A GP partner issued with contract termination notices for refusing to cooperate with the local PCN is taking his case to the Court of Appeal later this month.
The BMA has joined legal proceedings as an ‘interested party’ with its own legal team, and Pulse understands the union will make arguments about the wider ability of GPs to legally challenge decisions by NHS Resolution.
At the appeal hearing, a previous High Court decision regarding NHS England’s decision to terminate the contract will be re-examined, including the lawfulness of the NHS adjudicator’s decision to uphold the termination.
Dr Sashi Shashikanth, a GP principal of two small GMS practices in West London, was issued with contract termination notices by Hillingdon CCG in 2020 over his failure to comply with a GMS contract clause which obliged practices to cooperate with PCNs ‘whether or not’ they are signed up the network DES.
This clause meant that non-PCN practices have a duty to inform patients of changes to PCN services, be ‘party to appropriate data sharing’, and to share non-clinical data with PCNs.
The GP partner had refused to data sharing and had hoped the CCG would separately contract his two practices to provide the enhanced services.
Dr Shashikanth challenged the CCG’s decision to terminate his contract with the NHS Litigation Authority (NHSLA) – now NHS Resolution – who upheld the decision.
Following this, the GP partner took the case to a ‘judicial review’ at the High Court in 2022, where a judge ruled that NHSLA, the adjudicator, had acted on an ‘error of law’, and so upholding the termination was unlawful.
However, Dr Shashikanth’s case ultimately lost as the judge decided that his claim was not ‘amenable to judicial review’, which means the adjudicator’s decision could not be challenged via this route and the claim was ‘dismissed’.
The Court of Appeal will deal with this case on 19 and 20 November, with appeals from both Dr Shashikanth and NHS England, Pulse understands.
Dr Shashikanth has appealed the High Court judge’s ruling on his ability, as a non-NHS contract holder, to challenge the NHS adjudicator’s decision via a judicial review, while NHS England has appealed the judge’s decision that upholding the termination was unlawful.
Both of these points will be decided again by the Court of Appeal, bringing an end to the years-long dispute over the GP partner’s contracts.
If Dr Shashikanth, who currently still runs the practices, loses the case and the contract terminations are upheld, it is unclear whether NHS England would enforce the contract termination.
Dr Shashikanth told Pulse that instead of pursuing termination – as his CCG did – he is aware of some ICBs which have given local funding to non-PCN practices to offer enhanced services to their own population directly.
He said: ‘We are fast growing teaching and training practices with ‘Good’ CQC ratings. Our patients have excellent access and are very happy with our service provision.’
The BMA will be involved in the Court of Appeals case as an ‘intervenor’ as the union believes it can contribute to the court’s understanding of the issues.
This means the BMA does not have a direct stake in the legal proceedings, but it will make arguments about the ability of GPs to bring judicial reviews against NHS Resolution, as the outcome of the case has wider implications beyond only Dr Shashikanth.
The GPDF, which is providing financial support to Dr Shashikanth for legal costs, told Pulse that the case is ‘important’ but was unable to comment in more detail.
A spokesperson said: ‘The GPDF is an ally to Local Medical Committees (LMCs) and the GPs they represent.
‘We provide funding for LMCs to protect and strengthen general practice, including legal support when a case could have significant implications for general practice, particularly at a national level.’
Londonwide LMCs has also expressed concern about the implications of the case, which they said informs whether practices should ‘enter a contract as an NHS body or a non-NHS one’.
In guidance published last year, the LMCs described Dr Shashikanth’s High Court ruling as a ‘landmark case on the ability to use judicial review – a public law process – to challenge contractual decisions made by public bodies’.
The guidance said: ‘Londonwide LMCs have previously advised practices to opt for non-NHS body status as this allows practices to pursue remedy via the civil court.
‘In light of recent changes in case law, the decision has become more nuanced in that practices who have elected to be a non-NHS body will not be able to pursue a judicial review in the event that they are unsuccessful in appealing a contract termination via NHS Resolution (NHSR).’
NHS Resolution declined to comment on the case, and Pulse has approached NHS England and the BMA.
Obey