Exclusive GPs who take any industrial action over pensions that affect the services they provide could face breach of contract claims, a senior lawyer and the body representing managers across the NHS have warned.
The BMA sent a survey to its 130,000 members last week asking for their verdict on the Government’s final offer on pensions, which will see GPs face ramped up contributions and eventually retiring at 68.
The poll, which could lead to a formal ballot on industrial action, asks GPs opposed to the deal to choose between ‘full withdrawal of labour’, limited industrial action providing ‘emergency cover only’, alternative protests that would stop short of industrial action or no action at all.
Andrew Lockhart-Mirams, senior partner at Lockharts Solicitors, told Pulse GPs’ independent contractor status meant strike action could trigger breach of contract claims, and that GPs would be responsible for arranging, and paying for, emergency cover.
Mr Lockhart-Mirams said: ‘GPs are in an unusual situation because they are self-employed – the usual rules, we think, don’t apply. If, because of industrial action, there is a lack of performance and there is nothing provided, the PCT would potentially have a claim for damages because the performer is not performing.’
‘This is more serious than just saying “we don’t like the pensions deal, we’re going off for the day”. GPs have an obligation if they are not there to see that cover is provided.’
Mr Lockhart-Mirams also warned GPs could face claims from patients: ‘If I turn up with a suspected meningitis and my GP is not there because he is on strike I may very well, because of a delay in diagnosis, have a clinical negligence claim.’
The NHS Confederation, which represents NHS managers across the UK, also warned practices they were ‘contractually bound to provide a core service from 8am to 6.30pm’.
‘It would be up to PCTs to determine whether GPs are delivering their contractual duty or not,’ a spokesperson said.
The BMA poll – which is not an official ballot on industrial action – closes on 16 January, with BMA Council due to discuss a possible ballot if the deal is rejected two days later.
In November, a Pulse snapshot poll found 70% of GPs were poised to reject the pensions offer, while 19% would accept it and 11% were undecided.
Dr David Bailey, deputy chair of the BMA Pensions Committee and a GP in Cardiff, said: ‘Whatever your opinion is about pensions, it is absolutely vital that you register it. That gives BMA Council a clear idea on what its options are.’
Story updated 16:48