The presence of an unsatisfactory GP partner can cause insurmountable damage to the practice as a business. So it is essential to include an appropriate mechanism in the partnership deed to enable the other partners to deal with the problem.
Partnership Act 1890
Without a deed - or a deed that is not up to date - you have only the default rules in the Partnership Act 1890 to rely on.
As the Act does not contain a power of expulsion, the only remedy available is to dissolve the entire partnership with a view to starting again (minus one partner). However, this is dangerous because it could result in the loss of the practice's NHS contract.
Instead, you can be properly protected through a deed containing certain essential clauses. The starting point is to clearly establish the ground rules by setting out what is expected of each partner. It is essential to include grounds for expulsion which should enable you to justify the immediate expulsion of a partner on service of a notice in the case of blatant breaches of the ground rules.
However, as the facts leading up to the expulsion may be unclear, this way of ousting a partner is increasingly viewed as risky in case the expulsion notice is challenged.
In recent years, having a 'green socks' compulsory retirement clause in deeds has become more common as it makes it unnecessary to justify grounds for expulsion. Instead the other partners simply decide to expel the unsatisfactory partner. The reason for the partner's expulsion is irrelevant, whether it is their green socks, underperformance, a personality clash or some other reason.
As partners are of equal standing to each other and assuming there are no discrimination issues, there is no opportunity for such an expulsion to be challenged.
The usual notice period is six months, and you can also include a 'gardening leave' clause under which the partner must remain absent from the practice throughout that period. The very existence of a green socks clause in a deed can be beneficial in that it may coerce partners to behave more reasonably.
Without a deed, the only other means to dispense with an unsatisfactory partner in circumstances where there are genuine issues is, currently, to persuade your primary care organisation to intervene. This might not achieve the desired effect and may take a long time.
Remember that the costs of preparing and maintaining an up-to-date deed will be less than the expense of a messy partnership split or the loss of the practice's NHS contract.
- Lynne Abbess is a partner at specialist solicitors Hempsons, www.hempsons.co.uk