.
5. It should incentivise members to participate. This is best done by making it hard to veto decisions, but permitting individual practices to opt out of particular services if they so wish.
6. It must deal with 2 levels of governance: How the Core Network Practices deal with the DES monies, and; how the wider membership deliver more integrated services to the patient population. We have seen too many PCN agreements which only deal with the first of these.
If you are in any doubt about the quality or fitness of your PCN Agreement, we would be happy to provide you with a free, no obligation assessment of it. If it needs improving we can either recommend changes, or provide you with a new, comprehensive and bespoke PCN Agreement for a very competitive fixed price.
For a free initial chat about this or any other legal concerns you might have, please contact Nils Christiansen n.christiansen@drsolicitors.com or Daphne Robertson d.robertson@drsolicitors.com or call us on 01483 511555.
News
Opportunities and Challenges of using limited companies for NHS primary care
Practices have, in principle, always been able to use a limited company as a business vehicle, but few have done so because it requires the consent of NHSE to migrate the core contract into the company. We’ve noticed a recent increase in the number of practices successfully persuading NHSE to provide consent, so we have set out in this blog some of the opportunities and challenges associated with running the practice through a limited company.
Why convert?
Most obviously, running the practice through a limited company limits your potential liability to the capital which you have invested in the company, plus any undistributed retained profits. This can be attractive to partners concerned about the unlimited liability in an ordinary partnership.
Because a limited company separates out ownership and management (shareholders and directors), senior staff can have a management role without needing to contribute any equity or take any ownership risk. Company directors do not need to be shareholders, so are free to manage the business without putting any personal capital at risk. Likewise, the shareholders can put in capital, but do not need to have any day to day involvement in the practice.
There can also be tax and pension advantages with limited companies. These depend on individual circumstances and advice should always be sought, but they include the ability to target a particular income number to manage your tax liabilities and ensure that you do not exceed the annual pensions allowance. Other tax reasons include the different tax structure for ltd companies and certain tax allowances which are only available to limited companies.
Differences between a company and a partnership
In a company, all staff including the directors are employees and therefore have employment rights. The partners in a partnership are self employed and have very limited employment law protection.
Companies have to make certain information publicly available, such as their accounts, the company constitution, the directors and people with a significant interest in the business; whereas in a partnership, everything is confidential.
Limited companies have no concept of capital accounts for each shareholder. As a consequence, there is no obvious way to ring-fence an individual’s capital or ensure that they are able to withdraw it upon leaving the practice. This needs to be thought about carefully from the outset if that is what you are seeking to do.
There is no automatic mechanism for expelling a shareholder from a company. In a partnership you can expel a partner, but you cannot normally take away a person’s shareholding.
Partnerships dissolve automatically on the retirement of any individual unless the partners agree otherwise, which is one of the main purposes of a partnership agreement. A limited company, by contrast, continues indefinitely until somebody decides to wind it up. This means that once a GMS/PMS contract and a surgery building are held by a limited company, they do not need to be varied as partners/shareholders come and go.
Conclusion
Now that NHSE are becoming more open to limited companies, we expect to see their use in primary care increase significantly. However, GPs should be aware that there are major differences between partnerships and companies, and they should take advice from specialist accountants, solicitors, and their bank and IFA before attempting to make the change.
For further information about the use of limited companies, please contact Daphne Robertson, d.robertson@drsolicitors.com or Nils Christiansen n.christiansen@drsolicitors.com
News
The NHS Long Term Plan: How will GP practices be impacted?
There is a tendency when new plans come out of the NHS for people to say they have seen it all before. Would this be a wise response to the Long Term Plan?
Pleasingly, there is an acknowledgement of the many issues in primary care and a commitment that investment in primary medical and community services will grow faster than the overall NHS budget. Spend should be at least £4.5bn higher in 2024, but the extra money will come with strings attached. If applied consistently, this will mean further change is coming for many GPs in England.
The Network Contract
A new ‘Network Contract’ will route the additional monies and will also incorporate local enhanced services currently commissioned by CCGs. This Network Contract will be in addition to existing GMS, PMS and APMS contracts. ‘Primary Care Networks’ (PCNs) will be responsible for these contracts and will typically cover 30-50,000 patients. Each network will be responsible for expanded community multidisciplinary teams along the lines of the Integrated Care Vanguards. The obvious question is, who will actually hold (and deliver) these contracts? In some parts of the country GP Federations are sufficiently developed to do so, and could then subcontract services to member practices or to other service providers as appropriate. In other areas super-partnerships are sufficiently large and geographically contiguous to do so, though they may be concerned about using their unlimited liability partnerships to do so. Elsewhere again, it is possible that existing community health providers may look to lead.
What is clear is that the Network Contract is supposed to facilitate ‘integrated community-based health care’ and all new money in primary care will flow that way. We are told that practice participation will be voluntary, but it is hard to see how practices will remain financially viable in the medium term if they do not participate.
