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Where now in the battle over the MPIG?

The BMA is confident it can make ministers back down over the MPIG freeze, but an obscure contract clause could undermine its case.

By Gareth Iacobucci

The BMA is confident it can make ministers back down over the MPIG freeze, but an obscure contract clause could undermine its case.

It would be interesting to be a fly on the wall the next time Government negotiators suggest their BMA opposite numbers sign up to a new clause in GPs' contracts.

It's a fair guess GPC chair Dr Laurence Buckman and his team may not be overly keen to acquiesce next time around, after legal small print once again came back to haunt them – this time over the attempted challenge to the freeze on the MPIG.

Twice in the space of a few months the GPC has found itself in danger of being outmanoeuvred by the Government, after agreeing to what had seemed innocuous clauses in the GP contract.

First, there was a clause agreed when the contract was signed in 2004, allowing the Government to unilaterally impose future contract changes. The BMA is adamant this was in place to cover national emergencies, ranging from bird flu to nuclear war.

But last year, when ministers pressed the red button, the supposed emergency was an alleged lack of access to GP surgeries. Practices in England and Scotland were forced to agree to offering extended hours under threat that a much worse deal would be imposed.

Now the BMA is locked in another legal standoff, with claims that a 2006/7 clause modifying the GP contract could undermine its threatened challenge to the MPIG freeze.

The freeze meant only a few practices benefited from the 2.7% increase in the global sum and, according to Westminster insiders, left the Department of Health crowing at how easy it was to get the better of their GPC adversaries.

Legal debate

Having got away with their use of the 2004 contract clause, department sources say ministers are ultra-confident they will withstand any legal challenge to the MPIG freeze, which they see as just the first step to phasing it out altogether.

The legal debate surrounds a clause inserted in the GP contract after negotiations at the turn of 2005/6, and subsequent changes to the contract that April. The offending paragraph states: ‘It was agreed future uplifts to the global sum should seek to reduce reliance upon correction factor payments and so release an element of the correction factor envelope.'

Dr Buckman, who was in the negotiating room in 2004 and in 2006, insists there had been a clear agreement between both parties at the time, which has since been twisted out of all recognition. ‘We don't think it is open to other interpretations,' he says.

‘In 2006, it was agreed because it's always been our policy that the MPIG was a measure brought in because of ministerial interference in the original contract, and in the event that it wasn't necessary we would be willing to see it go.

‘But you can't just wipe it away, and you can't have a situation where practices are going to be damaged by loss of the correction factor payments. At the moment, for many practices, it's a huge part of their income.'

Dr Buckman believes the BMA can win a court challenge, although it still awaits an official response from the department to a letter challenging the decision.

‘The MPIG was an emergency measure which has to exist in perpetuity, until such time as it's not needed,' he adds. ‘The only way you could not need it would be if you reduced people's reliance on it. The only way you do that is if you raise the global sum.

‘Successive DDRB reports have paid no attention to that whatsoever, and the Government, in accepting the DDRB's report this time round, has taken a step we believe is legally challengeable. It's had our letter some weeks ago now. I'm not sure it will fight this.'

The BMA is buoyed by its victory over GP pensions, wrapped up in little more than a day at the High Court in March. A judge ruled the Government acted unlawfully in 2006 when it announced it was to cap the pensions dynamising factor – a way of bringing GP contributions to current values – to 48% over five years.

The cap would have reduced some GPs' pensions by as much as 10-15%. But accountants warn the two disputes are very different.

Bob Senior, vice-chair of the Association of Independent Specialist Medical Accountants and a partner at accountants Tenon, says: ‘It's not anywhere like as clear cut as the pensions judicial review, because here the Government is not, on the face of it, applying something without agreement of the BMA negotiators.'

Mr Senior says it is ‘unfortunate' GP leaders agreed to ‘such a woolly phrase' as the 2006/7 clause: ‘It would appear negotiators have agreed it, but in a fairly woolly manner, and the Government has applied it in a much harder-line way than was perhaps anticipated. It demonstrates the need for clauses like this to be very carefully defined and drafted, because they do come back to haunt you.'

