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Ensuring your practice is beyond reproach

Avoiding financial influence on your clinical practice, or conflict of interest in your referral or commissioning decisions, is a growing challenge for GPs. Here, the GPC's Dr John Canning addresses some common dilemmas

Your practice is part of a prescribing incentive scheme but there are elements you do not agree with clinically. However, one of your partners is keen to follow it.

You should start by considering why you disagree. It could be because you are not up to date with that aspect of care. On the other hand, the scheme might be based on out-of-date evidence. Or there may be a genuine difference of opinion about the correct therapeutic approach, with no rights or wrongs.

You and your partners need to discuss this in a rational and informed way at a partners meeting. This should not be a meeting in surgery in between patients or in the corridor, but a meeting outside the pressures of practice, with enough time and proper notes taken and written up. You may wish to invite a prescribing adviser or lead, or at least get their written views on the situation circulated in advance. Unless there are other fundamental partnership dysfunctions, you should be able to reach a conclusion.

It may be a bit over the top for this problem, but if anyone tells me they have a disagreement with a partner my first question is ‘do you have an up-to-date partnership agreement?'. Anyone practising without one is foolhardy and asking for trouble. Get it sorted today – it may cost but is worth it.

Your LMC suggests an LES that includes payments for reducing your referrals – do you sign up?

If this really is an LES that is solely to reduce your referrals, you should have nothing to do with it. The duty of a doctor is to act in the best interest of the patient, albeit within the constraints of the service.

Accepting a financial payment not to refer patients would breach GMC guidance in paragraph 74 of Good Medical Practice: ‘You must act in your patients' best interests when making referrals and providing or arranging treatment.

‘You must not ask for or accept any inducement, gift or hospitality which may affect or be seen to affect the way you prescribe for, treat or refer patients. You must not offer such inducements to colleagues.'

I hope the LES is actually one to resource your practice team for taking time to reflect and analyse referrals, or for undertaking additional work that you are competent to do in your practice rather than refer patients to secondary care for services.

This would then be a rational and reasonable LES to accept. In fact, it is likely to improve patient care as well as enabling better use of resources.

Your practice-based commissioning group, in which you hold a position of responsibility, wants to commission a GPSI service. You think the best one available is at your own practice. What do you do?

You must ask yourself two key questions here. Firstly, who made the assessment that this is the best service? Secondly, who will make the decision to award the contract? You must then ask yourself, were you involved and, if so, how? Most practices are traditional partnerships, to which the provisions of company law do not apply, although some are setting up associated companies to undertake some or all of their services. I don't think the distinction is relevant here though. You should avoid the potential conflict of interest entirely and take no part in any aspect of the commissioning process for this service – whether it be assessment or contracting.

Under the current arrangements, with PCTs having ultimate responsibility for commissioning, the trust should have the appropriate safeguards in place to ensure there is no conflict. Once GP commissioning is in place, the GP consortium will have the final say about commissioning decisions. In these circumstances, avoiding conflict could be much more problematic.

You want to be involved in the running of the local GP consortium and also be part of an organisation providing NHS services to the consortium. Is that reasonable?

I doubt it. Although we don't yet know the management and financial control arrangements for GP consortia, there will be a requirement to account for public money in a safe and effective way. The extent of your involvement in the organisations is the key question, and one on which personal legal advice will be needed.

Being a director of the provider company will almost certainly constrain your involvement in some or all of decisions within the consortium. Likewise, although flexibility and local determination are promised, being a board member of the consortium must similarly constrain any involvement with decisions it takes about your provider.

I am sure GPs will need to make strategic decisions to taking any role either in a provider or commissioning body.

To do otherwise will surely lead to adverse publicity, accusations which may be hard to rebuff or even worse lead to breaches of the law.

Your partners feel the practice has informally done an element of work for which there are QOF points, and feels it should claim the points, but you're not sure.

There is no such thing as ‘informal' activity of this type; QOF work has either been done or has not. I don't think it has been done here.

While claims for QOF payments by a practice are signed off by one partner, they are made jointly and severally and you are likely to be responsible for the actions of the other partners unless you have taken clear, and recorded, steps to prevent the claim.

To make a claim for something not done, or not done properly, is fraudulent. You must ask your partners how they would demonstrate it has been done. If they can't, the claim may be improper, and you could be reported to the NHS Counter Fraud Service or end up appearing in court or before the GMC.

You must talk to your partners and the practice manager – and if you are still concerned call a partners' meeting urgently. Once again, this is a time when having a partnership agreement is vital.

You want to work with local practices to provide services and share resources. There's no need to call in the lawyers is there?

If doctors and practices always got along fine we would be happier and the lawyers poorer, but life is not like that. Any arrangement between practices needs to be formal and documented.

The more complex the arrangement, the more complex the structure needs to be.

I would not want to start providing services or sharing staff or other resources without a formal arrangement and clear governance.

One starting point for major change might be to consider the establishment of a limited company as the vehicle. Whether this is ‘for profit' or ‘not for profit' is a logical next question; as an alternative you may wish to merge as a single partnership.

You may choose not to set up a formal organisation, but this is likely to make simple things like managing money or bidding for services a problem.

More worryingly, there would be no mechanism for resolving disagreements. Spending time and some money getting arrangements set up properly will put you in a position to bid for work as a safe and effective organisation.

Your practice or its partners are looking for ways of minimising the tax burden – where do the boundaries lie?

No one likes to pay tax, but without it we would not have an NHS to work in. Minimising our tax burden is something we all want to do and is a reasonable activity, but it must be avoidance, not evasion.

But in truth, the boundaries are where you and your advisers set them and vary from person to person. Underpayment of tax can lead to penalties of 100% of the tax due and even criminal prosecution. Her Majesty's Revenue and Customs launched the Tax Health Plan earlier in the year because it believed there was a significant underpayment of tax by doctors, as some of our colleagues have recently found out to their cost.

If you have any scheme to reduce your tax burden you must get clear personal professional advice from a registered accountant or other financial adviser.

Dr John Canning is chair of the GPC's contracts and regulation sub-committee and a GP in Middlesbrough

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