Dr Gerard Panting advises on NHS contracts, the patient services guarantee and complaints and disciplinary procedures
Q Exactly what is an NHS contract, and how does it differ from a normal contract?
A From April 2004, practices have had the option to become health service bodies. If they do so, the contract will be an NHS contract and the way in which contractual disputes between practices (providers) and the PCO are resolved changes. Disputes are resolved not in the courts but under the provision of the NHS Contracts (Dispute Resolution) Regulations 1996.
There are two main procedures under these regulations. The first is dispute resolution, for dealing with breaches of contract, and the second is an appeals procedure for disputes which arise outside the contract.
As the regulations explain, the arrangements between health service bodies that constitute an NHS contract do not give rise to contractual rights and liabilities resolvable through the courts. Instead, any disputes that arise are referred by the Secretary of State for determination, usually by appointing a person to consider the matter in accordance with the regulations.
Both parties are given an opportunity to make written representations and may then be invited to make oral representation before the adjudicator gives his determination, with reasons, and dispatches it to the parties and the Secretary of State.An example the BMA gives of an appeals procedure as something that arises outside the contract is where there is a dispute about whether an individual GP will have access to the primary care performer's list.
The key difference between an NHS contract and a normal contract lies in the resolution of disputes; litigation is time-consuming, long-winded and expensive and for one or more of these reasons, it is not worth seeking a remedy through the courts unless substantial amounts of money are involved.
Q What is the patient services guarantee and do I, as a GP, have to do anything to meet it?
AThe new GP contract allows practices to be far more flexible in the care that they provide.The additional and enhanced services allow GPs to pursue their special interests. The contract also permits them to opt out of providing out of hours care.
It is up to PCOs to ensure that services provided for patients are adequate and to underwrite the new patient services guarantee for individuals within their own area.The guarantee states:
Patients will continue to be offered at least the range of services that they currently enjoy under the existing contract. The difference is that, in future, some services in the additional category may be only available to patients from providers other than their own practice. The guarantee is to be a legal duty on primary care organisations.
So it is the PCO that has the legal duty to fulfil the patient services guarantee but, clearly, this can only be done through agreement with their providers. So PCTs must agree with practices the services to be provided, and by whom, and ensure that their matrix of agreements comprehensively and collectively fulfils the guarantee.
PCOs can also go to alternative providers which may include NHS Direct, NHS walk-in centres, GP cooperatives, A&E departments and private providers.
Q Can I still remove a patient from the list?
A The new contract contains provisions for removing patients from the practice list, but there must be reasonable grounds for doing so, and these cannot relate to race, gender, social class, age, religion, sexual orientation, appearance, disability or medical condition.
Under the new regulations, the practice must notify the PCT in writing that it wishes to have the patient removed and set out the specific reasons for doing so.This might be a statement to the effect that there has been an irrevocable breakdown in the relationship between the patient and the contractor;however,this cannot come out of the blue.
The practice can only request removal if, within the previous 12 months, the patient has been warned that there is a risk of removal and the reasons have been given.
The only exceptions to this rule are where the reason for removal relates to a change of address or if there are reasonable grounds for believing that issuing a warning would be harmful to the physical or mental health of the patient or put any practice staff at risk.
Violent patients can still be removed immediately but only if they have committed an act of violence against an individual specified within the regulations (and again, this boils down to practice staff) and the incident has been reported to the police.
So the new rules are different from the old terms of service requirements, and before removing a patient from the list it is worth studying regulations 20-27 of the NHS (General Medical Service Contracts) Regulations 2004.
Q How does the new contract fit with the NHS complaints procedure and disciplinary procedures?
A Under the new GP contract there are, in effect, no disciplinary procedures.
Disciplinary processes underway when the new contract was introduced will continue under the old arrangements.
As far as any new issues are concerned, the options open to the PCT include removal of an individual performer (i.e. GP) from the performer's list on the grounds of fraud, unsuitability or efficiency. (Unsuitability really means criminal conviction, and efficiency is about seriously deficient performance.)
The regulations also permit variation or termination of the contract and the application of contract sanctions which can include withholding remuneration for failing to deliver the required services.
There is no real link between the NHS complaints procedure and the various forms of action that PCTs can take against individual performers or entire practices, but clearly the PCT might be alerted to problem areas within a practice by a rash of complaints.