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Challenging alleged GP contract breaches

What can GMS, PMS and APMS practices do if their NHS England Area Team says they have breached their contract? Philippa Doyle explains

Contract disputes with NHS England's Area Team to the NHS Litigation Authority (Image: iStock)
Contract disputes with NHS England's Area Team to the NHS Litigation Authority (Image: iStock)

When PCTs were abolished on 31 March 2013, many staff who were responsible for managing your GMS, PMS or APMS contract transferred to NHS England's 28 Area Teams.

NHS England delegates GP contract management to area teams so you may already know a few staff at your practice's area team.

Area teams have picked up where PCTs left off in dealing with any GP contract matters. If the teams have issues with how practices are managing their contracts/meeting obligations, they will take action.

Disputes

If your practice disputes action that the area teams proposes to take, get legal advice as soon as possible.

The area team can serve a breach or remedial notice on the practice and it can withhold money from your contract.

It can even terminate your contract - by either first giving notice or with immediate effect - if it thinks there is a patient safety issue or risk of material financial loss.

Practices can also challenge or appeal against area teams' actions.

Breach and remedial notices

Remedial notices are for failures that can be put right, while breach notices are for repeated failures including those that cannot be remedied.

Two types of performance issue can give rise to a breach of contract:

  • Behaviour giving cause for concern, which may/may not lead to
  • Failure to deliver the contract

Behaviour giving cause for concern includes professional misconduct, inappropriate clinical behaviour and fraud.

Contract failures relate to breaches of mandatory or locally agreed terms.

With APMS, the contract itself will set out the process to follow if there is a dispute.

The procedures that must be followed when a PMS or GMS practice receives a breach and a remedial notice is laid down in the NHS (GMS Contracts) Regulations 2004 and the NHS (PMS Agreements) Regulations 2004.

Examples of contract breaches

The following scenarios are based loosely on typical pre-I April 2013 cases - hence the mention of PCTs. The procedures involved have not changed, except in very minor ways, since area teams took over.

Dysfunctional practice

A PMS practice was served with four breach and remedial notices in a three-month period. The breach notices required the practice not to repeat certain actions. The remedial notices gave it 28 days to address specific issues.

The senior partner was on long-term sick leave and the practice manager had left.

Management processes started to slide:

  • Disease registers weren’t up to date
  • QOF returns were late
  • Patients had complained about difficulties getting appointments and being seen by locum GPs.

The practice appeared dysfunctional and poorly managed.

After legal advice confirming the notices' validity, the GP partners appointed a temporary practice manager who focused on all these issues.

At a meeting with the PCT, the GPs’ acceptance of all criticisms enabled both to maintain a good working relationship while the practice's services were improved to an acceptable standard.

Receiving the breach and remedial notices was a wake-up call to the practice team. The temporary manager stayed on and the practice is now flourishing.

Contract termination

A GMS practice found itself on the receiving of punitive treatment.

Patient complaints led to a PCT inspection. This was followed by a report and a list of concerns set out in a remedial notice giving the practice, depending on the issue, four, eight and 12 weeks to comply.

After eight weeks, the PCT expressed dissatisfaction with the steps the practice was taking to remedy the defects and served notice to terminate its GMS contract.

 

Fighting back

When faced with such a draconian action as contract termination, practices should obtain legal advice immediately.

Under GMS and PMS contracts you can challenge a notice to terminate by applying to the secretary of state (health secretary) for NHS dispute resolution.

The NHS Litigation Authority’s (NHSLA) Family Health Services Appeal Unit manages these challenges on the secretary of state's behalf.

The process is quite swift and straightforward and far cheaper than taking court action:

  • You have 28 days to lodge your objection to the termination with the NHSLA.
  • The termination is ‘put on hold’, so you can continue to operate the practice’s contract until the matter is resolved.  
  • You get an opportunity to put your case in writing on why termination is unnecessary, and the Area Team will also have an opportunity to say why it thinks term is needed.
  • Sometimes, the NHSLA will invite you and the area team to a hearing so that each side can put its case in person.
  • In most cases, the NHSLA will ask an adjudicator (usually a lawyer), to read both sides of the argument, and make a decision.
  • The whole process can take just three months for straightforward cases, but even the most complex cases should not take much longer than this to resolve.

If legitimate concerns have been raised, use this as an opportunity to take swift steps to bring the practice ‘up to scratch’ and present it in the best possible light.

Area team breaches

GMS and PMS practices can refer area teams to the NHSLA. For example, the area team must not unilaterally vary your contract or withhold funding unless it has a statutory right to do so.

If you receive a letter or email suggesting that sort of action, respond straightaway objecting to the proposal and asking for a meeting.

NHS England has a local dispute resolution process: ask the area tean for a copy. The process should involve a meeting with someone more senior than a contract manager.

If you cannot resolve the dispute, you have three years to bring a dispute to the NHSLA.

The sooner you do this the better: the key facts of the dispute will be fresher in your mind and there is less risk of key documents going astray.

Always keep copies of written and email exchanges with the area tean and make contemporaneous notes of all meetings.

APMS practices

The NHSLA does not adjudicate on matters involving an APMS contract. Usually, the process involves local dispute resolution followed by mediation. With mediation an accredited mediator is jointly appointed by the parties.

The mediation usually takes place at a neutral venue and both parties get to talk to the mediator in private and together with the aim of ‘brokering a deal’.

This is an increasingly common way of managing disputes, particularly with APMS contracts that are not financially viable and where one party or the other is looking for a way out.

  • Philippa Doyle is an associate in the health advisory team at specialist medical solicitors Hempsons

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