Can a partner work outside of the practice?
The question of whether a GP partner can work outside of his or her practice, and under what constraints, is a common one. A survey by Pulse reveals GP partners have seen their pay drop by an average of 4%, so topping up earnings with private work can be an appealing option.
Typical scenarios include:
- A part time partner who wishes to work elsewhere in their remaining sessions
- A full time partner who wishes to work elsewhere during their annual leave
If you have a Partnership Deed
For practices with a Partnership Deed, it should clearly state what the agreed rules are, along with all associated obligations and restrictions. It should also make clear the implications of breaching such obligations, for example potential financial penalties and what may ultimately be grounds for expulsion.
A well drafted deed should include:
- A clause requiring that the partners need to give their approval for any outside work to take place
- Limitations on any such work, including the number of hours that can be done, the location, the type of work, etc
- The need to pool any unapproved outside income
- The need for any partner working elsewhere to pay back a proportion of their medical defence cover
- An obligation to act in the best interests of the partnership at all times
One area that can cause some confusion is when senior employees are called ‘partners’ – one example being a ‘salaried partner’. In these instances, you will need to refer back to the individual’s employment contract. (You can read more about the differences between a salaried and fixed share partner here – Salaried vs Fixed Share Partners).
What happens if you bend the rules?
Another area where partnerships can sometimes run into problems is when they have previously allowed partners to work elsewhere in breach of the Partnership Deed. In these cases, it is unlikely that these clauses can then be relied upon in the future.
The practice may be deemed to have varied the deed and it would be wise to seek legal advice on how best to move forward.
If you don’t have a Partnership Deed
If no deed is in place, then the answer falls to the 1890 Partnership Act. While the act itself has little to say on the subject of working outside of the practice, it does state that partners cannot compete with the partnership and must act in good faith at all times.
It is unlikely that these obligations would be breached by a moonlighting partner but it would need to be judged on a case by case basis. It would also be very difficult and expensive to try to enforce these obligations.
Our recommendations
The best protection for your business will always be to have a Partnership Deed in place that you can rely on and which clearly sets out all obligations and sanctions. If you don’t have a deed, or it is lacking, or out of date, then seek the advice of an experienced legal team.
For more information, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
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What can go wrong with a surgery move or redevelopment?
Making the decision to move to a new surgery, or to redevelop your existing surgery building, is a big step. In fact, it is likely to be one of the most complicated legal transactions a practice will ever undertake, carrying significant financial and legal risks.
Once you have successfully secured a share of the NHS premises development budget, you need to think about managing this complicated process.
There are too many differing scenarios for us to cover them all in this blog and not all of the issues we mention will be relevant to you, but we highlight below some of the more common problems we encounter during transactions of this nature.
1. Partnership changes during the process: change within any partnership is reasonably common, but in this situation it can create confusion as to who has certain obligations and who doesn’t. What obligations does an incoming partner take on, and will a retiring partner be released from his or her obligations? In addition, if you have agreed to sign up to a new lease, there is a risk that the number of partners may drop below the minimum number of tenants specified in the lease.
2. Signing a development agreement without District Valuer (DV) approval: the premises funding approval process must be followed to the letter. One common misconception is that DV approval can be sought once the building is up and you are ready to sign the lease. In all likelihood this is too late in the process as you are already committed.
3. Lack of understanding of the total lease costs: this is a very common issue, particularly when it comes to service charges: what non-rent costs are payable, and how will they be financed?
4. Using a limited company to try and manage risk: some practices try to manage their risks by putting the property or lease in a limited company. This is not something you should do without specialist advice, as it often results in significantly higher cost and no risk reduction.
5. Misunderstanding the difference between an agreement for lease (AfL) and a lease: the AfL binds the signatories to signing a lease – subject to certain conditions being met. All development works are therefore associated with the AfL and it can often be a year or more before they are completed. Some practices sign the AfL thinking they will be able to negotiate the lease at a later date, but this is not the case.
6. Overlooking the partnership agreement: it is important to bind all partners into the obligations under the lease and AfL. Since only a subset will be signatories of these documents, it is critical that the risk and obligations are properly shared through an up to date partnership deed. Remember that occupation of the surgery is a vital feature of the partnership so these documents must work properly together.
