Our rubbish is collected from our doorsteps, not by employees of the local authority, but by employees of (probably) a French-owned private company. Why should a range of primary medical healthcare services (e.g. urology, diabetes, dermatology and minor surgery) not be contracted out by a local primary care trust (PCT) to contractors employed by (probably) a
The driver for change is undoubtedly the DoH’s perception, reinforced by its political masters, that competition will provide value for money. The conundrum ever since the inception of the NHS, has been a neverending task of finding new ways to spread limited resources to meet unlimited demand.
A little note of change in the goodwill rules in 2004 facilitated change. Prior to 2004, it was unlawful to sell the goodwill of a business that provided primary healthcare services. In 2004, the restriction was to be limited to the services which GPs provide under their ‘core’ contract to registered patient lists. This change opened up the market to the private sector.
In addition, the DoH introduced a new form of contract — called Alternative Provider Medical Services (APMS) — which basically enables a PCT to enter into contracts for the supply of any primary medical services from any supplier.
These changes have been viewed by the GP’s profession, variously, as a threat to what hitherto might have been regarded as a ‘monopoly’ and as an opportunity, as it is open to GPs to compete in the marketplace against the private sector, to deliver what are known as enhanced and other services.
In the southwest, for example, GPs have responded in a number of different ways. In
Whether GPs opt for ‘DIY’ structures to meet the challenge, or seek commercial ‘partners’, legal activity has had to provide appropriate services to meet new demands. Some of these demands include:
- Development of multi-occupier medical centres. Examples in the southwest area with which we have recently been involved include four new medical centres in
- While the NHS was the single supplier of primary medical services, a system called the ‘internal market’ operated. Now that services are being contracted out, a whole new suite of contract documentation is required, under which the PCT contracts out the services and, in many instances, the primary contractor subcontracts delivery of services, say to local consultants, or more specialist providers.
- While the standard new General Medical Services (nGMS), or Personal Medical Services (PMS) contracts, pursuant to which GPs provide their core services, are generally standardised and negotiated centrally, the APMS model provides total flexibility to be adapted to suit a particular service, and local circumstances.
- The extension of the Transfer of Undertakings Protection of Employment (TUPE) Regulations for the revision of public services has meant difficult employment law issues have arisen. Where an existing service is being provided through employees of the NHS transfer of employment, issues will arise when a new provider takes over. In this respect, GPs themselves are at an advantage because, generally speaking, they can manage the structuring of contracts, which they succeed in winning, so that existing staff, while transferring, retain the benefits of membership of the ‘Holy Grail’ — as the membership of the NHS Pension Scheme is sometimes described.
- For non-NHS competitors, however, the position is more complex — they either have to negotiate a ‘secondment’ or ‘retention of employment’ arrangements with the existing employer, or demonstrate that ‘comparable’ pension benefits are provided within the new employment.
- As the case of a ‘missing’ CD on transit from HM Revenue & Customs has demonstrated, protection of data relating to patient records is of paramount importance. All contractors will have to comply with what is known as the Caldicott Protocol. One can just imagine the storm of protest that would follow from leakage of confidential data about patients’ healthcare records. It will also be necessary for private sector providers to grapple with the implications of the Freedom of Information Act. Inquisitive journalists will no doubt be anxious to find out the value of contracts issued by PCTs and provisions in Agreements as ‘confidentiality’ will be of no effect if that Act applies in the particular circumstances.
- At the same time as it is looking to PCTs to ‘contract out’ services, the DoH is also trying hard to engage GPs in the process which is called practice-based commissioning (PBC) which, generally speaking, is a re-casting of the old fund-holding scheme, introduced by the Conservatives, but which, generally speaking, is an attempt to involve GPs in the process of prioritising health needs in a particular locality. Participation in PBC by GP practices may conflict with a wish to tender for services which are the subject of a particular commissioning process. ‘Declaring an interest’ may seem an obvious solution, giving a degree of transparency, but it may still happen that a GP may participate in PBC not knowing, at that time, of a subsequent desire on the part of one of his partners to tender for the particular service which he himself helped to design.
- ‘Choice’ is increasingly the buzzword in the primary healthcare arena. PCTs have to choose which services to commission. GPs themselves have to choose whether or not they tender for contracted-out services, in addition to the core services they provide under their PMS or nGMS contracts. Most of all, what is changing is the degree of choice that patients themselves want to exercise. ‘Choose and book’ is promulgated by the DoH to encourage patients to engage themselves in the process, for example, of deciding to which consultant they should be referred, or at which hospital they should receive treatment. The choice is ever-increasing to extend to private treatment centres, as well as NHS-administered acute trusts.
Derek Bellew is a partner at Veale Wasbrough.