With the white paper urging that GPs resume providing urgent out of hours services, contracts will have to change, say Lucy Johnston and Julie Jordan

Shortly after the election health secretary Andrew Lansley declared that he would “tear up” the primary care contract that ended local GP responsibility for out of hours care and force family doctors to take back responsibility for providing urgent care to their patients outside their normal weekday surgery hours.

It could cost the NHS huge sums to get out of its existing contracts

The coalition’s Programme for Government reflected this by promising to “develop a 24/7 urgent care service in every area of England, including GP out of hours services, and ensure every patient can access a local GP”. 

This has been included in the white paper where in the context of increased choice and control for patients the Department of Health proposes to incorporate GP services within the 24/7 urgent care service, which will be accessed via a single number.

These changes are partly in response to the controversy caused by cases such as David Gray, the Cambridgeshire patient who was unlawfully killed by a locum GP from Germany working his first out of hours shift. The inquest into his death led to a national debate on how out of hours GP services ought to be provided. 

Since the 2004 shake-up of GP contracts and the introduction of new arrangements that allowed GPs to “opt out” of providing out of hours care to their patients, it has been the responsibility of primary care trusts to contract for the provision of urgently needed care during the evenings, weekends and public holidays. This was intended to allow local health commissioners the flexibility to restructure services to maximise patient choice, improve access and respond to the needs of their communities. 

To achieve this, PCTs across the country entered into contracts with a variety of different providers from consortia or other groupings of GPs, including partnerships, other statutory NHS bodies and private limited companies.

Varied arrangements

Those contracts will vary substantially depending on who the contracting parties are, when the contract was entered into and whether they have been updated with changes to the contract directions and the primary medical services regulations.

Bearing that in mind, what might be the basic mechanics of reverting to GP provision? There is a lack of information and clarity about what the proposals might look like, but broadly there are two issues to address.

First, the existing contracts with providers would need to end. These contracts were often for a fixed term and were only terminable before the expiry of that term either by agreement between the PCT and the contractor or by either party in accordance with certain strict requirements. If a PCT wants to terminate an alternative provider medical services out of hours contract before expiry of the fixed term (or any agreed extension to the term) the PCT must have grounds to do so, as set out in the provisions of the contract. In the “model” APMS contract there is no standard provision allowing termination on notice without contractor fault.

PCTs that purport to terminate existing contracts on notice without the contractors being at fault may be acting in breach of legally binding contracts and consequently liable to pay damages to those contractors. In broad terms this would be calculated so as to compensate the contractors for the profit they would have earned over the unexpired term of the contract.

This could be an expensive exercise for a PCT and unlikely to appeal to one that is trying to save money. 

Second, as individual GPs are independent contractors, it will be difficult to “force” them to enter into new contracts on less favourable terms. They would have to be persuaded to take back responsibility for out of hours urgent care by renegotiation of the GP contract. As this will result in more work for them, they are likely to require an incentive - which will probably be a financial one. 

Multiplied across the country, it could cost the NHS huge sums to “get out” of its existing out of hours contracts and incentivise GPs to take back responsibility for out of hours urgent care.

If, as anticipated by the white paper, PCTs are themselves abolished by 2013, their contractual rights at that time will need to be transferred by statutory instrument to their successor body, the new NHS commissioning board.