Exclusive It is ‘unlikely’ NHS England will be able to issue breach notices to PCNs without GP cover at all times during enhanced access due to the DES’s ‘ambiguity’, according to GP lawyers.
Lawyers have told Pulse that relevant parties have started to ‘seek advice’ on the issue – which centres around whether or not a GP must be physically present 9am-5pm on Saturdays and 6.30pm-8pm on weekdays from October.
One specialist law firm told Pulse that it is ‘too early’ to assess the legal position because there is a lack of ‘clarity’ over what is contractually required of GPs, while another said NHS England would find it ‘difficult to uphold’ any breach of contract notices.
Pulse recently revealed that NHS England has confirmed a GP must be physically present at all times during PCN weekday evening and Saturday enhanced access appointments. It was also revealed that PCNs will need to provide appointments covering the ‘full’ periods of 9-5 on Saturdays and 6.30pm-8pm on weekdays.
But the BMA previously advised that a GP must be ‘available’ but not necessarily ‘physically’ present during enhanced access shifts, based on ambiguity in the contract document’s wording.
Associate at Weightmans Katherine Millray said: ‘We’re at a stage where it’s too early to assess what the legal position would be if NHS England was to issue breach notices.
‘In fact, given the ambiguity of the contract wording, it’s unlikely that any will be issued at all until there is absolute clarity on whether they would be enforceable.’
She added that the ‘costly and time-consuming process’ of issuing a breach notice will be ‘exacerbated without this much-needed clarity’.
Ms Millray said: ‘We expect this clarity will be sought by way of further negotiations, legal challenge or a statement from the commissioner confirming that they do not intend to serve breaches as, in reality, not every practice will have a GP on the ground all day every Saturday.
‘The likelihood of a legal challenge is unclear at this stage, but in any event, parties have started to seek advice.’
GP practices are left ‘in limbo’ over ‘unclear’ contracts that are ‘open to interpretation’ and any ‘disruption’ will ‘further damage the morale of doctors already under significant stress’, she added.
But head of corporate law at Rubric Law Sana Sadiq told Pulse that a breach notice on the grounds that a GP was not physically present would be ‘difficult to uphold’ and ‘open to challenge’.
She said: ‘Having reviewed the relevant sections of the Network Contract DES, it seems there are no express terms to suggest that a GP must be physically present throughout the Network Standard Hours.’
What does the PCN DES say about enhanced access GP cover?
The network DES said that enhanced access services should be ‘delivered by a multi-disciplinary team of healthcare professionals employed or engaged by the PCN’s core network practices, including GPs, nurses and additional roles [staff] and other persons employed or engaged by the PCN to assist the healthcare professional in the provision of health services’.
However, it added: ‘A PCN must ensure GP cover during the Network Standard Hours providing in-person face-to-face consultations, remote consultations, leadership, clinical oversight and supervision of the MDT.’
Ms Sadiq added: ‘Although physical presence is required during face-to-face consultations, there is nothing to suggest that physical presence is required for remote consultations, leadership, clinical oversight and supervision of the MDT; all of which can be provided via remote means.
‘If NHSE were to issue breach notices on grounds that GPs were found not to be physically present, it would be difficult to uphold where it can be shown that the Enhanced Access Plan has otherwise been followed, leaving them open to challenge.’
BMA GP Committee representative for Kent LMC Dr Zishan Syed told Pulse that the lack of clarity over the PCN contract is ‘crazy’.
He said: ‘You need to have proper, decent contracts that are clear and if you don’t have a clear contract, if something goes wrong, then obviously NHS England are going with the interpretation that favours them. What we need is it just to be clear what they want.
‘If we can’t do it, then people just opt out, or they will hand [in their] notice or whatever. We can’t have this uncertainty. I think it’s crazy.’
Dr Syed added that he is concerned that if ‘something goes wrong’ during enhanced access services, ‘serious questions’ are going to be asked if a GP was not on site.
‘I’m not reassured by people saying that you can be off site,’ he said.
It comes as the BMA GP Committee’s latest bulletin said that while the opt-out window for the PCN DES has now closed, its ‘lobbying of NHSE/I for greater flexibility and support continues unabated’.
It added: ‘We also plan for and ask LMCs to lobby local and regional commissioners for local flexibility to ensure safe patient care within the workforce complement practices have available to them.
‘We will develop further guidance for practices on how to work within the constraints of the PCN DES in a way that is effective for practices and safe for patients, as further details emerge.’
The bulletin reiterated that the BMA has demanded that GP practices get another chance to opt out of the PCN DES if they cannot agree an enhanced access delivery plan with commissioners.
Additional reporting by Caitlin Tilley