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Published 17 August 2015
In the old world, prior to 1 April 2013, when primary care trusts (PCTs) commissioned primary care services, there were a range of ‘bolt on’ services that could be added in to GP provider core primary care contracts (general medical services, personal medical services and alternative provider medical services).
These included what were known as local enhanced services (LES) and were locally designed services by local commissioners in response to needs and priorities of that specific area, sometimes adopting national service specifications. Examples include patient choice schemes, domicilliary falls, minor injuries service, etc. From a contractual perspective, an LES consisted of a specification with brief payment terms that would sit at the end of a core primary care contract. They would often include payment provisions linked to the number of patients that received the service. Ultimately, the same provisions set out in the core primary care contracts applied to the LES.
Following the split of commissioning on 1 April 2013, NHS England took on the responsibility to commission primary medical care services. However, NHS England made it clear that they were unlikely to commission local enhanced services, as clinical commissioning groups (CCGs) should decide how best to use local resources to invest in community-based services that go beyond the scope of the GP contract. Some local enhanced services became the responsibility of local authorities to commission, where they relate to public health.
For GP providers, there are now a number of opportunities arising to provide former LES, now often referred to as out-of-hospital services and more naturally considered to be community services, given that they are provided in the community. Examples of the types of services this would encompass are phlebotomy, care planning, diabetes services, spirometry testing, homeless service, anti-coagulation, etc. While the CCG is under an obligation to consider its procurement law duties in commissioning healthcare services, there is certainly a reasonable argument that for some of these services, GP providers are the most capable organisations in the market to do so. In such circumstances, CCGs may consider that there is no need to formally put such services out to the market to a wider basket of providers.
While LES used to be contracted with a brief specification at the back of the core primary care contract, GP providers must now sign up to the NHS Standard Contract should they wish to provide LES services. The NHS Standard Contract is designed for commissioning a range of services including acute, mental health, urgent care, accident and emergency services to name a few. It is therefore much more of a robust contract than GP providers will be used to, given their core primary care contracts.
While there are some parts of the NHS Standard Contract for local agreement (as set out in the articulars), the service conditions and general conditions, which make up the bulk of the legal obligations, cannot be modified. Within these obligations, GP providers will be required to set out details of their information governance lead (Caldicott guardian), senior information risk owner, accountable emergency officer, safeguarding lead, mental capacity and deprivation of liberty lead as well as their ‘prevent’ lead – part of the UK’s national counter-terrorism strategy that aims to reduce the risks faced by international terrorism. There are also a range of reporting obligations and plans that must be put in place by GP providers to meet the contractual requirements of the NHS Standard Contract.
GP providers should also consider their obligations in relation to staff (as set out in general condition 9). This includes a requirement to provide certain staff information to the commissioner on request, where for example the commissioner is thinking of tendering or retendering the service. The GP provider must also ensure that the information is accurate as it is, by virtue of the terms of the NHS Standard Contract, indemnifing the commissioner and any new provider of the services against certain losses that may be incurred due to any inaccuracy or omission from the information provided.
Under core primary care contracts, GP providers may elect to be considered a health service body. However, this option is not available under the NHS Standard Contract for community services. The implications of this are that the NHS Standard Contract will not be considered an NHS contract that would go through the NHS dispute resolution procedure. Instead, the full dispute resolution procedure of escalated negotiation, mediation and expert determination apply as set out in the NHS Standard Contract. This is a more complicated process than what GP providers will be accustomed to in their core primary care contracts.The key point from all of this is that it is important that GP providers are aware of the obligations that they are entering into before signing the NHS Standard Contract, and seek to agree frequency or reporting and other contract management responsibilities upfront with commissioners, to ensure that such responsibilities are not overly onerous, given that the contract administration itself requires resource and incurs cost.
We are seeing many GP providers creating collaborative arrangements (such as the formation of GP federations), often along locality lines, in order that a collective, population based approach to delivering such community services can be put in place. This also allows for many GP providers to share the responsibility of many of the NHS Standard Contract requirements, to cut down on the overall adminstrative burden of the contract. In some cases, GP providers have sought to adopt a lead provider model, where the GP federation, as provider, holds the NHS Standard Contract with the CCG. Sub-contracts could then be put in place betweeen the GP federation and the various GP providers involved in delivering the services.
However, these models need to be considered carefully by GP providers, given that there are a number of pensions issues arising by adopting that model. An example of this is that sub-contractor income is not currently superannuable under the NHS Pension Scheme in respect of the GP providers. This is all new territory for GP providers, as such issues did not arise when local enhanced services were contracted for through core primary care contracts.
GP providers considering entering into the NHS Standard Contract should consider the relevant guidance in the first instance. NHS England’s Standard Contracts team has drafted Technical Guidance that explains many of the provisions, and clearly sets out what provisions are for local agreement, and what provisions cannot be modified. While this is aimed at commissioners using the contract, it is a useful resource for GP providers. The NHS Standard Contract is updated each year, and the 2015/16 version has been published.
Where collaborative arrangements for the provision of services (such as GP federations) have been created, the collaboration of GP providers may wish to consider having dedicated contract management resources, to allow for clinicians to focus on treating patients. When GP providers are bidding for services, this is an area of cost that should be considered, and where necessary, factored into the bid price.
Key to any successful contracting relationship is trust. Where there have been any conversations regarding expectations around contract management, for example, it is important to document them in the appropriate place in the NHS Standard Contract. The NHS Standard Contract makes it clear that where local agreements, policies and procedures have been included at schedule 2G or documents included in schedule 5A (Documents Relied On), and there is any inconsistency with the provisions of the rest of the contract, the provisions of the rest of the contract will prevail.
It is important for GP providers to enter into such a contractual relationship fully appraised of its responsibilities, in order that the relationship runs smoothly. GP providers should consider that commissioners (and commissioning support units) will be well versed in the NHS Standard Contract, given that the same terms are used for a variety of health care services. The contract is a key asset for any GP provider, and it therefore requires careful attention.
This article was published in Management in Practice on 31 July, 2015. To view the full article on their website, please click here.
Alternatively, to discuss this in more detail, please contact Hamza Drabu on +44 (0) 20 7894 6411 or email email@example.com.
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