Revealed: The internal GPC memo that shows GP industrial action is legal
Exclusive The GPC decided against balloting the profession on industrial action, despite its lawyers advising that mass action to shrink practice boundaries and reduce the threshold for referrals would be legal ways to protest.
A leaked document obtained by Pulse reveals legal advice the GPC received on a number of potential actions in response to the crisis in general practice and the thinking behind the decision made this week not to canvass the opinion of GPs.
BMA lawyers said that action including mass resignation, closing patient lists and withdrawing routine care, were all legally problematic.
But there were a number of actions that were found to be legally valid, including mass applications to shrink practice boundaries, increasing referrals, stopping non-contractual, additional or enhanced service work, disingaging from the QOF and stopping unnecessary nursing home visits.
The LMCs Conference voted in May for the GPC to declare a 'trade dispute' and ballot for mass resignation and/or industrial action if the GPC's Urgent Prescription for General Practice was not accepted in full.
This week, the GPC said it had a commitment from NHS England to negotiate on aspects of the GPC’s ‘Urgent Prescription for General Practice’ and GPC chair Dr Chaand Nagpaul told Pulse this week legal advice and feedback from GPs contributed towards it dropping plans to ballot the profession on mass resignation.
The leaked memo reveals advice to the GPC on potential actions that the GPC could ballot the profession on, including:
- Mass submission of undated resignations
- Industrial action that breaches contract, such as the withdrawal of routine care;
- Mass applications to shrink practice boundaries;
- Increased use of external referral as a means of discharging the obligation to provide essential services;
- Withdrawal of non-contractual services that GPs voluntarily provide;
- Withdrawal from additional services, such as the provision of contraceptive services;
- Withdrawal from enhanced services, such as the provision of minor surgery, extended hours;
- Withdrawal from the QOF;
- Temporary suspension of new patient registration.
It found there were legal and political risks in mass submission of undated resignations, including concerns that there wouldn’t be sufficient will from the profession, and with any form of action that will breach the contract.
However, many of the actions would have been lawful, it found, if there was an official 'trade dispute' declared.
It said that there was 'some scope for a series of mass applications to cause administrative difficulty for commissioners' through 'applications to shrink practice boundaries'.
The legal advice also suggested the option of referring for services that could be provided by practices, such as phlebotomy, ECGs, spirometry and routine pregnancy testing, adding there 'would appear to be scope, albeit with some risks, that a programme of industrial action could be conducted on this basis'.
Practices that supported the withdrawal of additional and enhanced services 'will need to have regard to the contractual notice provisions to which these are subject and give appropriate notice of such termination', and could 'take steps to ensure the provision of essential services via other means such as external referral', it said.
But the advice also found that any form of industrial action could be problematic in terms of PR. It said: 'Surveying the profession’s willingness to take industrial action could reveal division and geographical variability within the profession. In some areas, there may be a low response rate, or only a minority of GPs willing to take such action.
’Clearly, any proposals for industrial action must balance the intended impact with the effect on patient care, ensuring that patient safety remains paramount during any action. Consideration must also be given to the reaction from patients, the public and the media.’
Several GPC members told Pulse earlier this week they were upset with the GPC’s refusal to ballot the profession on any form of industrial action as they didn’t feel that the promise of negotiations fulfilled LMC demands.
But the GPC says it believes that the committment was sufficient to ‘satisfy the motion’s requirements'.
Read more about the GPC’s decision to rule out a ballot of the profession