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GP secures funds for challenge to rules preventing wider charging of patients

A GP has secured his initial target of £5,000 to fund initial advice on a potential legal challenge to rules preventing GP practices from charging patients for all but a narrowly prescribed range of services.

 

 

 

The claimant, Dr Matthew Davies, is a 6-session GP partner in a rural practice. He is also a part-time farmer and was called to the Bar of England and Wales in 2003.

He has raised £5,515 from 140 people via a Crowd Justice page, having initially set a £5,000 stretch target.

 
 
Advised by BMA Law, Dr Davies’ proposed legal action would involve a challenge to Part 19 of the Standard General Medical Services (GMS) Contract (and PMS equivalent) which prevents GPs from charging patients for any services except those narrowly proscribed by the contract such as insurance reports or travel vaccinations. 
 

Dr Davies said: “General Practice in England is under threat. We have been promised an increased share of the NHS budget and the BMA calls for 11% of the NHS budget to go to general practice, but in reality the proportion keeps decreasing. General Practice's share of NHS income drops to 7.1% in the next financial year from a high of 9.6% in 2005.”

He added that GPs were “doing more work for a smaller proportion of funding with a smaller workforce for an increasingly elderly population with a growing level of multiple health problems”, a situation he described as “obviously not sustainable”. 

Dr Davies said: “If successful, the challenge would put us in the position of NHS dentists or pharmacists who can charge their NHS patients for services over and above those provided by the NHS. Presently our local NHS pharmacy can offer a private chickenpox vaccination to our mutual patients, whilst my practice (with access to the patient's full medical record and resuscitation facilities) cannot. Why not?”

His Crowd Justice page posed a number of questions:

"1. The GMS contract ties our practices to offer NHS medical services in core hours between 08-00 and 18-30 Monday to Friday. Why then should we be tied to the terms of the contract outside of those core hours?

It is akin to me expecting to see my receptionists still in their work uniform when they tuck themselves into bed each evening. 

The first question for our legal team is then when are we tied to our contracts and can we operate privately outside core hours?

2. English Law has a doctrine of restraint of trade which means that terms in a contract can be unenforceable if they unjustifiably prevent a party from performing their trade. Even where a term is enforceable the restraint of trade doctrine suggests that a contractual term should be interpreted as narrowly as possible so as to minimise any potential restraint on a party being able to work or perform their trade.

As there is fairly minimal private general practice outside of central London, one has to surmise that the GMS contract is in all practical terms restraining the ability of GP's to practice their trade.

The second question for our legal team is whether the restriction on us offering additional private services to our patients is unenforceable in the courts as it amounts to a restraint of trade?

3. The Competition Act tries to prevent contractual agreements which can distort markets especially if they are detrimental to the consumer. 

The GMS contract effectively prevents us from performing any degree of private practice and so the "market" for private healthcare provision is essentially only provided by hospital consultants. This therefore reduces the number of doctors who can provide private medical services, and a smaller number of providers usually implies an increase in cost for the consumer (patient). 

Why then can a patient be prevented from consulting me privately to remove a benign cosmetic skin lesion, but can go to see a consultant that they may have seen on the NHS already?

The third question for our legal team is does the GMS contract contravene the Competition Act and so is unenforceable and cannot prevent us offering additional private services to our patients?

4. The law treats a company as a separate legal entity to its shareholders, directors and employees. Thus, a company is treated as a different "person" in the eyes of the law and so is not necessarily tied to any contract that a shareholder or director or employee is a party to. 

The fourth question for our legal team is whether a company formed and/or operated by partners is able to avoid the bar on charging patients on their registered list for any services, whether medical or otherwise?”

BMA Law are instructing a barrister to take the initial steps to challenge the bar on GPs providing additional private medical services to our patients.

“The initial scope of work our solicitors are being instructed to undertake is to instruct Counsel to advise on the interpretation and enforceability of the prohibition on charging fees to NHS patients under regulation 24 of the GMS Regulations 2015, which underpins Part 19 of the GMS contract,” Dr Davies said.

“They are not, at this stage, being instructed to undertake any further work in mounting a legal challenge as this would be dependent on the initial advice received from counsel as to whether such a challenge would have sufficient prospects of success.”