Applying for a UMF Grant (Utilisation and Modernisation Fund)? A guide for GP Practices
The NHS Primary Care Utilisation and Modernisation Fund (UMF) provides much needed capital investment to improve the standard of GP practice premises. With more than £100 million earmarked, GP practices are successfully applying for UMF Grant money. But from a legal perspective, exercise care! Understanding the terms of these UMF Grant agreements is critical so you know where liability and risk sits, as well as avoiding funding clawbacks or disputes over property rights.
Why Take Legal advice?
UMF Grants come with strict conditions. No money is free! You need to understand what the terms of the Grant are including risk and liability, the position on clawback, and how the UMF Grant sits alongside any existing bank finance you may have taken out on the surgery premises. Misunderstanding or overlooking certain Grant obligations could lead to serious issues, such as breaches of Grant terms, conflicts with existing lease obligations or mortgages, and difficulties when partners change.
Key Details
The 2025/26 funding round has a focus on projects regarding refurbishing and reconfiguring existing Surgery premises. Technology-only solutions or entirely new builds will not qualify.
There are 3 UMF Grant scenarios – which of these apply to you?
1. UMF Funding exceeds £144,000 and relates to freehold property
Documentation: Freehold UMF Grant Agreement with a Legal Charge, Certificate of Title and a Deed of Priority will be required if the property is already charged to a bank. Note: This can raise practical challenges for GP practices with existing bank lending arrangements if NHS England takes a legal charge over the premises.
2. UMF Funding exceeds £144,000 and relates to leasehold property
Documentation: Leasehold Grant Agreement and Certificate of Title. GP Practices should check whether lease terms permit structural alterations or upgrades and obtain landlord consent where required. Note: that a Surgery lease must be in place to secure the UMF Grant money.
3. UMF Funding is less than £144,000 and relates to freehold or leasehold property
Documentation: Short Form Grant Agreement
What This Means for GP Practices
UMF Grant agreements are legally binding contracts; not simply administrative formalities. They govern how money can be spent, how changes to projects must be approved, and what protections are in place in the event of changing circumstances.
Practical Steps GP Practices Can Take
- Check Property Ownership – review HM Land Registry entries to confirm all current partners are correctly listed, and update where necessary. Ask your solicitor to expedite any pending HM Land Registry application
- Secure Third-Party Consents – obtain approval from landlords and mortgage lenders before starting works.
- Review Your Partnership Agreement and/or Declaration of Trust Deed – ensure they reflect how capital improvements are to be treated between current and future partners. For example, if improvements enhance the value of a surgery building, your Partnership Agreement or Declaration of Trust Deed should make it clear on how this ‘benefit’ is treated if property –owning partners retire and are bought out, or new partners join the partnership and buy-in. The grant money should be treated in the same way as you have historically documented how NHS improvement grants were treated
- Prepare a Compliant Business Case – align your Project Initiation Document (PID) with ICB priorities and national guidance to avoid rejection.
- Grant Agreement Changes – it might say on the front page that the Grant Agreement is not open to negotiation, but it is, so take professional advice early!
The Utilisation and Modernisation Fund presents a significant opportunity for GP practices. By taking legal advice at the outset, practices can ensure they secure the benefits of the Grant money while avoiding costly pitfalls.
How DR Solicitors can help
If you’re a GP practice looking to benefit from the UMF, contact DR Solicitors today to navigate the Grant terms with expert advice.
News
The Leng Review: Implications for Primary Care
The role of Physician Associates (PAs) has drawn significant attention in both medical and national press over the summer following the review undertaken by Professor Gillian Leng, the final version of which, along with its recommendations, was published in July 2025.
This article examines the review, paying particular attention to the implications for Physician Associates working in a primary care setting. It covers the main aspects of the review, the professional responses it evoked, and the implications going forward.
Overview of the Review
The aims and scope of the review were succinctly stated, yet necessitated a wide-ranging and lengthy review. As per the report’s introductory remarks,
“The principal aim of the review was to determine whether the roles of PA and AA were safe and effective as members of an MDT.”