Online GP consultations
Digital-first primary care will become a new option for every patient. Over the next five years every patient in England will have a new right to choose telephone or online consultations instead of face to face consultations. The plan states this will be ‘usually with their own practice or, if patients prefer, with one of the new digital GP providers’.
The plan goes on to say that a new framework will be created for digital suppliers to offer their platforms to primary care networks on standard NHS terms. It is therefore unclear whether the digital providers enabling online consultations are supposed to be suppliers of services to networks of GPs, or will be able to hold patient lists themselves.
Our recommendations
It has been clear for some time that any increases in funding will go to practices working at scale. Scale working has now been formalised into PCNs . In those areas of the country where there is already an obvious PCN in existence, the immediate focus should be on working out which approach to use for online consultations. Where there is not currently any single obvious PCN, practices would be well advised to reconsider their local joint working arrangements: be that though through federations, mergers, primary care homes or the like.
Remember that the new Network Contract will need to be held by an appropriate business vehicle (there is no indication yet of any restrictions on who could hold them) so you will need to consider who will be the local prime contractor.
We would be delighted to discuss how we can help practices and PCNs prepare for the imminent changes. Please contact Nils Christiansen in the first instance for a no obligation conversation about how we can assist.
News
The advantages and disadvantages of LLPs and Mutuals in Primary Care
There are currently only four types of business vehicle permitted to hold GMS contracts. These are:
- Individual GPs (who have unlimited liability)
- Unlimited liability partnerships including at least one GP (the most common structure)
- Limited partnerships including at least one GP
- Companies limited by shares including at least one GP shareholder
There are statutory mechanisms enabling a GMS contract to be transferred between types 1, 2 and 3, but no statutory mechanism enabling a transfer to or from type 4. The rules for PMS are slightly different, but given the right of PMS contractors to return to GMS the difference is not material for the purposes of this note.
The current options for practices to limit their liability are restricted. They could transfer a GMS contract into a limited partnership, but these entities require at least one partner to have unlimited liability for all the risks of the business. Since only a subset of the partners have limited liability, this would create obvious difficulties in a GP partnership. Using a Company limited by shares would limit the exposure of all the shareholders to the value of their capital, but this is not normally available to practices as there is no mechanism to transfer the GMS contract into the company.
Limited Liability Partnerships (LLPs)
LLPs retain the central feature of partnerships, being that partners both own and manage the business. In a company, by contrast, ownership and management are split between the shareholders and directors. Partnerships are often the preferred business vehicle in the professions because the alignment of ownership and management encourages close collaborative working. This in turn facilitates the transfer of tacit skills and good risk management on which the reputation of the profession relies.
LLPs bring several advantages over other kinds of partnership:
- LLPs are registered legal entities and are therefore capable of contracting in their own name. This means that important assets such as the surgery freehold or lease can be held in the name of the LLP rather than individual LLP member’s names. When a member joins or leaves an LLP, there is no need to change the lease or the land registry title, because the member is not named on it. Discussions amongst members would then change from being whether or not to ‘buy-in’ to the surgery, to whether or not to contribute capital to the LLP.
- The liability of LLP members is limited to their capital contribution. There are ways this can be circumvented such as by a mortgagor requiring personal guarantees, but members know that their liability is limited except where they have agreed otherwise. By contrast in traditional partnerships all partners have unlimited liability except where they have agreed to limit it. The most common ways of doing so are to take out insurance (such as professional indemnity cover) or to have contractual limits to liability in service contracts. In this way it is possible to create structures which arrive at similar levels of risk, but they start from opposite extremes
- In an LLP a member is not responsible or liable for another member’s misconduct or negligence. This is an inevitable consequence of the limited liability status since this removes the joint and several liability inherent in an unlimited liability partnership. Some argue that this can reduce the level of collaboration between LLP members, but this has not generally been the experience of other professions.
- There is considerably more formality around LLPs. Unlimited liability partnerships can be created and dissolved with no documentation, whereas LLPs cannot exist unless they are registered at Companies House. This increased formality eliminates some of the uncertainty around whether a partnership has been created or dissolved, which is at the heart of many GP partnership disputes. However, Companies House requires LLPs to file and disclose information about their membership and accounts which is normally kept private in an unlimited liability partnership.
Mutuals and Social Enterprises
There are a variety of legal structures which enable employee and community ownership of, and involvement in, a business. These are usually known collectively as social enterprises. The only form of social enterprise which is currently open to primary care is a Community Interest Company Limited by Shares (“CIC-CLS”). Since the same ownership rules apply to a CIC-CLS as to an ordinary company limited by shares, it is not possible to use it to broaden employee and community involvement in the practice.
If other social enterprises were to be permitted to hold GMS and PMS contracts, they would most likely include Companies limited by Guarantee (“CLG”), Community Benefit Societies (“BenComs”) and Industrial Provident Societies (IPS).
