When GPs were told they could no longer claim payment for giving telephone advice, they were up in arms. But Steve Ainsworth says they should never have been claiming in the first place

The argument between GPs and the Department of Health over payment for telephone advice is a long-running one (see HSJ 27 August, page 6). But for those who may have missed the sorry saga, it is necessary to recap.

As part of their complex payment package, GPs can claim a fee for treating patients temporarily resident in their practice area - and a similar fee for treating other unregistered patients either in an emergency or for providing immediately necessary treatment to patients they decline to accept on a permanent basis.

The scale of such fees and the circumstances in which they may be claimed are set out in the awesome Statement of Fees and Allowances for General Practitioners in England and Wales - more handily known as the Red Book.

The fun appears to have started on 31 October 1997 with the issue by the NHS Executive of FHSL (97)42 which advised health authorities not to make payment to GPs when the only service provided to a patient was telephone advice.

In the new year, the FHSL was followed up by a formal amendment to the Red Book which expressly excluded telephone advice from eligibility for payment.

GPs were upset. The BMA opened negotiations with the DoH to seek compensation for members' 'loss of income'.

According to recent reports, the GPs have been victorious: health minister Alan Milburn has not only agreed to compensate GPs but has also agreed to restore the deleted right to payment.

Meanwhile, GPs in Cornwall claim to have lost so much money that KernowDoc, a GP out-of-hours co-operative, plans to submit retrospective claims for telephone advice in respect of advice to 2,000 patients. The National Association of GP Co-operatives believes that the Cornish case could open the doors to claims from another 1,000 GPs.

Fair enough? It all seems so straightforward?

The problem is, it is all tommy-rot. The whole debate and negotiations have been based on nothing. GPs have never been eligible to claim for providing telephone advice - nor have they lost income as a result of the recent Red Book changes - and they certainly are not eligible for any compensation: quite the contrary!

FHSL (97) 42, which set this particular ball rolling, was quite clear: in the words of the letter: 'It has always been the department's policy... that a fee is not payable for telephone advice. This was the intention behind the current wording of the Statement of Fees and Allowances and remains the department's interpretation of the respective paragraphs.'

Perhaps the use of the words policy and interpretation muddied the waters. There was certainly no need for such ambiguity: although the relevant paragraphs in the Red Book did at that time simply refer to the provision of 'treatment', a word which might on its own have been subject to some debate. The word was, however, already legally defined in the NHS General Medical Services Regulations (the GP contract) of which the Red Book is a subsidiary document.

The definition of treatment by a GP as set out in the current regulations (SI 1992 No.635) is: 'medical attendance and treatment'. There has never been any suggestion that the word 'attendance' used in this definition has ever meant, anything other than the normal dictionary definition of attendance - 'a personal presence'.

Recent Red Book changes have merely made more explicit something that was already the case.

Have GPs suffered a real loss for which they might seek compensation? Hardly.

In the first place, any who were claiming for only giving telephone advice should not have been doing so; and secondly, any apparent reduction in income would in any event show up as an unexpected income shortfall among the profession as a whole and be compensated for by marginally higher fees across other categories in the following year under GPs' system of net target remuneration.

Perhaps it is unfair that GPs do not get paid for giving telephone advice to visitors to their practice area, but the contract is still the contract until it is changed - and arguably, they do get paid anyway, but as part of the overall payment package rather than as a specific item of service fee.

The negotiations involving this issue have a kind of Alice in Wonderland quality to them - one can only speculate that someone, somewhere, has been rather disingenuous.

Meanwhile, what of the doctors in Cornwall and elsewhere who plan to seek compensation? An obvious conclusion is, firstly, that they will get no where with their claim.

A second conclusion will, however, cause them far more concern. The implication of the reported facts are that until the DoH's letter of last October was received, some GPs were erroneously claiming for giving telephone advice - and in large numbers.

Regulation 35 of the GP contract gives explicit instructions to HAs about the action they should take in the event that payments have been made to GPs in circumstances where they were not due.

The consequence of making an incorrect claim for payment, however innocent, is that the amount overpaid should be recovered from the doctors.

If the overpayment is not admitted, the issue must be dealt with under the NHS (Service Committee and Tribunal) Regulations, a rather tiresome and complicated procedure - but not so Byzantine that it has not been used regularly in the past.

This looks like a national story that is set to run for some time. One wonders whether GPs in Cornwall might not come to regret raising the question in the first place. HAs will surely be failing in their statutory duties if they do not seek to recover incorrect payments from previous years.