GP appeal case will ‘have implications’ for PCNs

The Court of Appeal case which ruled in favour of a GP partner who was issued with a contract termination notice for refusing to cooperate with the local PCN could have implications for PCNs, clinical directors (CDs) have said.

The judge ruled this week that the CCG ‘failed to give notice of a variation’ in the GP partner’s contract and was therefore wrong to serve contract termination notices.

They also ruled that the NHS Litigation Authority, now NHS Resolution, ‘erred in law in determining that the CCG were entitled to terminate the contracts’.

It is not yet clear whether the contract termination notices from 2020 will become void, but the judges in this appeal have advised the adjudicator to decide based on the fact that ‘there had been no breach’ of contract by the GP partner.

The case involved Dr Sashi Shashikanth, a GP principal of two small GMS practices in West London, who 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 provide funding directly to his two practices to provide the enhanced services.

Dr Shashikanth challenged the CCG’s decision to terminate his contract with the NHS Litigation Authority, who upheld the decision. The case went 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. 

Dr Shashikanth’s case lost and the claim was ‘dismissed’. But Dr Shashikanth appealed this decision. This judgement allowed Dr Shashikanth’s appeal and advised that ‘the appropriate order is to quash the determination of the adjudicator’.

CDs have said the ruling will have implications for PCNs, in terms of who takes responsibility for ensuring patient care is ‘not compromised’ due to a practice not signing up to the Network DES.

Dr Bal Duper, clinical director at Oldham East PCN, said: ‘There are implications for PCNs, ICBs, practices and patients as it places responsibility on the whole system – not just PCNs – to ensure that if a practice does not sign up to the DES, or indeed removes itself, that patient care is not compromised in a punitive way.

‘All should consider a conciliatory approach to resolve. The practice, and its patients, have to have equitable access to all services within an ICB footprint.’

He added that it was ‘disappointing’ that all parties had to resort to an ‘expensive and stressful legal path’ and were not able to resolve it with discussion.

Dr Sarit Ghosh, CD at Enfield Unity PCN, added: I think taxpayer money could be utilised more productively than for the legal fees of pursuing cases such as this.’

But said it was ‘unlikely’ that NHS England would fund individual practices to provide the same services as PCNs in the future, if they want PCNs to succeed.

‘This case looks like a failure in legal process by the CCG and NHS England on top of an escalation to a breach notice and threat of contract termination which on the face of it looks disproportionate,’ he said.

‘Inherently, I am a supporter of PCNs and a proponent of working collaboratively so would emphasise the benefits of these models rather than using the proverbial stick to force change which could be more disruptive.’

Dr Saul Kauffman, CD at St John’s Wood and Maida Vale PCN, added: ‘When there are disagreements that escalate to this level within a practice or PCN then it can take time, energy and other resources which in turn means that we are not able to focus as much as we would want on improving patient care.’

Following the court decision, Dr Shashikanth told Pulse PCN: ‘For whatever reason might be, if a practice does not wish to join a PCN, the ICBs with delegated powers from NHSE have the powers to support by giving a local agreement. Such good practice exists.

‘We declined to join due to data sharing concerns based on legal advice and wishes of our patients. It is rather unfortunate that my practices were issued with termination notices where in other areas of England, the non-PCN and non-data sharing practices are given local agreements to offer PCN services to their own population – a system that works well for all stakeholders in those areas.’