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Independents' Day

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.

Click here to read the editorial: GPs must approve constitutions

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

Source: BMA

Readers' comments (7)

  • another imposition- and where are the BMA? will it ever stop?

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  • Let's face it , the profession has been, and continues to be, totally shafted. Where indeed is the BMA - and where have they been for the past two years? They have been totally and utterly useless. It's now quite clear that the new role for Practices is to do exactly what they're told by DoH via their CCGs. And it was all so foreseeable....

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  • I have just completed drafting a contract with her majesty's government entering into a partnership with myself and claim a 50% equity of the gross national product of the United Kingdom Of Great Britain and Northern Ireland.
    Unfortunately a party to the contract has not signed it , but I am so glad it is binding.
    I regret I do not consent to any other person entering the partnership, but I will think of you all when I am reclining on the 50% timeshare on Necker Island courtesy of the other contract that another party to the contract also has not signed but is clearly binding by the same peverse logic.
    I am also marrying Kathryn Jenkins without her being present or signing the marriage contract, to accompany me.
    I cannot believe anyone seriously belives that several hundred years of contract law can be dispensed with in the manner the government suggests.
    "the Party of Business" - not if they do not know contract law.

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  • I agree with Andrew.
    Has anyone had a legal opinion on whether it is possible to impose acceptance of legally binding contracts on small businesses such as GP practices?
    I appreciate that it was established in 1990 that the "GP Contract" is *not* a Contract in the legal sense of the term: but surely this is something different?

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  • The problem is that the DH doesn't actually understand when and how to use the word "legal"; you can see this in its use in the NHS constitution; the mandate; and many other areas.

    A patient has the algal right to 18weeks.... They breach. Who do they sue; where do the damages come from?

    The NHS trust contracts with pcts are legally binding; errr no they're not.... Ft contracts might be but needs to be tested and probably not. IS providers yes, which is why they go wrong because the DH doesn't know how to contract.

    Ccgs are an arm of the NHS; you can't have a legally binding contract. GP practices are independent small businesses with no formal relationship to ccgs and this seems to have escaped notice.

    Without formal sign up ccgs are no more than pcts; pcgs; HAs; DHA's; RHAs............ With no engagement from GPs.

    No surprise there then.

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  • Anon. 8.57 - interesting line of argument. Yes, PCTs, SHAs, and the rest all existed in the legal personality of the SoS, so no legal contract between any of them or with DoH was possible. I haven't studied the wording of the new Act, so not sure if CCGs have same relationships. Perhaps an important question is - who are CCGs' Accountable Officers accountable to? Presumably the NCB. So, are they legal "persons" distinct from NCB to enable formation of a legal contract?

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  • I don't think the accountable officers are extant from the NHSCB. This is on the grounds that they are subject to the same staff terms and conditions as those working in the Trusts; NHSCB etc. this might be slightly tenuous but reinforces the view of "one" NHS? They are also subject to DH/NCB guidance without negotiation etc.

    Ccgs, as far as I know, will not be having contracts with the LATs to spend NHS money; therefore remain part of the NHS, subject to the same rules of performance as over the last few decades.

    The only line of independence is between the GP practices (as IS contractors) and the CCG. This must have a contract.

    Although to be honest all the above arguments could also apply to the GP independent status and might invalidate that if tested in a court (I don't know if it has already?)

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