Dr David Spiers, a GP in Exmouth, Devon, claims he voiced his concern at the time but was ignored. ‘I raised it as an LMC member,' he says. ‘But I was told the GPC wasn't worried. One should always be careful with something that could end up in a court of law. It was naive.'

Out of context

Dr Richard Vautrey, GPC deputy chair, strongly denies such a charge, insisting both parties were ‘very clear' on the terms of the 2006/7 clause.

‘It has been taken out of context and selectively quoted in a particular way. The agreement was made in 2006 in good faith and we were explicit about what it meant.'

The BMA will be cheered by the views of at least one top lawyer, who after examining the documents believes the GPC may yet emerge triumphant.

Andrew Lockhart-Mirams of Lockhart's solicitors, who drew up the standard PMS contract and worked with the BMA on the 2004 GMS deal, says he does not believe the clause can override the original agreement that the MPIG was guaranteed ‘in perpetuity'.

‘I do not think so, as the clause does no more than express an intention that extra money would effectively lift some practices out of reliance on the MPIG,' he says.

The majority of GPs appear to support the GPC's legal challenge, although it means the pay award and agreement over clinical funding will be delayed. But support does not necessarily translate into confidence of success.

Dr Terence Kenny, a GP in St Helens, Merseyside, says: ‘I'm pleased the GPC has mounted a legal challenge, but I wonder if it'll make as big a mess of this.

‘The negotiators probably didn't fully understand what they were agreeing. You've got the BMA, who are working doctors, and not legally trained on these things, pitted against the top lawyers from the Department of Health. They can run rings around them.'

Hours outrage

It would not be the first time. There was outrage when the Government evoked the 2004 clause to give GPs the unwelcome choice of extending opening hours or an average £18,000 pay cut.

The BMA cried foul, claiming the Government had gone back on the spirit of negotiations, using a clause expected to cover national crisis, not extended hours for GPs.

But an analysis of the contract suggests that nothing in writing exists to back the GP leaders up. The actual clause is wordy but in effect gives the secretary of state freedom to do whatever they want in whatever circumstances – provided sufficient notice is given. Relations between GP negotiators and the Government at the time were nothing like the mutual loathing of today. They clearly did not expect to be betrayed.

Dr Trefor Roscoe, a GP in Sheffield and ex-GPC member, says: ‘Nobody on the BMA side could have imagined how aggressive and uncompromising the Government would end up being. I think the Government has outmanoeuvred us and we're pretty much sunk.'

As Dr Fay Wilson, a GP in Birmingham and chair of the LMCs conference puts it, stipulations that unilateral changes would only be made in a ‘national emergency' were not written into the contract, leaving the GPC powerless. She says ‘People may have lied to you, but if it's not written down in the formal documentation, the question is, can you prove it?'

There is a lesson here. The GPC will surely be reluctant to sign up to any future contract, until it has been checked and checked again.

The killer clauses

2004
GP CONTRACT

Clause 1
'The Primary Care Trust may vary the contract without the contractor's consent where it -
(a) is reasonably satisfied that it is necessary to vary the contract so as to comply with the Act, any regulations made pursuant to that Act, or any direction given by the Secretary of State pursuant to that Act; and

(b) notifies the contractor in writing of the wording of the proposed variation and the date upon which that variation is to take effect, and, where it is reasonably practicable to do so, the date that the proposed variation is to take effect shall be not less than 14 days after the date on which the notice under paragraph (b) is served on the contractor.'

What this means for GPs
The new GMS contract included the option for the Government to unilaterally change terms and conditions. Everyone thought the clause was intended for a national emergency, such as a bird flu epidemic. Four years later it was used to give GPs an ultimatum – offer extended opening or take an average £18,000 cut in funding.

2006/7
CONTRACT REVISIONS

Clause 2
'It was agreed that future uplifts to the global sum should seek to reduce the reliance upon correction factor payments and therefore release an element of the correction factor envelope.'

What this means for GPs
A recent report by the DDRB, gleefully accepted by the Government, took a hard-line interpretation of the clause. Although ministers have agreed that the global sum should be increased by 2.7% for 2008/9, the MPIG will be frozen. This means practices relying on the MPIG will see their correction factor payments fall – and a third successive pay freeze.

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