To summarise the main conclusions of the review, Professor Leng stated there was no compelling evidence found either supporting or opposing the safety and outcomes associated with PA intervention; however, it was noted that they did tend to have longer consultations, tender more advice and were associated with fewer hospital admissions than GPs. Overall, Patient feedback was positive, but concerns were raised in 3 areas:
- Lack of clarity about the PA role, including identification and confusion with a doctor
- Barriers to care, for example, if a prescription was required
- Lack of confidence in whether they were seeing an appropriate medical professional
Doctors had their own separate concerns, particularly about supervision in practice, and differing understandings between PAs and doctors regarding appropriate clinical activities and boundaries. Issues relating to the regulation and training of PAs were also identified, among other matters. The results of an RCGP survey cited in the review found that 81% of respondents believed PAs had a negative effect on patient safety.
Key Recommendations
Ultimately, Professor Leng concluded there was no clear justification for abolishing the PA role, but recommended changes to address the identified issues and “effectively embed the PA and AA roles into the NHS workforce.” Key recommendations relevant to PAs in primary care included:
- PAs should be renamed Physician Assistants and have a certification route to prescribing and ordering non-ionising radiation tests.
- PAs should not see undifferentiated patients except as defined in national protocols.
- PAs should have two years’ experience in secondary care first, and should have a named doctor appointed as their supervisor.
- Doctors should receive training in line management and leadership, with allocated time for supervisory duties and effective service management.
Responses and Implications
The review has generated considerable debate amongst professionals, with Dr Tom Dolphin, chair of the BMA, stating the report, “laid bare the catastrophic failures in NHS leadership that have put patients at serious risk of harm… The blurring of lines between doctors and non-doctors, aided and abetted by the GMC, has been an unfolding disaster for all to see, and many doctors today will be relieved to see that they were right to raise the alarm”
On the PA side, the United Medical Associate Professionals (UMAP) stated in response, “We want to make it explicitly clear, that we DO NOT accept the recommendations of the Leng Review. The review is unable to substantiate a legitimate patient safety concern and relies on conjecture to fill this void without referencing any of the real-world data submitted by UMAPs and CMAPs which demonstrated MAPs’ track record of safety.”
Implementation of the recommendations is complicated, as the report represents proposals rather than binding legislation or regulatory guidance. Responsibility for delivery rests with the Department of Health and Social Care, with some aspects delegated to organisations such as NHSE, GMC, Royal Colleges, and Unions. Recent communications from NHSE to practices have reportedly confused previous guidance, further contributing to uncertainty.
The current position of NHSE in terms of implementing changes is to leave decisions regarding changes to local policy and HR advice, although there is no definition of who might provide this, risking inconsistency in advice across the UK. In response UMAP has advised its members not to sign any new or varied contracts and instead lodge a “letter of protest” with their manager or HR representative if asked to do so as a result of the review.
Conclusion
This is a very brief overview of some of the issues, but like much of NHS reform, it appears that whilst the aims may be admirable, it is in the detail and practicality of execution that matters fall down.
Practices should navigate these waters with care, as not only may there be matters of patient safety or provision of services to contend with, attracting regulatory attention, but any proposed variations to employee contracts or working conditions need appropriate consideration and advice, as contravention of employees’ rights could ultimately result in claims or legal action.
How DR Solicitors can help
For support navigating the implications of the Leng Review and its recommendations for your practice, contact DR Solicitors for expert guidance and planning.
Sources
- The Leng Review
- RCGP PA Survey
- BMA statement by Dr Tom Dolphin, chair of the BMA council
- UMAPS statement
News
Navigating NHSPS Service Charges: Watch the Webinar Recording
The challenge of managing NHSPS service charges continues to grow, impacting GP practices across England and Wales. If you’re facing this issue, our recent expert-led webinar is your go-to resource for effectively navigating these service charges.
Join DR Solicitors for an in-depth session on the complexities surrounding NHS Property Services charges. This engaging 30-minute recording empowers GP practice professionals with essential knowledge to approach NHSPS service charges confidently and competently. Learn to negotiate more manageable terms, avoid costly disputes, and sustain your practice’s financial health.
Key Topics and Insights:
- Ongoing Disputes and Financial Implications
Understand why NHSPS service charges are unsustainable for many and the financial challenges they impose on GP practices. - Effective Legal Strategies
Elizabeth Duan and Michael Large offer comprehensive strategies on negotiating terms effectively, aiming to minimise financial burdens and ensure sustainable service charge management. - Case Studies and Legal Frameworks
Explore legal frameworks and case studies that highlight successful negotiations and the importance of strategic legal advice in managing NHSPS service charges.
