Ensure that your constituents understand all possible outcomes of their actions
Pledge cards were considered by the BMA as a way of limiting the encroachment of the private sector into healthcare provision by allowingpatients to insist that they are not referred to a non NHS provider and to encourage CCGs not to commission such services.
It has been suggested that this might contravene competition law. The practice should be advised that at present, the BMA (and the LMC) is unable to recommend or endorse such cards and that there is a risk in taking what amounts to a political stance against government policy without the backing of a trades union, a professional body or a substantial number of the profession.
A risk could be from a private provider challenging this as anti-competitive behaviour (which would be through the courts and at the practice’s own expense) or from NHS England and Monitor, who have a duty to implement the legislation.
Should the practice feel sufficiently strongly about this action and wish to continue issuing such cards, the partners would be wise to take authoritative legal advice (which the LMC could facilitate) on the potential consequences.
It may seem a pity to discourage a stand on principle in such a way, but LMCs have a duty to ensure that their constituents understand all possible outcomes of their actions.
Should the practice decide to continue issuing pledge cards and action is taken against them, the LMC would, of course, advise and support them as it would any constituent in difficulty.
Dr Tony Grewal is a sessional GP and medical director of Londonwide LMCs
Practices should have a protocol for facilitating access to services provided by non-NHS bodies
There is no requirement for any practice to externally check literature it is distributing to patients. It seems incautious if they have embarked on this project without cross checking with a ‘reasonable body of professional opinion’ such as their Local Medical Committee. The issues the practice would have been advised to ensure they considered GMC guidance Good Medical Practice’s guiadnace on fair treatment, respecting patients’ lifestyle choices, conscientious objection to procedures, personal belief, mutual assessment of treatment and the effect of personal views on the doctor-patient relationship (sections 15, 48, 52, 54, 57 and 59).
Issues may arise where the patient who is a proponent of a ‘market philosophy’ made an allegation that the practice had declined to arrange treatment by a non NHS provider where it would be clinically appropriate. Breach of section 54 (‘expressing a political view that occasioned the patient distress’) may be a potential risk to registration.
I would advise all practices to have a protocol that indicates how they facilitate access to services provided by non-NHS bodies - when appropriate. Provided the practice is skilled in ensuring that the cards are distributed to competent patients of the same view, they would probably rate the risk as manageable.
The GMC guidance leaflet Personal Beliefs and Medical Practice (March 2013) is a useful resource for this issue.
Dr Andrew Mimnagh is a GP in Liverpool and former chair of Sefton LMC
You have a duty to act in your patients’ best interests
As an independent contractor, the GP practice can make its own decisions – and is also responsible for the outcome of those decisions. Accordingly, an LMC representative can do no more than offer friendly advice.
The pledge card the practice appears to have adopted is not quite in the form originally envisaged by the BMA, in which practices invited patients to agree not to interact with the private sector.
There is a subtle distinction here in that the pledge cards are being offered to patients on the basis that it is the patient’s decision not to be referred to the private sector. This is one of the issues on which there is presently further debate around whether this might take the pledge card outside competition law requirements.
However, until resolved it would seem unwise to distribute pledge cards. Additionally, doctors have a duty to act in their patients’ best interests, which may not be served by the use of pledge cards at all. There might be an interesting dilemma if the NHS option provides excellent care but a private provider can provide equal care more cheaply. Whilst one patient’s best interest may not be harmed through use of the NHS, might it be argued that it is in the best interests of patients (plural) to commission private sector care?
These are unanswered questions, so the advice to the neighbouring practice must be that it would not be in their best interests to promote the use of pledge cards for the time being.
Tania Francis is a partner specialising in healthcare litigation at Hempsons