This month, the BMA GP Committee said it would look at ‘all options’ including ‘industrial or collective action’ in response to an ‘insulting’ contract offer from NHS England. Pulse asked legal experts, GP local leaders and the BMA about whether GPs would be able to take strike action
GP partners are in a situation of not being employed, so the issue is one not of an employment contract (of services) but a commercial one (for services).
Consequently, while the GPs and the BMA could term what they might want to as ‘strike’ or ‘industrial action’, in actual fact, this would be a situation of breaking a commercial contract.
Theoretically they could decide to shut for the day and therefore breach their contract, but this would constitute collective action and not industrial action.
Depending upon the content of those contracts, there could be financial (likes fines) and other consequences for doing so (like termination).
But the political reality is – given existing demand pressures upon GPs relative to the number of GPs with many leave general practice and the lack of a new supply of them from universities etc – that any health authority is not likely to do much that would jeopardise the continuation of those contracts for fear of creating even more disruption and eliciting a huge public backlash.
Professor Gregor Gall is an industrial relations professor at the University of Glasgow
In order to take legal strike action, there has to be an industrial dispute with your employers. If the trade union hasn’t gone through the necessary procedures, they lose their immunity from civil action and are at threat of being sued. Recently, the Communication Workers Union had to halt industrial action with Royal Mail because of the threat of legal action in relation to technical failings with how the industrial action had been convened.
GPs can’t be in an industrial dispute with their employers because partners are not employees. But they can be in a dispute with the contracting body, their commissioners.
As long as the BMA’s ballot is lawful, there is no reason GPs cannot close for the day as a form of industrial action (or only offer urgent care).
Daniel Wilde is a partner specialising in employment law at Harding Evans solicitors
Industrial action is withdrawing labour from the employer, and is called by a trade union. If someone is self-employed they do not have an employer, and therefore they cannot take industrial action. Of course, anyone can say that they will not work – but if someone who is self-employed does this they have no protection from the organisation simply deciding not to give them any more work, so this is a risky route. An employee is protected against dismissal for 12 weeks (and after that any dismissal must still be fair).
But if all GPs refused to do the work, the NHS couldn’t say we won’t give you more work because they need GPs to work. There is not a widely available pool of people to replace them. This is different to a situation where the work is less skilled. For example, if a courier firm used self-employed contractors and they all refused to work, there is a pool of people who could be recruited to do the work. This is not the case with GPs.
Kathy Daniels is a professor in employment law at Aston University
Generally GP partners are contractually obliged, via their PMS or GMS contracts, to provide certain services to certain patients at certain times. If a GP contract holder were deliberately to cease to provide their contracted services, or part of them, they would probably be breaching their contract. The question then is what the commissioner decides to do about the breach. They may not take any action. But they may decide to take informal action (discussing the breach with the contractor) or even to take formal action.
Formal action could include issuing a breach notice to the practice, or even imposing contract sanctions. Sanctions might include withholding or deducting moneys that are payable under the contract that has been breached. And at the most extreme end of the scale, GP contract holders could ultimately have their contract terminated if they continue to ignore breach notices. Many practices may feel that this is unlikely in current conditions, as there may not be other providers queuing up to take over their patients if their contract is removed. But of course every practice has to consider its own situation as regards how well placed the ICB is to take action against them for withdrawing their services.
If strike action is called that won’t relieve partners of their duties under Good Medical Practice – which is particularly relevant if patients are left without access to care. If the action goes ahead no doubt the BMA will take a position on ensuring a minimum service continues.
Rachel Kelsey, solicitor with law firm VWV
The GP view…
Whatever the appetite is, as independent contractors it’s inedible. As independent contractors, if we strike, we’re immediately in breach of our contract and can have our contract taken away from us. That is not the same position as an employee having a row with their employer.
Me going on strike doesn’t mean I earn nothing – it means I lose shedloads of money because I am obligated to pay my staff and all the ongoing bills of the practice and yet there’s no income coming in.
Then there’s the legal issue – you cannot induce colleagues to breach their contract.
Striking is a blunt tool, but I can see GPs doing rather more sophisticated things. The Government might have great difficulty innovating things because we won’t cooperate. The Government may have difficulty getting us onside with any new initiatives because people are too busy working, they are too exhausted, they are too fatigued.