Watch the Video
NHSPS Service Charges Highlights:
- Introduction by Experts
Begin with insights from Elizabeth Duan, a Commercial Property Solicitor specialising in primary care, and Michael Large, a seasoned property litigation expert. - Financial and Legal Challenges
Discover the financial and legal challenges of service charge disputes, including how they affect partner transitions and practice mergers. - Achieving Favourable Outcomes
Learn from real-world examples of how strategic negotiations and firm legal advice can lead to significant reductions in service charge liabilities. - Guidance and Core Principles
Gain insights into key legal principles and best practices that can guide you in resolving disputes effectively.
Don’t miss this opportunity to equip yourself with actionable insights from industry experts. Watch the recording and transform the way your practice handles NHSPS service charges.
Meet the Experts:
- Elizabeth Duan: Legal Director & Solicitor at DR Solicitors
- Michael Large: Commercial Property Specialist at DR Solicitors
News
The New GP Contract 2025/26: A Legal Perspective
Readers will already be aware of the key points and changes in the GP Contract for 2025/26. It brings the promise of significant increased funding, a reduction in red tape, the end of national collective action and (hopefully) improvements for the benefit of both patients and staff.
Other commentators have focused on the financial and workload impact of the new contract. In this blog we aim to help you understand the legal impact of the changes and to be aware of how this may impact on your documentation and compliance requirements.
Key Legal Changes in the New GP Contract 2025/26
Partnership Dissolution
The recent Bhat case and its impact on partnership changes has clearly been noticed at NHS England. The new contract proposes to amend the GP Contract regulations to enable the ICB to terminate a GMS contract ‘where there is no clear successor when a partnership dissolves’. The devil will be in the detail here, but this provision has the potential to add even more uncertainty to an already confused topic. As highlighted by Bhat, there is a difference between ‘technical’ and ‘general’ dissolutions and their impact on a practice GMS contract. It will be interesting to see how the commissioner plans to determine the nature of a dissolution when even lawyers disagree.
The best advice for practices here is to have a well drafted, up to date partnership agreement with very clear and easy to follow rules regarding expulsion and dissolution. Then, if you are minded to expel or dissolve, take expert legal advice before doing so. The consequences of getting this wrong are invariably significant and costly.
Data Sharing
There is a new requirement to ensure various data sharing functionality is enabled in GP Connect by 1 October 2025.
The requirement to enable GP Connect should be reflected in data processing documentation and privacy notices. Data is becoming a particularly complex and risky area for practices as patients become increasingly aware of their rights, and remember that the GP practice is the data controller. If patient data is inadvertently disclosed, the patient will always look to the practice in the first instance, and the only way a practice can mitigate the risk in this scenario is to have compliant processes and to have data sharing agreements where the recipient of the shared data agreed to indemnify or reimburse you if they cause the breach. Data breach insurance is also well worth considering.
Focus on PCNs
It is notable how central PCNs are to the new contract. Dr Amanda Doyle even signs off by saying she hopes the changes ‘will be seen as positive for practices, PCNs and for patients’, so it seems unlikely that PCNs are going away anytime soon. The merging of the ‘GP pot’ into a combined ARRS pot increases flexibility, and any GPs hired last year can be rolled forward into the current year. There are however still restrictions on GP recruitment, such that new GP hires must have obtained CCT within the last 2 years.
This should give PCNs confidence to make more strategic decisions around their organisation and structure, but clearly does not remove all risk and uncertainty. The best advice for PCNs remains to think about structural solutions to their inherent risks. We would anticipate that those PCNs which are still operating in lead practice or flat practice models will look again at risk reduction strategies such as PCN incorporation, outsourcing to federations, or practice mergers. The ‘right’ answer will be different for each PCN, so it is important to always take advice.
With regard to the GP ARRS funding, we have written previously about the risks involved with this, but it is encouraging that the previously recruited GPs are at least still being funded. This does leave open the question about the long term though. If you roll forward five years, will a ‘new GP’ hired under the ARRS funding in 2024 still be entitled to ARRS funding even though by that time they would be an experienced GP? As the pool of ARRS GPs gets bigger a solution to this will need to be found, but obviously if it ends up with redundancy the costs will fall on the PCN and the longer a GP has been employed, the greater the cost. The same possible mitigation strategies are still available as we wrote about previously, though some may judge that the risks are lower now that the pools have been merged.
How DR Solicitors can help
Overall it is obviously pleasing to see additional funding directed at primary care, but it is always important to mitigate the risks and ensure good governance.
