Legal issues
‘The process to be followed should be set out in a well-drafted partnership agreement’
Daphne Robertson is the founder and principal of DRS solicitors
There are four key legal areas that need to be considered when a partner is suffering from stress: disability discrimination; professional conduct including patient safety; partnership obligations as defined in the partnership agreement; and fulfilling one’s obligations under the core medical services contract.
Certain stress-related conditions can constitute a ‘disability’ under the Equality Act 2010. GPs are usually aware of the protection that the Equality Act gives them, and will bring or threaten disability discrimination claims where they feel that their colleagues are trying to engineer their removal. Appropriate support should be provided to any partner or employee who is suffering from stress.
If at any time GPs have concerns that a colleague’s condition affects patient safety, they are obliged to act in accordance with Good Medical Practice (note the 22 April 2013 update). This states that you must ask for advice from a colleague (such as another partner or GP at the LMC), your defence body or the GMC. If you are still concerned you must report the matter, and careful documentation will be essential in case your actions are later alleged to be discriminatory or you are accused of acting in bad faith towards your partner.
So long as there are no concerns about patient care, in the first instance the troubled partner ought to see their own GP or otherwise seek specialist professional guidance. It would be appropriate for the senior partner colleague who has responsibility for HR issues to address such matters informally (but confidentially) with the individual, keeping themselves appraised as to progress made.
Independent examination
If the stressed partner does not seek treatment or their condition continues or worsens, you should consider the rights and obligations defined in the partnership agreement. This ought to require that the partner be examined by an appropriate independent expert (rather than the partner’s GP) who should provide a report setting out a diagnosis, the condition’s effect on the partner’s ability to carry out their duties, a prognosis, and the steps that might reasonably be taken to assist the partner.
If an independent health report recommends a partner take periods of rest and then return to work in a phased manner, the other partners have an obligation under the Equality Act to make reasonable adjustments. This may well conflict with timescales set out in the partnership deed so it is important to grasp this issue early. Old partnership deeds should be updated to ensure they comply with the Equality Act.
If a medical report provides evidence that supports a retirement on ill-health grounds, the partners may discuss the possibility of voluntary retirement. For situations where this is not agreed, it is common practice to include a clause enabling the remaining partners to compulsorily retire a sick partner after a prolonged period of absence – usually between nine and 12 months. While the purpose of such clauses is to protect the practice, they should always be exercised with care to avoid allegations of discrimination – seek legal advice first
Practices with partnership agreements that do not include such clauses will be unable to retire a partner in this situation. A well-drafted partnership deed will include provisions allowing for dispute resolution. Arbitration is often preferred over the courts as it provides confidentiality and can be quite flexible, but if part of the dispute alleges discrimination this will be heard in a public employment tribunal. Disputes where there is no partnership deed will be heard in the courts.
An important consideration when a partner is unwell is the implication for the GMS/PMS/APMS contract. If you seek to terminate the relationship by dissolving the partnership, you risk simultaneously terminating your contract, so it is critical to follow procedures for retirement set out in a valid partnership agreement. In the current environment, dissolution would almost certainly lead to your contract being re-tendered and even the possible closure of the practice. You could also be sued for breach of contract.
If a partner’s condition has given rise to fitness-to-practise concerns this could lead to a suspension or erasure from the register. The full consequences of this lie outside the scope of this article but suffice it to say that this would prevent a GP from being party to a core medical services contract. It is critical that this is considered in the partnership agreement.
In conclusion, practices are advised to check that the practice agreement takes account of the consequences of burnout, as the problem is increasing in frequency.
Practical issues
‘I’d recommend partners set up a buddy system or mentoring scheme as a preventive measure’
Dr Mark Sanford-Wood is outgoing chair of Devon LMC, a GPC member and a GP in Barnstaple
It’s important to distinguish between burnout and performance issues. Poor practice endangers patient safety, should be addressed promptly and formally, and is undoubtedly covered by existing practice protocols.
By contrast, burnout is something that doesn’t necessarily affect anyone but the person who’s unwell. It doesn’t have to be addressed formally, but is more likely to be dealt with as part of the culture of a practice, rather than its policies. While burnout and performance issues may overlap at times, they must be treated as distinct issues in order for a GP to deal with them effectively. Burnout also exists on a continuum. At the lower end of the scale, stress can be tackled by a simple chat.
I’d recommend partners set up a buddy system or mentoring scheme in the practice as a preventive measure against stress. In my practice, every new GP, particularly a younger partner, is matched up with a more experienced doctor for help and advice. Having been at the practice for 20 years, I no longer have a mentor, but like other senior partners I feel well connected in my community through groups such as the young practitioners network. However, I have noticed that some GPs who have historically coped well with stress are beginning to experience burnout. This may be because they don’t feel they can scale back.
Informal support groups
At the practice, we also have informal pastoral support groups. We have 12 GPs (10 partners and two salaried doctors), from whom we have made three groups who each go to the pub once a week to discuss how we’re getting on in and out of work. Smaller practices might prefer to go out to dinner together.
These informal meetings are a good time to discuss personal issues – for instance, if a doctor is having an operation we can use these meetings to arrange cover, delegate admin or reduce their surgeries temporarily. As Professor Clare Gerada says, GPs often suffer from ‘presenteeism’ and we usually need to be encouraged to take sick leave.
Lastly, the LMC is a valuable resource for pastoral care, and your executive will be able to tell you what services are available in your area. In Devon, we have a pastoral support arm to provide quality confidential care. The LMC can also provide support in a partnership dispute.
Financial issues
‘A managed exit can normally be accomplished without too much financial pain’
Bob Senior is chair of the Association of Independent Specialist Medical Accountants and head of medical services at RSM Tenon
The ever-increasing workload is taking its toll, and a recent conversation with a despondent GP client is symptomatic. Frustrated by needing to deal with repeat prescriptions until 9pm most evenings, he called to discuss the steps needed to resign as a partner.
A managed exit of a partner who cannot cope with the workload, while a shock to the other partners, can normally be accomplished without too much financial pain. When a partner crashes, the financial damage will be more serious.
When a partner leaves by choice, if the practice owns the surgery and the partner is a property owner, an up-to-date valuation will normally be needed. The remaining partners will need to decide who is going to buy their share and arrange the necessary finance – not always as easy as it once was. The practice and retiring partner will need to decide if they want to pay for a set of accounts prepared to the date of leaving. If there are any joint loans the lender will need to be advised.
Check your insurance
When a partner is asked to leave but is unwilling, check the partnership agreement to ensure they can be removed and check with a solicitor before taking action. Often, when a partner is asked to go but resists, a period of sickness ensues with locum costs. Check the terms of any practice locum insurance policy.
On some occasions, a partner wants to go part time. If the practice owns the surgery and the partner is a property owner, the partner would typically reduce ownership in line with the new sessions. As when a partner leaves by choice, they must be bought out. The practice will also need to replace lost sessions. Can they be picked up by other partners or must there be an additional GP? Recruitment costs are always unwelcome and the process takes time.
If a partner takes long-term sick leave, check what the partnership agreement says about sickness absence. Establish how long the practice must bear the cost before the partner’s locum insurance kicks in. How will the practice react if the absent partner’s locum insurance proves inadequate? The remaining partners could say this is a problem for the absent partner, or treat the excess as a practice expense. But even with a locum, there will be extra work to be covered by the remaining partners.