The bottom line is that there are more subtle ways GPs can do things rather than just not be there. Is there an appetite for a short, sharp shock for the Government? Yes.
The way this would work is if we all stand together and act together. But if you get the kind of nonsense that occurred over the pensions debacle a few years ago, where a few took action and the rest didn’t, there is a serious risk that the few that take action will then get victimised.
So, is there an appetite? Yes, there is. But the risk is indigestible unless everybody does it. I don’t think it’s unlikely, I think it’s going to require some effort. We are at the point now where, if we don’t get a new contract and we do not reduce our workload, there will be no general practice left because people are leaving in droves.
Dr Peter Holden, GPC rep, Derbyshire
I have yet to see a clear plan for effective collective action by GPs as the legal situation for independent contractors is complex and action by employed GPs would adversely affect their GP employers. It is also very unlikely that GPs would support such action as their relationship with patients and their links to their local community make this a very difficult choice. Paradoxically NHSE policy which seems to be moving towards a salaried service would increase the chance of successful industrial action.
I have no idea why the GPC is wasting time on this issue instead of pressing for workload control by limiting list size, controlling patient contact numbers and stopping all unfunded work.
Dr Brian Balmer, chief executive of the Essex LMCs
I think the term “industrial action” isn’t applicable to practices. Industrial action normally applies to people in employed roles. I would hope our salaried doctors would not wish to take IA against the GP partners as their employers.
We are all aware the mood of general practice is not good; the workload is intolerable and staffing levels getting worse by the day. There is only so much that GPs can take – many are voting with their feet and those that remain are getting increasingly disillusioned. Many feel they have no power to influence their situation, and no-one is listening. This makes them frustrated and angry
Against this background GPs are increasingly looking at what they can do to take back some control. They feel they are faced by a government that does not care and just piles on the pressure to see more patients and improve access. They may well resist some of the pressures and governance requirements placed on them by NHSE but this falls short of anything that can be classed as Industrial action.
Peter Higgins, Chief Executive, Lancashire & Cumbria Consortium of LMCs
The backbone of general practice across the UK is the partnership model, which is under stress and threat currently with the way the contract is being managed or negotiated. With the PCNs having quite a generous amount of funding, it doesn’t necessarily help the practices with their core contract. The IIF as well as the ARRS funding are potentially causing an imbalance in what is available to core contract and the partnership model.
My view is that the government need to think about this very carefully and fund the partnership model in a better and sustainable manner for general practice to survive.
The PCN DES is coming to an end. While the government has generously invested in the PCN fund, it doesn’t necessarily help the practices.
I think general practice is fed up and very upset, and does not know what to do and has nowhere to go. If the current funding structures continue, this could be the end of general practice and the partnership model as we know it. The government needs to invest in the core contract and the GMS contract, that’s what it needs. That is the most important, fundamental thing around all of this. The money that is being invested in the IIF, £170-odd million, 70% of that is not going to be benchmarked, and that’s open to abuse. People want to see funding, taxpayers’ money, used in a fair and proportionate manner. People want to see taxpayers’ money invested in a way that will help practices, not make it more difficult for them.
Dr Ivan Camphor, GPC rep, Cheshire and Mid Mersey
I think there’s an appetite for industrial action, but the problem is there’s no understanding that we can’t do most acts of industrial action. I think most GPs, people working in primary care, would love to take some sort of coordinated action which wouldn’t damage patients but would change what we have at the moment, because what we have at the moment is unsustainable, it’s killing us all. But the reason why I don’t think that will actually happen is because we can’t strike and we can’t agree on what else we will do.
When you look at all the types of coordinated action that we could do, for example not signing death certificates or not doing home visits, the problem is all of that has a negative impact upon patients. There’s no point in doing any kind of coordinated action that negatively impacts patients because it’s not going to help your cause. So, the real issue that we have is that there’s no agreed plan of what we can do that will scream to government that we need help but will not harm patients.
Dr Dean Eggitt, LMC chief executive, Doncaster
The BMA view…
A BMA spokesperson said: ‘We will be considering all options in relation to ensuring we see adequate funding, and safe working conditions. The General Practitioners Committee in England recently rejected inadequate updates to the GP contract in England for this year, and continues working towards securing a safe and fair new contract for general practice for 2024 and beyond, when the current five-year framework comes to an end. Discussions with GPC England and LMCs will be vital in shaping the direction we take next.’