Whilst the new contract introduces certain new risks, the legal mitigations remain the same: ensure that your partnership agreements are up to date, and that your PCN has robust documentation around its structure and a transparent operating model.
At DR Solicitors, we have the UK’s largest team of specialist primary care solicitors, and we can help you navigate the changes by putting proper legal frameworks in place that will be essential to ensure practices operate efficiently and remain compliant under the new GP Contract 2025/26.
Next steps
For more information or a free, no obligation call with one of the DR Solicitors team, please contact us.
News
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.
News
Podcast: David Sinclair on the threat of cyber-attacks on GP Practices and steps to take now
With the threat of cyber-attacks on the rise, coupled with a quickly evolving policy landscape when it comes to GDPR, data protection and information security, our Information Law Solicitor, David Sinclair, discusses with Ockham Healthcare what practices should be doing now to ready themselves, who should take responsibility for this critical area of work, and what to expect going forwards.
News
NHSPS service charges test case judgment – What does it mean for GP practices?
The long running saga of the 5 NHSPS ‘test cases’ regarding service charges has reached a conclusion. The case has been much hyped by all parties, to the extent that it was named as one of the ‘top 20 litigation cases of 2022’ by one excited journalist. Many practices in NHSPS buildings have been waiting for the outcome of the case, in the hope that it would lead to a resolution of their problems with disputed service charges. In the event, the case has proved less useful than many had hoped. The judge has made clear that he does not consider it to be a test case, and that each dispute will turn on its own facts. In essence, the judge concluded that a tenancy is a contract, and that each practice is therefore bound by the particular agreed or implied terms of their occupation. What is perhaps most surprising, is that this outcome should come as a surprise to anyone.
This rather complicated litigation started when the BMA sought to bring an action on behalf of 5 practices who were tenants in various NHSPS properties, asking the Court to confirm that certain standard policies operated by NHSPS to calculate service charges had not been incorporated into the terms of the tenancies. The court refused to make a declaration to this effect, but NHSPS admitted that they could not simply change the terms of a tenancy to include the policies and a ‘victory’ of sorts was declared. This was however short-lived as NHSPS took the opportunity to countersue the 5 practices for arrears of service charges. It is this counterclaim which has now been determined. NHSPS was seeking over £1m in overdue service charges from the 5 ‘test case’ practices and claims that it is, in total, owed over £175m by its GP tenants. It is clear that very significant sums are at stake.
The facts of each of the 5 tenancies are subtly different, which was undoubtedly why they were chosen for the BMA as a ‘test case’. The main thing they have in common is a general lack of documentation and rigour around any of the normal legal processes. As a result the judge had to untangle a complex web of poorly documented issues relating to each building, including: What demise does the practice actually occupy now and in the past? Which partners have been/are tenants and are therefore liable? What are the terms of occupation? What services have been, and should have been, provided by NHSPS? To what extent did payments made represent an ‘all-inclusive rent’? Were service charges capped or in some other way limited by agreement, including by historic agreement with a PCT? Are any of the claims time-barred?
Probably the most important message from the judgement is that as an ordinary landlord, NHSPS has the right to recover a reasonable service charge for the services which it delivers. None of the practices were able to successfully argue that they should be receiving discounted or free services from their landlord, or that their rent was somehow ‘all-inclusive’. That is not to say that other practices cannot succeed with such an argument, but it would require solid evidence that such an agreement existed rather than simply relying on an absence of evidence. In the words of the judgment: “the law, where appropriate, has to step in and fill the gaps in a way which is sensible and reasonable. The law will imply, from what was agreed and all the surrounding circumstances, the terms the parties are to be taken to have intended to apply”.
The judgment did not determine how much of the £1m claimed from the 5 ‘test cases’ was actually recoverable, but it did set out the parameters by which the amount payable should be calculated. It is thus clear that the 5 practices have a significant service charge liability to NHSPS. However the judge went out of his way to make clear this cannot be seen as a precedent for other practices:
“There has been some reference to these five actions as test cases for other disputes over service charges which may arise between the Defendant and other GP practices. While I express the hope that this judgment will assist the Defendant and other GP practices in resolving disputes over services charges without the need for expensive litigation, I would be wary of classifying these five actions as test cases. As this lengthy judgment demonstrates, and as I have already said in this judgment, the resolution of a service charge dispute in any particular case essentially depends upon the evidence and arguments in that case. This is one of the principal reasons why, for reasons which I have endeavoured to explain in making my decision on whether the Charging Policy Declarations should be made, I do not think that it is sensible for any GP practice to adopt what I would describe as a policy of non-engagement; by which I mean refusing to pay service charges pending explanation of the position by the Defendant. As I have said, it seems to me that a more constructive approach would be for GP practices to take their own advice on the position, and to put their particular case to the Defendant on what is and is not recoverable by way of service charges.”