7. Not seeking advice from a specialist surveyor: a specialist surveyor needs to be involved in any surgery development, to ensure all works are compliant with the regulations. Otherwise, the funding will be put at risk.
8. Failure to properly consider tax: there are many potential tax savings associated with a development, but it requires careful consideration and planning if these are to be maximised. This will need to be done far in advance.
Our recommendations
In certain circumstances, it can make sense for a practice to work on resolving an issue itself – but developing a surgery, or moving premises is not one of them!
With the amount of complexity involved and so much at stake, we would advise any practice considering development, to enlist the support of an experienced team, including a specialist solicitor, surveyor, and tax adviser. That way you can ensure you have everything covered and are fully compliant and protected.
If you need help in this area, we are always happy to introduce clients to the extensive network of contacts we have built up, to help ensure the success of your practice.
For more information, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
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Are you in breach of your GMS or PMS contract?
A GMS contract is a legally binding agreement made between a GP practice and NHS England (NHSE) that sets out certain obligations for both parties. It is the most important asset a practice will hold.
Running to over 270 pages plus lengthy appendices, it is a substantial and complicated document, both to navigate and understand.
Unless a practice has read it from beginning to end, and has very careful monitoring in place, it is likely that most practices will be in breach of their obligations at some point or another – in many cases, without realising.
So, what can practices do to protect their contracts?
Dealing with a breach
There are many reasons why a practice may be in breach of their GMS contract. Some are minor and some more serious.
If you do become aware of a contractual breach, you should rectify the problem as soon as possible and put procedures in place to ensure it doesn’t happen again. You should then assess the impact of the breach.
An example of a minor breach might be a failure to keep the practice leaflet or website up to date. There is not normally any obligation to inform NHSE of these minor breaches, although a practice would be obliged to provide such information if requested. If NHSE were to find out they would probably issue a breach or remediation notice. Once a practice receives two or more of these, NHSE become entitled to terminate the contract on notice, subject to a cumulative impact test.
For more serious breaches, you may be obliged to notify NHSE. In particular you should notify NHSE as soon as reasonably practicable, of “any serious incident that, in your reasonable opinion, affects or is likely to affect your performance of your obligations under the contract.”
Whilst this leaves room for ambiguity, a breach would certainly be considered ‘serious’ if it put patient safety at risk. An example of this might be a failure of the vaccine fridge, combined with inadequate records to prove that the no vaccines had been compromised.
Once NHSE becomes aware of a serious breach, they would consider whether to deal with it under the breach and remediation notices procedure outlines above, or possibly to terminate the contract forthwith. They could only do the latter, however, if they could show that patient safety was at serious risk.
There are particular notification requirements for breaches where:
- a contractor is no longer eligible to hold a contract – for example, if there is no General Practitioner left in the partnership
- if a partner becomes bankrupt, convicted of a serious criminal offence, is disqualified or suspended, or if a partnership is dissolved
In these instances there is a requirement to notify NHSE, who then need to consider contract termination (although there is not necessarily a requirement for them to terminate).
It is worth noting that while we are talking about GMS contracts in this blog, PMS contracts usually – but not always – have very similar clauses so always refer to your individual contract to be sure.
Our recommendations
We advise practices to familiarise themselves with their core contracts and ensure they understand their obligations. Put systems in place to help monitor compliance and if a breach occurs, attempt to remedy the situation as soon as possible and put processes in place to prevent it happening again.
In the case of more serious breaches, for which practices are obliged to inform NHSE, you should let them know as soon as you can, include an impact assessment, and show that procedures have been put in place to reduce the risk of re-occurrence.
The complex nature of the core contract means it is not always clear whether you might be in breach, nor whether you need to notify NHSE. If you are in any doubt about your compliance, the severity of a breach, or if you have received a breach or remediation notice, then always seek the advice of an experienced legal team.
For more information about managing a breach, or any other related issues, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
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Managing conflicts of interest when you’re an officer of a GP federation
As GP federations have become more established, we are receiving an increasing number of enquiries about the role of the federation’s officers.
Most GP federations are organised as limited companies, with shares owned by the member practices. The role of the federation is generally to secure and manage healthcare contracts for their area, which will typically be delivered by some or all of the member practices.
