The BMA has changed its position on whether GP practices are allowed to redirect patients to NHS 111 when they reach capacity, our sister title Pulse has learnt.
In communications to LMC leaders, the BMA said it has ‘modified’ its position on whether practices can refer patients to NHS 111 during core hours.
BMA safe working guidance previously stated that once practices ‘have reached capacity’, they ‘have the option of signposting to alternative services’, including NHS 111.
But the most recent advice shared with LMCs (see box) said that a referral to NHS 111 during core hours will only be ‘lawful’ when ‘it is the best option for the patient’.
It added: ‘A practice may not lawfully redirect all patients contacting the practice during core hours to NHS 111 using, for example, an automated email, a recorded voice message or a sign on the door of the practice. That would not comply with contractual requirements.’
LMC leaders raised concerns that the change seems to be undermining the safe working guidance that most practices have been following since GP collective action.
And they said that this could present an opportunity for commissioners to ‘harass and bully’ practices.
The advice change came after questions from LMCs around the new online access requirements which came into force on 1 October.
The union said that ‘further legal consideration’ was given to the question of whether practices can refer to NHS 111 during core hours before coming up with the modified advice.
It added: ‘The legal framework is not clear, there is no case law on the issue, and a question of whether or not a practice is in breach will depend on the specific circumstances of the case. For this reason, we cannot be certain how the courts would interpret the relevant legal provisions in the case of dispute.’
NHS England has said that its FAQ document on the online access changes explicitly says 111 is not an option during core hours.
It said: ‘Practices should make efforts to keep patients informed around next steps when a consultation is submitted. In line with the contract, patients should know on the day how their presenting issue will be handled (if contact is made during core hours, or the following day if not).
‘That does not mean the practice has to see or treat the patient on the same or next day, rather the patient should know how their presenting issue will be managed by the practice, which could involve arranging an appointment for the patient on another day, or signposting to another appropriate service, such as Pharmacy First.
‘111 would not constitute an appropriate alternative service during core hours.’
Yesterday, in relation to a meeting between ICBs and primary care minister Stephen Kinnock, the Department of Health and Social Care (DHSC) said that it is standard practice for GPs to direct patients to other services ‘when that would better serve the urgency of their need’.
the DHSC also said it will support practices that are struggling with the new online access requirements but that if they refuse to meet their contractual duties, ICBs can take formal action, including issuing warning notices, applying sanctions or in serious cases, ending contracts.
Mr Kinnock said: ‘It’s fantastic that most practices have successfully rolled out their online consultation service – now it’s time to support the remaining few to get this up and running everywhere.’
Latest BMA advice
A referral to NHS 111 during core hours will only be lawful, in our view, when it is the best option for the patient. It will inevitably be a matter of judgment for the practice, but by way of illustration we can provide the following examples when we think referral to NHS 111 is likely to be compliant with the terms of the GMS/PMS contract:
1.If the matter is non-urgent, the practice does not have the capacity to provide the patient with a consultation that day, and the patient would prefer a referral to 111 rather than a delayed appointment.
It is worth noting here that for the referral to be lawful an assessment must have been made about both the urgency of the appointment and the patient’s preferences (which complies with requirement reflected in paragraph 4 of Schedule 3 of the GMS regulations referred to in my previous email).
2.If, following a phone triage or review of an online consultation form, the practice believes it would be in the patient’s clinical interests to phone 111 – i.e. same day attention indicated, but the practice has no further capacity to offer a same-day appointment. (although, in this example, where NHS 111 can reasonably be expected to refer the patient back to their GP, or alternatively tell them to call 999 or go to A&E, the question might arise as to why the GP didn’t tell them to do that in the first place, in which case it would be harder to argue the referral was compliant.)
It is worth noting again, that in this example, the practice will have considered the nature of the request from the patient and their individual needs before providing their response, in accordance with the contract.
3.If the patient contacts the practice by phone (as opposed to online) and the practice has no remaining capacity to triage by phone at that time, a recorded message along the lines, ‘Sorry, the practice is busy at the moment and you are number XX in the queue. You have the option of trying again later (or triggering a ‘call back’), or if you believe your condition might be urgent, please call 111 or phone 999/go to A&E’.
It seems to us that this sort of response is also arguably compliant with the contract by providing information about how the practice will deal with their request and by directing them to other services pending a full response from the practice which has been delayed.
Source: BMA
A version of this article was first published by our sister title Pulse
