Dilemma: Staff use training sessions for holiday
The CCG occasionally provides half a day’s locum cover so local practice staff can attend training. But when it discovers many staff (including your employees) take it as leave, don’t attend it all, or do in-house training instead, it decides to discipline them for breach of contract. How can this issue be best resolved?
Dr Tony Grewal: Start by clarifying the nature of the agreement
There are a number of issues raised by this scenario and the CCG and the practice involved would need to clarify them. The exact nature of the agreement between practices and the CCG needs to be looked at. Was it made explicit in the agreement that cover was provided solely for practices to attend CCG ‘official’ training or was this merely an ‘expectation’? Does locum funding come from the CCG budget or from NHS England?
Three different practice actions must be addressed separately: taking ‘leave’ at the CCG (or NHS England)’s expense, which may well be criticised or even result in disciplinary action, clawback of costs or even an action for fraud; partial attendance (raising the questions of whether the training was not relevant, or the cover insufficient); in-house training (also raising the question of, if training were of sufficient quality and relevance, then why is the CCG insisting on using their training if the outcomes are the same?).
‘Breach of contract’ is a very specific allegation. Which contract does it refer to? If there was a contract between the CCG and the practices, then it may be the case. If it refers to the contract with NHSE (GMS or PMS) then there is no clause within those which has been breached. Disciplinary action by the area team could only apply if practices were in breach of their GMS/PMS contract or the Performers’ List Regulations, which does not appear to be the case here.
It would be a pity to see such an admirable arrangement fail on the basis of poor communication and misunderstanding. The CCG should make the purpose of this initiative clear to practices and obtain agreement (in writing) from those practices engaging with it - ideally with LMC involvement.
Unless practices had breached a clear written arrangement, when it might be necessary to negotiate a clawback of costs, then a line should be drawn and future arrangements made explicitly clear.
Dr Tony Grewal is a medical director at Londonwide LMCs.
Dr Andy Mimnagh: Review the current contract terms
The initial approach should be a review of the current contract terms - if any - between a provider representative, the LMC, the CCG and the NHS England area team as contract holder.
The ‘terms of variation’ for the cover for closure should be placed in writing and all parties accepting/providing cover should sign to abide by the terms.
The LMC should encourage practices to honour these contracted terms for cover. Annual leave should not be required to be interrupted, and a percentage figure for numbers of staff who must attend over a quarterly or annual cycle should be explicitly stated.
The CCG should also reflect on the learning content of the sessions. A preference for in-house training suggests the formal programme was not meeting provider needs adequately.
Staff who are absent from their contracted position and not at the event should be the subject of initial enquiry from the contract holder and/or internal disciplinary sanction. Formal action against the contract holder is not appropriate at this time.
The willingness of the CCG to escalate the matter to external bodies suggests it has not embedded a “membership ethos” in its own officers and member practices. This should be recognised as symptomatic of a wider issue and rectified.
The obligations binding all participants should be clearly redefined and the program jointly re-launched by CCG, NHS England and the LMC.
Dr Andy Mimnagh is a GP in Liverpool and former medical secretary of Sefton LMC.
Noel Wardle: Apologise and reassure the CCG
Under the GMS contract, doctors are required to co-operate with the secretary of state, who has a duty to provide an effective system for the delivery of education and training. The GMS contract is made between NHS England and the practice. Failure to attend the whole training session might be a breach of contract, but the CCG is not a party to the contract. The GMS contract says that if a breach can be remedied, NHS England can serve a notice on the practice requiring the remedial steps. If it cannot be remedied, a notice can require the practice not to repeat the breach.
If the CCG has paid for a locum unnecessarily, it is easy to understand why the CCG may be unhappy but formal disciplinary procedures seem disproportionate. I suggest it would be appropriate to apologise to the CCG for the failure to attend the whole of the training session.
Reassurance can be given to the CCG that the practice is committed to education and training and the CCG can be reminded that the ethos of the NHS is to resolve disputes informally wherever possible. The practice could also consider repaying all or part of the locum fee paid by the CCG.
Noel Wardle is joint head of healthcare and partner at law firm Charles Russell LLP.