Like any other limited company, a federation and its activity will be overseen by a board of directors. These officers will be governed by certain statutory and fiduciary responsibilities, which will guide how they need to act in relation to the federation and its member practices.
Where it gets complicated is that the directors of a GP federation are typically also partners in a member practice, as well as shareholders in the GP federation. Each officer, therefore, needs to fulfil a number of roles at any one time, each of which carries its own legal and contractual obligations, and sometimes these may conflict.
Another consideration is tax. With income from the different roles being taxed in different ways, it is important to be able to demonstrate that money flows are based on the needs and obligations of the role, not as a way to avoid tax.
Responsibilities of a Director
Company Directors are the agents appointed to act on a company’s behalf, and have statutory responsibilities to act in the best interests of the company as a whole. The statutory responsibilities of a director are set out in the Companies Act 2006, and it is important that all directors are familiar with these. Some of the key points are to remember that a director must act within the powers delegated to them, must do so with reasonable skill and diligence and must avoid conflicts of interest. The bar is not set especially high, but directors should be aware that failure to meet these obligations can result in a variety of sanctions against them personally. Other responsibilities of the directors may be set out in the company’s Articles or in an agreement between the shareholders. Directors of a limited company are employees and are paid through the payroll, and if a GP federation is trading the directors will need to commit some time to it in order to fulfil their responsibilities.
Responsibilities of a Shareholder
The shareholders are the owners of the GP federation and will usually have committed some of their own capital to the business. Shareholders should provide strategic control over the company and guidance to the directors. The shareholders act through General Meetings, and have a small number of statutory powers such as removing directors and changing the name of the company. Any other powers retained by the shareholders are normally set out either in the Articles of the company or in a shareholders agreement. These documents are particularly important where the shareholders and directors are not identical. Since the ‘real’ shareholders of a GP federation are normally all the partners in the underlying practices (rather than the ‘nominee’ shareholder on the share register), it is rare for a GP federation to have identical ‘real’ shareholders and directors. It is important that all the partners understand their role as shareholders, and have a mechanism in place for the nominee shareholder to vote on their behalf. This mechanism is usually set out in a ‘deed of trust’ between the partners in a practice, or within their partnership agreement. Shareholders are not ‘paid’ for any work they do, but they may receive income through dividends on the share(s) they hold.
Responsibilities of a Partner
The responsibilities of partners are as set out in their partnership agreement and the Partnership Act 1890. These can generally be summarised as acting in good faith towards each other and in the overall best interests of the partnership. This means that a partner who is also a director of a GP federation must act in the best interests of BOTH the partnership and the GP federation. Partners are self employed for all income earned through the partnership.
There can be times when these obligations do not align, which opens the door for conflicts of interest to arise.
Conflicts of Interest
Take the example of a GP federation director who is also a partner in a member practice. If a contract is won by the federation to provide a joint service it may be in the interest of the partner’s practice for them to deliver the service, as they would be paid for doing so. However, another member practice may be better equipped to deliver the service or be able to do so more cost effectively. Who should get the work?
Alternatively, a director may find that it is more tax advantageous to be paid as a partner in the member practice, or indeed as a shareholder taking dividends. How should they account for their time spent meeting their obligations as a company director?
Putting steps in place to protect yourself
For any officer, being able to clearly demonstrate how a decision was reached and why you behaved in a particular way is key to managing potential conflicts of interest.
There are steps you can take to do this, including:
- Shareholders’ agreement – this should specify which decisions are to be retained by the shareholders, the terms under which dividends are to be paid, and the mechanisms by which shareholders reach agreement
- Company Articles – these should be checked to ensure they are consistent with the shareholders agreement, as well as any NHS Regulatory requirements
- Directors’ service agreement – each director should have a service agreement describing their role, responsibilities and remuneration
- Partnership agreement/deed of trust – in addition to setting out the ‘normal’ responsibilities in a GP partnership, these documents should explain the role of the nominee shareholder and contemplate the potential conflicts of a GP federation director.
- Minutes – Minutes should be kept of practice partnership meetings, company shareholder general meetings, and GP federation board meetings
Due to the nature of a GP federation, conflicts of interests are almost inevitable. Your best protection will be to understand what each role entails including its statutory and contractual obligations.
