Increased joint working between practices raises important legal issues and risks around liability, premises and more. Lawyers Edwina Farrell and Ian Pace explain how to navigate these key areas
As the Government works to unlock better, more efficient healthcare services, practices are increasingly being encouraged to work in new, or closer, collaboration.
Whether in PCNs, federations, or simply through more informal practice-to-practice arrangements, GP practices need to be prepared to navigate the legal considerations that such collaboration and partnerships may bring – from limiting individual liability, to pensions and premises issues.
Done well, this will help build partnerships that are resilient, and that deliver the best outcomes for both the parties involved and the patients they serve.
In the first part of this two-part series, we answered common questions about the basic principles for effective collaboration within GPs’ own practices.
In this second article, we look at some of the key issues to consider when working with other practices or organisations, both within a PCN or via other arrangements.
These include:
Should we incorporate or not?
This is a common query received from practices within a PCN. To answer this, practices need to consider what benefits – and what responsibilities – forming a limited company brings, and whether it meets their needs. The first question should be ‘why do we want to incorporate?’
A leading reason for incorporating is to help allocate liabilities within a network. Simply working together does not automatically turn a group of people into a legal entity with a corporate structure around it. This is the case for GP partners working together in a partnership, and when multiple GP practices and / or sole practitioners come together to work in a PCN under a typical network agreement. The original PCN agreement was a contractual joint venture and not about a corporate structure.
Because PCNs are not automatically legal entitles, they can’t employ staff or own property in the ‘name’ of the PCN. So, for example, we see PCN premises being held by the partner or partners of a particular practice but are used by the PCN.
Because of this, there is a risk that individuals within the PCN network can be personally liable for the actions of others and the cost of the premises if they are not funded as primary care clinical space. There are other potential liabilities too, for example, in relation to employment problems.
Incorporating is a way of helping to manage this risk. It allows network practices to create a limited company of which they all form a part, and to which they can assign certain roles and responsibilities – from running shared back-office functions, to hiring shared clinical or non-clinical staff or where appropriate, owning property. Practices can also sub-contact their direct enhanced service (DES) contract to the corporate body, giving it responsibility for the clinical services delivered.
It’s essential that a network’s practices agree why they want to incorporate, and, in the case of liabilities and risk, what liabilities and risks they want to manage. This will not only help generate buy-in across the group, but also help determine the most suitable legal and day-to-day governing structure for the PCN to use.
With many considerations to keep in mind, it’s always advised to seek professional advice if a network is thinking about incorporating.
What are some ‘hidden’ risks for PCN companies? A look at pensions
Once practices decide to incorporate, there are several specific administrative and legal steps to ensure appropriate compliance with Additional Role Reimbursement Scheme (ARRS) DES specifications.
Often, the key questions raised are how and whether PCN companies can offer the NHS Pension Scheme to those they employ, and if its optional or whether there is a mandatory duty to do so (for example, due to the requirements of the Fair Deal policy, which allows newly transferring staff from the public sector to independent contractors delivering public services continued access to a public service pension scheme).
As mentioned above, PCN companies can employ staff on behalf of the practices within the PCN network. They can also provide some staff with access to the NHS Pension Scheme, under certain conditions.
Two ways that this can be done are through an ‘open PCN determination’ or as an ‘independent provider employing authority’ (IPEA).
NHS Business Services Authority guidance says that an open determination is available for employers of Additional Role Reimbursement Scheme (ARRS) and practice staff that do not have any other access to the NHS pension.
This option will give pension access to staff who are working wholly or mainly on a sub-contract held by the PCN company from the PCN DES (which must be in place for a PCN company to use this pathway).
If a PCN company wants to provide pension access to staff engaged in other types of NHS contract, then the IPEA route may be a better option.
The PCN company can apply for ‘independent provider’ status, provided that it holds a ‘qualifying’ NHS contact. A PCN DES sub-contract that complies with the NHS ‘provision of services’ template, qualifies.
Under this, the PCN company can offer the NHS pension scheme to any team member who spends more than 50% of their time delivering the contract in question. An independent provider can add further ‘qualifying contracts’ at any time, meaning that the range of staff that they can offer pension access to is only limited by the range of eligible NHS contracts they have.
PCN companies can access the IPEA application form on the NHS Business Services Authority’s website. For open determination applications, PCN companies need to request a form from the NHS Pension Scheme access team directly.
PCN companies should seek expert advice before proceeding with an application to help understand which staff may be eligible and what pathway might be most suitable for their needs, as well as for help navigating the specific application processes.
Practicies working together outside of a PCN
PCNs aren’t the only way that practices work together. GP practices have always collaborated organically and on a case-by-case basis, for example, to share resources or elements of property facilities – something that has been directly encouraged by health commissioners.
Although these types of arrangements may be more informal, it’s still essential for both parties to set terms of reference for how they are going to work together.
This not only helps to make sure that organisations are on the same page about what they’re doing and trying to achieve, but also helps to manage liability, and reduce the risk of disputes.
Terms of reference can vary depending on the specific organisations involved and the nature of the collaboration, but points to think about include:
- The time period over which the collaboration will occur
- What the collaboration is designed to achieve, as well as setting any key performance indicators (KPIs) or ways of measuring ‘outcome’
- The specific organisations that will be involved / will benefit from the partnership
- What each party involved will contribute or deliver, along with specifics of funding
- What responsibilities each party will hold, as well as who within those organisations will be accountable for these responsibilities
- The specific ways of working, including any regular review meetings and formal channels / points of communication
- How disputes between the parties will be managed
- An agreed definition of any key terms.
Practices should always seek legal advice before agreeing any contracts or collaboration documentation.
Partnerships will also need to be designed with due refence to any and all of the participating parties’ existing legal duties, including any standing contracts that they might hold.
To conclude, due planning and consideration is a must for any party working with another to ensure that they are providing the best possible outcomes for their staff, their patients and reducing risks for their organisation.
Edwina Farrell is head of the primary care sector at national law firm Weightmans. She advises GP practices, partners, LMCs and those who work with them. She can be contacted on [email protected]
Ian Pace is an employment lawyer specialising in advising clients in the primary care sector.
