The GMS/PMS contract is very complex and practices have significant obligations to fulfil under the contract. On rare occasions, practices are unable to, or fail to meet their contractual obligations. Both the GMS and PMS contract regulations outline the actions that the commissioners can take in these situations, specifically the commissioners will be NHS England and Improvement (NHSEI) or local integrated care boards (ICBs). Please refer to the links in the final section for the full regulations.
If a practice (GP contractor) is found to be in breach, commissioners can issue remedial/breach notices, put in place contract sanctions, or in rare cases, terminate the GMS contract.
When there is a breach of the contract which does not fulfil the criteria to result in immediate termination of the contract (see below), NHSEI/ICBs will normally issue a remedial or breach notice. If a practice receives a remedial/breach notice, or believes commissioners are considering one, they should contact our GP Support team immediately, rather than trying to resolve the matter on their own.
In situations where there has been a breach of contract, but the breach is capable of remedy (e.g., the practice’s recruitment policy was not in line with current regulations and guidance, the practice did not have an effective clinical governance policy or infection control protocol in place etc), a remedial notice will be issued. In doing this the commissioners must provide details of the breach, and steps that will need to be taken to remedy the breach.
Unless the breach places patients at risk or there is a risk of material financial loss to commissioners, a period of not less than 28 days from the date of the notice will be allowed to remedy the breach. In some cases, depending on the remedial actions that need to be taken, and if appropriate, the local medical committee (LMC) may be able to help the practice negotiate a longer timeframe in which to remedy the breach.
If the contractor fails to remedy the breach within the given timeframe, commissioners will usually issue a further remedial notice (or in some cases more than one). If repeated remedial notices remain unmet because the practice has not made the required improvements over a period of time, commissioners may serve notice of termination of the contract (see below).
In situations where the breach is not capable of remedy, i.e., it relates to an event that happened at a specific point in time and cannot be retrospectively remedied (e.g., there was no clinician available in the practice on a particular day), commissioners will most likely issue a breach notice.
Breach notices are much rarer than remedial notices as most contract breaches are capable of remedy. The breach notice states what the contract breach was, instructs the contractor not to repeat the breach and asks them to describe the steps they will take to avoid repeating the breach.
If following this notice the breach is repeated, or the contractor otherwise breaches the contract and receives further remedial or breach notices, commissioners may serve notice of termination of the contract. In order for commissioners to terminate the contract, they must satisfy themselves that the evidence demonstrates that the cumulative effect of the breaches would prejudice the efficiency of the service to be provided under the contract if it were to continue.
Where commissioners are entitled to terminate the contract, they may impose contract sanctions if they are reasonably satisfied that the contract sanction to be imposed is appropriate and proportionate to the circumstances giving rise to the commissioners’ entitlement to terminate the contract. If commissioners decide that contract sanctions are indicated, they have three options;
- termination of specified reciprocal obligations under the contract,
- suspension of specified reciprocal obligations under the contract for a period of up to six months, or
- withholding or deducting monies otherwise payable under the contract.
Contract sanctions cannot be imposed if they affect the delivery of, or payment for essential services. Unless there is risk to patient safety or financial risk to commissioners, giving at least 28 days’ notice, commissioners must provide in writing information to the contractor including, what sanctions are being applied, the date from which they will be applied, an explanation of the effect of the sanction and advise them if there will be any additional deductions to cover the reasonable costs of administering the sanctions.
Immediate termination of a contract is a rare event and is only indicated for specific reasons which are not unreasonable, these can be found in full in GMS regulations 2015, schedule 3, part 8, paragraphs 65-69, 70(4), 70(6) and 71 and PMS regulations 2015, schedule 2, part 8, paragraphs 52-65 but can be summarised as follows;
- a breach of regulation 5 (at least one partner must be on the GP register and medical performers list),
- untrue information sent by the contractor when applying for the contract,
- when the contractor is no longer able to hold a contract (disqualification, removal from the medical performers list, criminal offence, bankruptcy, removed from the office of charity trustee etc.), the full list can be found within schedule 3 of the GMS regulations part 8, paragraph 67(3).
- Unlawful subcontracting.
- The safety of the contractor’s patients would be at serious risk if the contract is not terminated.
- The contractor’s financial situation is such that the commissioner would be at risk of material financial loss.
- Change in the partnership that threatens delivery of the contract or causes risk of financial loss to the commissioner.
The most common reasons seen by the Londonwide LMCs GP Support team for immediate termination are in response to repeated contract breaches, which have resulted in remedial or breach notices, or on the grounds of patient safety and normally triggered by enforcement action by CQC (cancellation of registration).
Unless there is risk to patient safety or financial risk to the commissioners, the GP contractor will be given at least 28 days’ notice of a contract termination.
The contractor can appeal a termination notice by following NHS dispute resolution procedures. The appeal process is managed by NHS Resolution (NHSR).
Other potential actions commissioners can take
The above actions are what commissioners can take under the GMS/PMS contract. In addition to these and depending on the individual circumstances, they could also refer the case to CQC, NHSEI practitioner performance team, GMC or any other organisation involved in the regulation of GPs and general practice.
Practices should make all reasonable endeavours to meet their contractual obligations. They should also be familiar with their contract and have a clear understanding of what is allowed under the contract regulations, or if they are in doubt seek advice from the LMC.
Any action that the commissioners take under the contract must be proportionate, reasonable and evidence based. As such it is important that practices take appropriate action as soon as they become aware of a breach, as this can significantly positively impact on the action that commissioners subsequently implement.
We would advise that you contact the GP Support team at Londonwide LMCs (GPSupport@lmc.org.uk) as soon as you become aware of a potential contract breach. The team will be able to support you in implementing the required action(s) at the initial stage of the process, which can prevent further escalation of the contractual actions, and will continue to support you in your ongoing engagement/meetings and correspondence with NHSEI/ICBs as required.
- GMS contract regulations (schedule 3, part 8, paragraphs 64-75), relating to contract breaches.
- PMS contract regulations (schedule 2 part 8, paragraphs 52-65), relating to contract breaches.
- NHSE Primary Care Policy and Guidance Manual (pages 340-368) relating to how commissioners implement the regulations.