Then, by formally documenting each role and process, you will be able to better justify why things happened as they did. You’ll have a way to explain your actions and the context when a conflict arises.
For more information about GP federations, partnership agreements and any other related issues, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
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Partnership disputes – the early warning signs
Partnership disputes can be expensive, time consuming and destructive; not to mention unpleasant for all parties involved.
If you find yourself having to deal with a partnership dispute, the best protection for any practice is to have a valid partnership deed in place.
To help you spot the early warning signs of a potential dispute, we have pulled together a list of some of the most common causes of partnership disputes:
- Underperformance: Partnerships are based on the principles of trust and fairness. Negative feelings can start to creep in, if there is a perception that one partner is underperforming. For example, if they are perceived as not pulling their weight, have a lack of attention to practice management responsibilities, or exhibit poor time keeping and organisational skills.
- Money: Financial concerns are one of the most frequent causes of disputes. They can range from arguments over alleged financial impropriety, to non-property owning partners paying for building costs, the sharing of outside earnings, or the profit share to workload ratio.
- Unacceptable behaviour: Disputes can arise when a partner is considered by others to be behaving in an unacceptable way. Examples of this include: bullying, harassment, discrimination, inappropriate use of computer systems (sometimes even during consultations) and self-prescribing.
- Clinical concerns: Every clinician has a professional obligation to report any clinical concerns they may have. By themselves, these issues won’t necessarily lead to a partnership dispute. However, problems can arise when clinical issues are covered up, reveal a lack of insight, or if they put a partner’s GMC registration at risk.
- Personality clash: Personality clashes can fester for years. Such disputes are usually best dealt with through mediation and the LMC can often help in such circumstances. However, successful mediation requires that the partners in conflict demonstrate insight and work on changing their behaviour, which can sometimes be difficult.
- Sickness absence: When a partner is frequently off sick, or takes a long period of sickness absence, this can contribute towards a feeling that they are not ‘pulling their weight’. A locum can be used to backfill but they will not be sharing any of the management workload, which means extra pressure is felt by the remaining partners.
- Generational differences: Generational interests are sometimes not aligned. For example, a partner nearing retirement may be keen to preserve capital and minimise unnecessary change, whilst a younger partner may be keen to invest in new premises or different working patterns. Disputes of this nature can lead to issues with 24 hour retirement planning, or even age discrimination claims.
- Surgery Premises: Incoming partners are showing less interest in buying into surgery premises than they did in the past. They are also often unwilling to sign up to a long lease. This can cause problems for other partners, who may be keen to move on or retire and are unable to divest themselves of the property interest.
Why your partnership deed is important
A well drafted partnership deed can help minimise the disruption caused by a dispute or avoid the dispute altogether. It will seek to anticipate many of the issues mentioned above and provide an agreed framework for resolving them.
For example, it can state grounds for expelling a partner; document the terms of absences from the practice; ensure that all partners have the right to 24 hour retirement; and specify a dispute resolution process. Importantly, it can also prevent a partnership from being dissolved in the event of a dispute, as this can put the GMS/PMS contract – and therefore the practice – at risk.
Our recommendations
If you are unlucky enough to find yourself in dispute with your partners, then make sure you seek professional legal advice at an early stage. It is important that you know where you stand legally, so you can avoid doing anything which may compromise your position. Fortunately, most partnership disputes will be settled without the need for litigation. In the meantime, please ensure you have a valid and up to date Partnership Agreement.
For more expert advice, download our free guide: ‘Top 10 tips for dealing with partnership disputes‘.
For more information about Partnership Agreements or disputes, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
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Are you overpaying your landlord?
The issue of NHS premises funding is a complex area which is often misunderstood by GP practices. This confusion sometimes results in practices inadvertently overpaying their landlord.If you don’t own your own surgery then you must be occupying it on some form of tenancy basis, – whether that agreement is in writing or not – and you should be receiving rent reimbursement. Here we take a closer look at what rent reimbursement is supposed to pay for, and how you should be managing it.
