CCG constitutions legally binding whether signed or not
Exclusive: GPs will be tied to legally binding agreements drawn up by their CCG whether they sign them or not, after the NHS Commissioning Board revealed they were not necessary to pass authorisation.
The board told Pulse that CCGs could be authorised without providing a single signature to prove that local practices have approved the constitution, as long as they can provide other evidence that they have engaged GPs.
Less than a month before the first wave of CCGs are authorised, official GPC advice that GPs should only sign constitutions they are comfortable with has been plunged into doubt.
Negotiators are urgently seeking clarification from the board after it emerged that there is no fixed threshold for the proportion of practices signed up to constitutions as part of the authorisation process.
The GPC warned in September that CCGs were pushing GPs to sign constitutions holding practices to performance management targets and incentive schemes (see box).
Their advice was to refuse to sign, but it has since emerged that this provides no protection because, after authorisation, the constitution is legally binding on all practices in the CCG – whether they have signed or not.
The GPC admits that GPs who refuse to join a CCG face being forcibly allocated one from April 2013 and signed up to its constitution, after the GPC agreed as part of the 2012/13 contract negotiations that all GP practices in England would be contractually required to be a member of a CCG.
GPC negotiator Dr Chaand Nagpaul said: ‘We are seeking clarification ourselves and it is hard to give a definitive answer.
‘What we do know is that every practice will need to belong to a CCG. If a practice has not signed it will still be allocated to a CCG – and that CCG will have a constitution.’
Dr Nagpaul said the GPC did not want any further obligations on GP practices, but said it was currently in negotiations with the DH over GPs’ contractual duties to support their CCG when it is authorised.
Dr Nigel Watson, chief executive of Wessex LMCs and chair of the GPC commissioning subcommittee, said: ‘There is nothing in the rules that says 100% of practices need to sign up.
‘We’ve asked whether, if 100% of practices aren’t signed up, does it mean the CCG doesn’t get authorised and the answer is “no it doesn’t”. But if they had fewer than 50% sign up, that would indicate that they didn’t have the support of practices.’
A spokesperson from the NHS Commissioning Board said the 50% figure was not correct and it was up to individual CCGs how they signed off their constitution. She said: ‘CCG constitutions are legal documents and member practices will need to abide by their terms once CCGs take up commissioning.’
She said GP engagement was an integral part of the authorisation process – but this could be demonstrated by letters of support, 360-degree feedback or other evidence of involving practices in commissioning decisions.
‘There will be all sorts of ways to measure GP engagement with CCGs and [signatures] are just one of them. There could be CCGs without any signatures.’
BMA lawyer Alex Fox, partner at Manches LLP, said: ‘Signing is not a legal test – when the constitution is approved by the board, it is authorised.’
Dr Tony Grewal, medical director of Londonwide LMCs, said the move was designed to make it more difficult for practices that were not co-operating with terms put forward by their CCG.
‘The intimidation starts from the top. It started with the DH and is trickling its way down to practice level,’ he said.
A GP in south-east England, who preferred to remain anonymous, said he was concerned as he was refusing to sign his local CCG constitution due to clauses that made it hard to hold CCG board members to account.
He told Pulse: ‘If the NHS board goes ahead and authorises CCGs anyway, it cannot claim they are GP-led.’
What should not be in CCG constitutions
• Performance management of practices
• Powers to expel a practice
• Incentive schemes
• Obligation to undertake CCG work