The primary difference between the various different types of enterprise comes down to who they ultimately seek to benefit:
- Partnerships and LLPs look to provide financial benefit (profit) for the partners/members
- Companies limited by shares look to provide financial benefit (profit) for the shareholders
- CLGs look to provide financial and non-financial benefit to a defined purpose and are often charities
- BenComs look to benefit the community
- IPS’s seek to benefit their members
If social enterprises were able to hold GMS and PMS contracts, they would have similar advantages to LLPs. They all generally have legal personality and so can hold assets and contracts, they have limited liability by default, and they are regulated and must be registered. Social enterprises come with the additional disclosure requirement beyond those of LLPs, to ensure that their social purpose is being complied with.
A further possible advantage with social enterprise is that it might make it easier to integrate across other elements of healthcare, since it would be easier to involve the care and voluntary sectors in a social enterprise such as a BenCom.
Transitioning issues
If LLPs and mutuals were permitted to hold GMS and PMS contracts, this would not resolve the question of how to move existing GMS and PMS contracts into them. As LLPs and mutuals are distinct legal entities, they would suffer from the same procurement problem as Companies limited by shares currently do. This is that procurement law states that public bodies must tender all contracts above a certain value. Because GMS and PMS contracts do not generally have a fixed term, their cumulative value normally exceeds this threshold. Since moving a contract from one legal entity to another is technically a termination and re-grant, the re-grant would by default have to occur through a tender process. There are exceptions to the public tender rule, but it is a matter of some debate whether these exemptions can be applied to GMS and PMS contracts.
If you have any questions or for more information, please contact Nils Christiansen on 01483 511555 or email n.christiansen@drsolicitors.com
News
Integrated care provider contracts – opportunity or threat?
NHS England is currently consulting on a new Integrated Care Provider contract (ICP). This seeks to commission services on a whole population basis by providing primary, secondary and possibly tertiary health and care services together through one contract. This would result in one single provider being responsible for the majority of healthcare delivered to a locality. Here, we share our views on the impact the ICP contract could have on GP practices.
As currently drafted, it is a condition of the ICP contract that primary care services are included in the scope of the contract. It allows for two routes to delivery: partial integration or full integration.
1. Partial integration
Practices will retain their current GMS/PMS contracts and independent status, but will sign a legally binding ‘integration agreement’ with the ICP provider to support them in the delivery of integrated services.
The idea with this model is that it doesn’t fundamentally change the way that primary care operates today, so is likely to be much easier to achieve. Practices simply formalise the obligations on all parties necessary to achieve a better functioning, more integrated healthcare system, and agree to share the risks and rewards.
There is an implicit assumption by NHSE that a local Trust will hold the ICP contract and that GP practices will be happy to sign the integration agreement with the Trust. In reality, practices would be well advised to obtain legal advice before signing such an agreement, since the current template contains some surprising clauses, such as unlimited liability in the event of certain things going wrong. Any changes should be negotiated with the ICP provider during the tender process, as signed integration agreements are a pre-requisite to winning the ICP contract so this is when practices would have most negotiating leverage.
2. Full integration
In this variant, GP practices would ‘suspend’ their GMS/PMS contracts and instead either be acquired by the ICP provider or subcontract to the ICP provider on terms to be agreed directly between the parties.
This is clearly much more radical than partial integration as it moves primary care towards being a salaried service. There is provision in the standard ICP contract for salaried GPs to be on BMA model terms, but this is unlikely to be much consolation for those that wish to remain as independent contractors. If GPs find that the new arrangements do not work, there is an option to un-suspend their GMS/PMS contracts, but it is not, at present, clear how this would work, since most practices in an integrated model will cease to exist as independent businesses in any meaningful sense.
Other significant changes in a full integration model include:
- Practices will no longer negotiate with NHS England, CCGs or Local Authorities. They will either be subsumed into, or contract with, the sole ICP provider. This largely removes the statutory role of LMCs.
- Whilst there appears to be an assumption that Trusts will usually be the ICP contract holder, there is no reason why this should be the case. Indeed, CCGs will be obliged to offer the ICP contract for competitive tender. This puts primary care in the driving seat, since it is not possible to win an ICP contract without the support of primary care. This makes it highly possible that well organised GP federations or super-partnerships could successfully tender in due course for ICP contracts, or agree to partner up with other public or private partners to do so. Hospitals and other community care providers would then have to subcontract from GPs, not vice versa. This would be an interesting situation as it could provoke accusations of privatisation.
Conclusion
The imminent arrival of ICP contracts has already prompted change up and down the country. We’ve seen hospital Trusts acquiring an interest in local GP practices, which could be a first step towards a fully integrated model. In some areas, the whole locality is actively preparing for the partially integrated model.
One thing is clear, and that is the fully integrated model in particular would represent an enormous change to the way primary care has always worked. Whilst change always presents an opportunity for some, it will inevitably present challenges to others.
If you would like to discuss the ICP contract or any other matters with one of our specialist solicitors, please contact Nils Christiansen on 01483 511555, n.christiansen@drsolicitors.com for an initial chat.