Understanding rent reimbursement
Rent reimbursement comprises two parts:
- the rent
- a contribution to the repairing and insuring of the building – commonly referred to as the ‘uplift’
The rent element is normally the same as the rent agreed in your lease, and practices will often pay this straight to their landlord. The uplift element will vary, but is usually between 5% and 7.5% of the rent, with the amount being determined by the terms set out in the lease.
The uplift may be paid to the landlord or retained by the tenant, dependant on what is stated in the terms of the lease. This is the element which most commonly gives rise to confusion
The uplift
The uplift is a contribution towards the repair of the exterior and structure of the building, along with the cost to insure it. To determine who should receive the uplift monies, you need to be clear about who is responsible for which aspects of the building.
Some common situations are:
1 – The practice occupies the entire building
If you occupy the whole building, you are likely to have a full repairing and insuring lease. In this situation, you will be responsible for dealing with all the repairs, so the practice should keep the uplift.
If your lease only requires you to repair the internal parts of the building, then the landlord should probably receive the uplift element as part of their rent. They will have responsibility for repairing and insuring the exterior and structure of the building, without any additional costs being passed on to you as tenant. Practices often assume that this is the case when the occupation is undocumented, but be aware that your landlord may see their responsibilities vey differently!
2 – The practice occupies part of a shared occupation building
If you share occupation of a building with other tenants (known as a ‘lease of part’) it is likely that your landlord will be responsible for managing all repairs to the building and will then pass on the cost of these to you through a service charge. In this scenario, you should keep the uplift but regard it as a contribution towards your service charge. Since the uplift is a fixed amount, you may also want to talk to your landlord about capping the level of service charge that can be demanded.
3 – No formal agreement in place
A third scenario, which is relatively common for GP surgeries, is for there to be no written agreement in place but for the landlord to historically have repaired the building. In this case, there is a good argument that the uplift monies should be paid to the landlord. However, in the absence of a lease or other contractual agreement, there is scope for an expensive dispute to develop. A starting point would be to see what you have historically paid over.
4 – Occupying a surgery owned by former partners
Some practices may be occupying a surgery which is owned by former partners. Sometimes the current partners in such practices will receive notional rent and pay that money across to the owners. However, that is a mistake. The correct course of action would be to notify NHS England and move to a formal lease and rent reimbursement. By not doing so you could be putting your premises funding at risk and in extremis NHS England could demand the return of monies paid incorrectly in the past. You are also likely to be paying the wrong amounts of money to the owners and former partners.
Disagreements and disputes surrounding funding can typically come to the fore when a lease is being prepared for the first time and it has historically been unclear who paid for the structural and external repairs to the building. To help you navigate such issues, it is always best to seek the advice of an experienced legal professional.
If you are in any doubt about your practice’s position or responsibilities in regards to funding, repairs and service charges, then please speak to us for some initial advice. Contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
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The dangers of having an out of date partnership deed
The pace of change in primary care has accelerated over the last few years and with so much going on it can be easy to forget to check you have the basics covered.
The Partnership is at the heart of most GP practices, and having a partnership deed that is up to date, valid and fit for purpose is vital if the interests of all partners are to be protected. Yet often a partnership deed may be forgotten, or only thought of, at times of major change or when a dispute arises.
Whilst most GP partnerships will be aware that having no deed at all is extremely risky, failing to keep it updated can also have serious implications.
Further reading: 4 legal issues to consider if one of your GP Partners “Burns Out.”
There are many reasons a deed may go out of date, or even be invalidated. So while you may feel you have everything already covered, if you haven’t looked over your deed recently then it’s probably time you did.
Some of the key issues you need to be aware of are:
1) A new partner has joined
While the retirement/removal of a partner won’t invalidate your current deed, the addition of a new partner does. Once your deed is invalid you are regarded as operating as a ‘partnership at will’. This is about the worst situation you can find yourselves in because it means your service contract and the entire practice is immediately at risk.
2) New income streams
An out of date deed will lack clarity, or won’t even deal with, the distribution of new income streams affecting a modern practice. How partners share any profits and losses is a frequent cause of disagreement, potentially resulting in a very expensive partnership dispute further down the line.
3) The sharing of risk
If your deed lacks clarity about the sharing of any ‘risks’ then it’s time for an upgrade. For example, what will happen if the CQC takes action against the Registered Manager? Does your CQC Manager pick up the liability, or will it be shared in some way by the partnership?