What, therefore, should practices facing NHSPS service charge disputes do now?
1) Don’t ignore the problem as it is very unlikely to just ‘go away’. Having now proven that there is no blanket ‘NHS exemption’ to paying service charges, it would be surprising if NHSPS simply wrote off the £175m it believes it is owed.
2) You should be paying a reasonable amount for the services that you receive from NHSPS, unless you can clearly demonstrate an agreement to pay less. You should accrue accordingly and pay non disputed charges.
3) If you do not agree with a service charge demand, you should challenge it in writing and explain why you believe it is incorrect. For example, why should you pay for a gardener when there is no garden, for a window cleaner who never turns up, or ‘above the going rate’ for a plumber?
4) Gather as much documentation as you can and store it safely. Since any documentation gaps can be filled by the courts, you want to have as much evidence to hand as possible.
5) Make sure your Partnership Deed is clear about what happens when partners join and leave. Your liabilities to the landlord do not automatically cease when retiring from the partnership unless the lease is assigned (which is difficult if the tenancy is undocumented), so retirees will want indemnities from the continuing partners. Likewise incoming partners will want certainty that they will not be liable for charges relating to the period before they joined, and that a suitable retention is in place for disputed charges.
6) Engage with NHSPS to get your situation ‘regularised’. For most practices this will mean that it makes sense to get a lease agreed, but this should be done in tandem with sorting out disputed historic service charges. It is in everyone’s interest to avoid further expensive litigation, so there will be deals to be done.
7) Most importantly, seek specialist advice. When it comes to buildings, no two buildings and (thus no two leases) are the same. If you start negotiating without proper legal advice, you risk giving away important legal rights without securing anything in return. The most likely outcome for all practices now is a negotiated settlement with NHSPS, but this will be very difficult unless you understand the strength of your negotiating position. With so much money at stake, skimping on advice is likely to prove a false economy.
At DR Solicitors we have very deep experience and success acting for GP tenants who are in dispute with their NHSPS landlord. We understand the issues, and the areas where negotiation is likely to prove most fruitful. Our new partnership deed also addresses these NHSPS issues. Please contact Daphne Robertson or Sue Carter on 01483 511555 for a free initial conversation about your NHSPS surgery issues.
News
Data Protection Officers – what’s the risk?
Every GP Practice in England and Wales should have a designated Data Protection Officer (‘DPO’) who is key to the practice being able to comply with its UK General Data Protection Regulation 2016 (‘GDPR’) duties. Unfortunately, there is a lack of understanding about the importance of the DPO role, resulting in partners and separately, the DPO, taking on potentially significant regulatory and financial liability. In many practices, the DPO is seen as a secondary function that a partner, practice manager, or relatively junior member of staff can undertake in addition to their normal duties. In this blog, our data and information security solicitor, David Sinclair, identifies some of the key risks and some steps you can take to avoid them.
The role of the DPO
A DPO has significant, statutory data protection responsibilities that require them to possess requisite professional qualities and other abilities (not defined in the legislation), together with an ‘expert knowledge of data protection law and practices’. Given the complexity and ever-changing nature of UK data protection law, this is a significant burden to impose on any professional – even one with considerable information governance experience.
Partner liability
Unless otherwise expressly set out in the partnership agreement, partners are jointly and severally liable for GDPR compliance, including for formally appointing and adequately supporting a competent DPO, and for filing the DPO appointment with the ICO.
Partners bear the full statutory responsibility of ensuring that the DPO (whether a staff member or third party) has the experience, skills and knowledge to fulfil their DPO duties, as well as the required ongoing training, support and resources to enable them to carry out their role.
DPO liability
A DPO carries significant liability if a GDPR breach is attributed in whole or in part to a failure on their part to properly undertake their DPO duties. This is the case even when it can be shown that they perhaps did not have the necessary experience for the role and/or were not provided with adequate training to understand the GDPR’s requirements (many of which are poorly defined and open to interpretation), unless the DPO can demonstrate that they raised these issues with the practice at the earliest opportunity.
