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Why GPC turned down a number of options for industrial action

A leaked document obtained by Pulse has revealed that the GPC was given legal advice on taking a series of forms of industrial action. Read here the full list, and what the GPC was told

Mass submission of undated resignations

‘GP practice submitting an undated resignation… will be liable for the costs of any redundancies, and potentially other costs relating to the closure of a practice, including any costs relating to premises and any other contractual obligations that the GP Practice owes to any third parties. GP Practices considering such action need to have regard to the contracts they have entered into including the provisions of any lease of premises, contracts of employment and contracts with any third parties and their partnership agreements.

‘Surveying the profession’s willingness to submit undated resignations could reveal divided views and geographical variability. In some areas, there may be a low response rate, or only a minority of GPs willing to take such action due to logistic and financial reasons alone. It is possible that GPs already intending to retire are those more likely to agree to submit an undated resignation, which would potentially undermine the aims of such action. Politically, DH statistics that show 38% of GPs intend to resign in the next 5 years which may already adequately reflect the seriousness of GPs leaving the profession.

‘It is important to note that resigning from a contract of work would effectively cease income for the GP concerned, unless alternative work was undertaken. The financial implications of this, and any additional liabilities, is likely to be a limiting factor for many GPs taking up this option.’

Industrial action that breaches contract, such as the withdrawal of routine care

‘GP Practices / Contractors could be served with breach notices, or have their contact terminated by their commissioning body, in response to industrial action.’

Increased use of external referral as a means of discharging the obligation to provide essential services

‘The mere fact that a service is an essential service does not mean that the GP Practice / Contractor has to necessarily undertake all the work involved, if it is available to the patient via external referral then the GP Practice / Contractor can deliver the essential service by way of making an external referral of the service to be provided by, for example, a local hospital.

‘Examples of services that can often be obtained via external referral are likely to include, among other things:

(i) Phlebotomy;

(ii) ECGs;

(iii) Spirometry;

(iv) Ambulatory BP monitoring;

(v) Glucose tolerance testing or any other in-house pathology services;

(vi) Routine pregnancy testing (where there is no requirement to exclude ectopic pregnancy).

‘There is no case law on whether the increased use of external referral could lawfully be used as a means of industrial action, however there would appear to be scope, albeit with some risks, that a programme of industrial action could be conducted on this basis.’

Mass applications to shrink practice boundaries

‘GP Contractors could make an application to reduce the size of their practice area, or for formal closure of their list, or to temporarily opt-out of the provision of additional services.

‘The commissioners will need to consider such applications as are made and act fairly and rationally in dealing with the same, there is therefore some scope for a series of mass applications to cause administrative difficulty for commissioners although commissioners could consider their options for responding to the same.’

Withdrawal of non-contractual, additional and enhanced services, or from QOF

‘Many GP Practices/ Contractors provide community nursing services. Sometimes these are commissioned as an “enhanced service” and when they are then any withdrawal of those services would need to be undertaken pursuant to a lawful termination or variation of the contract if it were not constitute a breach of the contract. In some cases the services are provided without any contractual obligation upon the GP Practice / Contractor, which is to say that the provision of these services via community nursing based services falls outside the scope of “essential services”.

‘GP Practice wishing to withdraw from additional services, enhanced services, or the quality and outcomes framework will need to have regard to the contractual notice provisions to which these are subject and give appropriate notice of such termination.

‘The commissioning body may procure the additional or enhanced services from another provider and may decline to offer the GP Practice with the opportunity to provide such services in the future.

‘A GP practice who ceases to provide additional services will lose a defined % of their global sum. A GP Practice who stops providing enhanced services will lose the payments related to that.

‘A GP practice who withdraws from QOF will lose the payments associated with the same. If they later re-join QOF in the same financial year they will find that the work required to satisfy the scheme is still required.’

Mass list closure campaign

‘We are firmly of the view that where the reason for refusing an application to join the patient list is inspired by genuine patient safety concerns then it will be lawful for GP Practice / Contractors to do the same. The BMA has produced guidance on this. It may well be that some GP Contractors should be considering refusing access to their patient lists on patient safety grounds and if general practice continues to be underfunded then this is likely to be.’

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