GP practices run the risk of being served with breach notices if they follow BMA advice to informally close their lists to new patients, Pulse has learned.
In surprise new guidance, issued to area teams and CCGs earlier this month, NHS England said it does ‘not sanction the term “open but full”’ with regards to GP patient lists, potentially putting scores of practices in danger.
Contradicting BMA guidance issued last year, NHS England said that practices must request approval before even temporarily closing their list and that ‘protecting the quality of patient services’ was not a valid reason to suspend patient registrations.
A recent Pulse GP survey showed that more than one in 10 GPs (12%) had closed their list to new patients at some point over the past year, including both formal and informal temporary list closures.
In the new policy, NHS England said it had ‘seen a significant rise in the number of practices suspending registration on a temporary basis causing a significant problem for patients, neighbouring practices and commissioners in some areas’.
It added: ‘Where a practice is failing to engage with the commissioner, and unilaterally seeking to determine its own restrictions on patient access, without consideration of the impact on patient access generally or the implications for neighbouring practices, then contractual action may need to be considered.’
NHS England appeared to soften its stance on temporary list closures last year, following a furore involving former Pulse columnist Dr Hadrian Moss, who was threatened with a breach of contract notice after following BMA advice and informally closing his list.
Following this, the BMA released specific advice that says ‘all practices have the contractual right to decline to register any new patients without having to go through the formal processes and without needing to obtain area team permission’.
It says this stems from Schedule 6, Part 2, paragraph 17 of the GMS contract, which says that a practice can decide not to register new patients, provided it has ‘reasonable and non-discriminatory grounds for doing so’ (such as protecting the quality of patient services).
But NHS England’s new guidance says they ‘do not consider [this section] to be appropriate in these circumstances’.
It adds: ‘Because of the potential impact of “temporary suspension” NHS England encourages practices to open a dialogue with their commissioner as early as possible when considering temporary suspension.’
GPC deputy chair Dr Richard Vautrey told Pulse that there ‘are a number of issues [with NHS England’s new policy], but they include whether or not the practice has to seek permission from the commissioner to take this action and once done how long they can remain closed to new registrations’.
He said: ‘We’ve been clear with NHS England that the guidance which we produced… is legally robust and we would recommend that practices should follow this if they need to take this action.
‘A practice’s primary duty is to deliver safe care and that is why some practices feel that they are left with no alternative but to close their list to further registrations in order to maintain safe care provision to their existing patients.’
Newcastle and North Tyneside LMC said in a bulletin to practices: ‘Some of the information in this guidance contradicts the BMA’s guidance and the LMC would like to assure practices that we believe the BMA guidance is within the regulations.’
NHS England figures have showed that more than double the number of GP practices were forced to formally (approved by NHS England) close their list to new patients in 2015/16 as the year before, up from 77 to 175.
What is the new advice?
The new NHS England guidance says that ‘the GMS and PMS contracts do not allow for a “temporary” or “informal” list closure’, because there is a distinction between ‘a patient refusal on a case by case basis, based on the patient circumstances, from a refusal to allow a patient to join the list because of the circumstances surrounding the provider’.
The guidance adds: ‘These guidelines have been drafted in recognition of the immediate pressures facing some practices; they do not however sanction the term “open but full”.
‘Where a practice is failing to engage with the commissioner, and unilaterally seeking to determine its own restrictions on patient access, without consideration of the impact on patient access generally or the implications for neighbouring practices, then contractual action may need to be considered.’
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