A common misconception among DPOs is that they have immunity from prosecution, dismissal, or other disciplinary action by virtue of their status as a DPO. This is not the case.
Article 38 of the GDPR provides DPOs with limited protection from dismissal or other penalty relating purely to the performance of their DPO tasks. In addition, DPOs cannot be personally liable for the partnership’s non-compliance with the GDPR, which remains with the partners.
Data protection law does not, however, protect DPOs who fail to undertake their statutory role or who do so negligently, eg by them failing to advise the partners, or them giving inaccurate advice, particularly where this is due to the DPO’s lack of competence and they failed to raise that with the practice.
Further, the GDPR does not prevent partners disciplining DPO employees (up to and including dismissal) under the terms of their employment contract, or from partners seeking to recover damages (in breach of contract and/or negligence) from external DPOs, whose failure to undertake their role results in a breach of data protection law.
Conclusion
So how can you minimise your liabilities?
Partners should undertake due diligence on a DPO’s competence and suitability to undertake their role. The practice must also provide the DPO with the resources and support they need to carry out their duties. We strongly advise partners to review their DPO appointment on a regular basis.
Existing DPOs and those considering taking on the role should give thought to whether they have the required training, experience, skills and knowledge to undertake the role. Particular consideration should be given to whether they can advise the practice competently and confidently on complex GDPR issues. Individuals who have doubts about their competence in this area should raise this with a partner as a priority.
For more information about GDPR, the role of the DPO or on information governance issues generally, please contact David Sinclair on 01483 511555 or by email to d.sinclair@drsolicitors.com.
News
GP Partnerships: So who do you think you are? Are you a self-employed Partner or are you an Employee?
Most GP practices continue to be organised as partnerships: an ‘independent contractor’ status which has outlived innumerable changes in the NHS. The ‘golden hello’ new to partnership scheme has attracted over 1,300 applicants over the last year, demonstrating that there are still plenty of people who aspire to becoming a partner in a GP practice. However, in an effort to keep up with the fast changing environment and to appeal to a broader range of partner candidates, many GP partnerships are looking at ways of flexing the traditional partner role, to the benefit of all concerned.
In this blog, we look at the 3 main types of partner we regularly encounter in GP practices.
1. Equity Partner (self-employed)
This is the most traditional partner model. Equity Partners are self-employed and have full and equal rights to decision making and are part of a collective management team which is jointly responsible for all aspects of running the practice. Profits and losses are shared equally, although sometimes there is a ‘path to parity’ over a period of a few years. With the rise of part-time working, a common variant is to share the profits and losses on the basis of planned sessions. Equity Partners are expected to contribute capital to the business (as a minimum working capital, but sometimes also property or other capital) which is usually called ‘buying in’. An Equity Partner is jointly and severally responsible for any losses and liabilities that arise in the partnership. This means that creditors can choose to pursue one or all of the partners for the full amount of the partnership debts.
2. Fixed Share Partner (self-employed)
Fixed Share Partners are also self-employed. A Fixed Share Partner typically receives a fixed, guaranteed income for a defined period of time (sometimes during a mutual assessment period) and there should also be an element of variable income based on the profits or losses of the practice. The ‘golden hello’ scheme does not apply to Fixed Share Partners where the fixed share period extends beyond the expiry of any mutual assessment period. Fixed Share Partners still share full liability alongside the Equity Partners so they ought to be suitably indemnified by the Equity Partners in the partnership deed. Fixed Share Partnership arrangements need to be carefully documented to avoid HMRC viewing the tax status of the person as an employee.
3. Salaried Partner (employed)
Salaried Partner and Fixed Share Partner are often (incorrectly) used interchangeably. The key to this person’s status is in the word ‘salary’. Whereas partners take drawings on account of their profit share, Salaried Partners are employees who receive a salary. Salaried Partners should have an employment contract, they benefit from the protection of all relevant employment legislation and they receive a salary with tax and NI deducted at source under PAYE. Salaried Partners may have an element of ‘bonus’ depending on the profitability of the practice and this will be documented in their employment contract. Salaried Partners will not be a party to the partnership deed and they should have no share in the partnership profits and no voting rights. For a Salaried Partner, the word ‘partner’ is just a title and nothing more so they need to be suitably indemnified by the Equity Partners in their employment contract.