4) Asset valuation
We have seen an increase in the number of disputes arising out of the valuation of non-property assets owned by the practice. Examples include pharmacy shares, GP Federation shares, and even legacies. When a partner leaves, should they be bought out of their share of these assets, and to what extent is their value separable from the partnership? Your partnership deed needs to be clear about what happens in this event.
5) Lack of detail over property ownership
An out of date deed may not deal adequately with issues of surgery occupancy, the rights of the property owning partners, or how NHS Premises Funding and property related costs will be shared. This can be just as much a problem for leasehold as it is for freehold surgeries. Clarity is needed to ensure both owning and non-owning partners are appropriately protected and rewarded.
Futher reading: Beware the ‘Last Man Standing’ issue in GP Practices
To help you assess if your partnership deed is in need of an upgrade, we’ve prepared a checklist for you of some of the key issues that an up to date deed should cover. Take a look and if your deed doesn’t cover these points then it’s time to act and seek appropriate legal advice.
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Is a Mandatory Retirement Age for GP Partners Enforceable?
Many older partnership deeds include a compulsory retirement age for partners, often specified as aged 65. Should a GP wish to continue working beyond this age, annual written approval from the other partners is commonly required.
On the face of it, such a clause is discriminatory, in breach of the Equality Act, and therefore unenforceable. But if you are looking to include the clause in your current partnership deed, or if it is already in your deed and you are considering taking action to enforce it, what are the chances of success?
Case study: A law firm’s business needs vs discrimination
A long-running case regarding mandatory retirement ages for partners has set a precedent for future allegations of age discrimination. The retiree in question was the senior partner at a law firm in Kent, who was asked to retire at age 65 in compliance with the partnership deed. The courts found that in most circumstances, it would be discriminatory to attempt to enforce such a clause. This is consistent with the normal position for employees.
The tribunal did however distinguish the situation for partners, and concluded that in certain circumstances it would be acceptable to enforce a compulsory retirement age where the overall benefits to the business merited doing so: “Any determination has to weigh up the needs of the partnership against the harm caused by the discriminatory treatment”.
The key features of the ‘business benefits’ considered by the tribunal were enabling career progression for junior lawyers and, to a lesser extent, avoiding awkward conversations with ageing partners about their deteriorating performance.
This is in some ways a surprising outcome, since in most progressive law firms aspiring partners are expected to achieve partnership by winning new work rather than simply taking over someone else’s hard-won clients, and because a well-drafted partnership deed should already have addressed issues of underperformance.
Partner retirement from GP practices
Nobody has yet tested the case for mandatory retirement from a GP partnership in law, although we think it is only a matter of time before they do. Whether a judge would arrive at the same decision remains to be seen, but it seems clear to us that there are some significant differences between a GP partnership and a legal partnership.
The career progression argument will have particular resonance for a GP practice, because there is only limited opportunity for younger partners to ‘win new patients’. Also, the question of declining performance is likely to be accorded greater weight. It therefore seems likely that a GP partnership would have an even better likelihood of successfully defending a well structured compulsory retirement clause than the Kent law firm above.
Our recommendations
If you are considering implementing or enforcing a mandatory retirement age, we recommend the following:
- Ensure you clearly document the business reasons for your decision;
- Ensure that the retirement age is applied consistently across all partners and reviewed annually;
- Update your partnership deed to make clear what process is to be followed;
- Do not be tempted to copy someone else’s deed as it will almost certainly be out of date;
- Consider whether you want to tie any compulsory retirement age to the NHS pension age, which will soon be increasing to 68.
Bear in mind that the default position is that such clauses are unenforceable, so if a compulsory retirement clause were challenged a judge would want to see some very sound and consistently applied business reasons before allowing it to be used. The best advice is to simply avoid such clauses altogether, but if you are still keen to include one in your partnership agreement, make sure you seek the appropriate legal advice to ensure it meets the test.
If you or a colleague are planning on retiring soon, or indeed on taking 24 hour retirement in order to trigger your NHS pension, we discuss both matters in our recent article, ‘Planning to Retire as a GP Soon?‘
For more information about GP retirement and any other related issues, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com