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Ministers ‘got it wrong’ on PMS contract termination, High Court hears

By Gareth Iacobucci

A group of GPs has begun a High Court legal challenge to PCTs' right to unilaterally terminate PMS contracts, claiming that former health secretary Andy Burnham was not entitled to alter regulations last year.

The group of 20 GPs from Havering and Greenwich are challenging their PCTs and the Department of Health on whether the secretary of state was entitled to insert a new clause into PMS contract regulations that effectively allowed 'without grounds' terminations.

The case has been brought following moves by NHS Havering and NHS Greenwich to write in 'variations' to PMS contracts allowing unilateral contractual terminations - a move that GPs fear could be used to impose reduced levels of funding or tougher performance measures.

The changes were brought in by Mr Burnham last year following the test case of dentist Eddie Crouch in 2008, who established it was then illegal for PCTs to terminate the dentists' equivalent of a PMS contract without cause.

Barrister Simon Butler from Ely Place chambers, representing the GPs, said the former secretary of state had ‘got it wrong', because the 2010 regulations were ‘inconsistent' with 2004 PMS regulations.

He said: ‘We say the [2010] regulations as adopted are wrong in law, because they are inconsistent with 2004 legislation.'

‘The secretary of state couldn't introduce something which permitted participants, other than contractors, to remove from schemes.'

‘The secretary of state got it wrong. The secretary of state was not entitled to introduce regulations in that way.'

Mr Butler also outlined the potentially detrimental affect of PCTs terminating PMS contracts with such little notice, arguing that practices would not have time to adjust their services if they were moved onto GMS contracts.

He continued: ‘The PCTs' argument is that it has to be fair remuneration between GMS and PMS. But the whole point of PMS contracts is there was a difference in standard of service provided by these contracts. I've not seen any evidence to suggest six months' notice would cater for that… to adjust services to their patients.'

But the Department of Health's defence counsel insisted that the 2010 legislation had usurped previous regulations, arguing: ‘The 2010 regulations are legislation in exactly the same way as the 2004 regulations were. This is simply a subsequent piece of legislation.'

The defence added: ‘There are not and have never been purely private arrangements between a PCT and a doctor. These contracts [PMS] contain recognition of the statutory framework in which they operate, which can be varied according to the secretary of state.'

‘It's very clear that PCTs act accordingly to ensure their PMS contracts remain compliant with regulations he is making.'

The defence barrister also argued that it was inappropriate to compare the PMS challenge with the Crouch case, because, unlike the dental contract, PMS contracts did not have to be time-limited.

He said: ‘There is no requirement that a PMS contract [post-2004] is time-limited. PDS contracts do specify the duration of the agreement.'

GPs are challenging PCTs' right to unilaterally terminate PMS contracts in the High Court GPs are challenging PCTs' right to unilaterally terminate PMS contracts in the High Court