A word of warning…
Third parties can bring a claim against anyone who calls themselves a partner, be they an Equity, Fixed Share or Salaried Partner. So behind the scenes, Fixed Share and Salaried Partners are usually protected by way of an indemnity from the Equity Partners. An indemnity is a promise from the Equity Partners to financially compensate the Fixed Share or Salaried Partner in the event of a loss or liability arising. However, the indemnity will not be worth the paper it is written on unless the Equity Partners are good for the money.
Conclusion
If you are a GP practice or a partner or you are thinking about partnership and you want clarification on this blog or any other matter relating to primary care, then it’s time to contact us. Please call us on 01483 511555 or send an email to info@drsolicitors.com
News
Protecting yourself & your business: getting ready for VCOD2
At the time of writing this article, the Government looks poised to delay the controversial new legislation known as ‘vaccination as a condition of deployment’ (or ‘VCOD2’) which will make Covid vaccines mandatory for NHS workers in England. The debates for and against the new laws continue to be heard, but even if the mandate is delayed, it will mean those working in the NHS will be facing the same dilemma this summer as they would otherwise face now: comply with the mandate or face dismissal.
As things currently stand, in order for a person to have received two doses of the Covid vaccine by the 31 March 2022, they will have to have had their first dose by 3 February. This is likely to account for the large number of enquiries we have seen pouring in from GP practices, seeking advice on their position.
In this article, we look at what the new law means for Practices and their employees.
What if an employee refuses to be vaccinated?
If VCOD2 goes ahead as planned, then an employee refusing to be vaccinated could face dismissal under the definition of ‘Some Other Substantial Reason’ or ‘SOSR’. An employer intending to rely on SOSR to dismiss an employee is advised to follow a fair procedure, which may include discussing the employee’s concerns about vaccination with them, and taking steps to find alternative work for an affected employee.
Some employers will argue that the obligation to follow a fair procedure is not necessary, because in all likelihood, in light of the mandate and the limited opportunities for re-deployment within GP Practices, doing so is unlikely to make a difference to the outcome. If this argument were to be successful, it could lead to any award for unfair dismissal being substantially reduced.
Redeployment
Many Practices will struggle to find space in their current premises to ensure separation of an affected employee. Potential for redeployment and in particular, selection for alternative work is an aspect of the dismissal process where disputes are likely to arise. If you are an employer dismissing several unvaccinated staff but have identified just one alternative position, you may need to take advice on how you choose which employee to save from dismissal and redeploy.
New policies, pre-employment checks and contracts
If vaccination status is to be a permanent pre-condition to NHS employment, all employers will need to develop policies to reflect the new law. Safe systems to ensure validity of proving vaccination status will need to be put in place and pre-employment checks and checks on locums and contractors will also be essential.
Redundancy
NHS England has made clear that employers must not treat VCOD2 dismissals as redundancies; the consequence being that dismissed staff will not be eligible for any redundancy pay.
Legal claims
The controversy and perceived unfairness by many of VCOD2 dismissals, suggests that dismissed staff are unlikely to go quietly. Class actions may even follow. Although compensation for unfairness will be limited (if awarded at all), we predict claims will be issued and employers will face the unwanted repercussions of this, in terms of time and money spent and reputational impact.
Keeping pace with change
Unlike other preconditions to employment, what constitutes “fully vaccinated” is a moving target. It is unclear how the Government intends to deal with this, save for the fact that Ministers have recently said that the booster is being considered as an additional precondition. How will employers deal with the state of flux in their contractual documentations and policies?
Impact on staffing and recruitment
VCOD2 dismissals will leave significant gaps in staffing across an already stretched NHS. Any dismissals will have a knock-on effect on the remaining workforce with employees being forced to take on additional responsibilities and work longer hours. Further pressure on NHS staff will be seen by most as unreasonably burdensome and the impact on staff retention and recruitment could be dramatic.
Morale and support
How can employers and employees keep buoyant and continue to feel supported at this time? For many, VCOD2 could see long serving members of staff leave NHS service in a matter of weeks, whilst those that remain must continue to provide high levels of care in what is the most demanding and uncertain of environments.
Conclusion
Whilst many questions remain unanswered, our view is that whether the VCOD2 comes into force in two months or later this year, the time for employers to develop workforce strategies to cope with the change and to inform and consult with affected staff is now.
We can advise GP Practices and PCNs on how to engage with staff, the potential redeployment of staff, as well as advising on staff handbooks and Partnership Deeds. Please contact Daphne Robertson for a free initial consultation: d.robertson@drsolicitors.com or telephone 01483 511555.