• Many PCNs may be working with legal documents that lack rigour
  • PCNs were formed over a few months and may have rushed some of their legal documents, lawyers warn

Many of the legal documents that underpin the agreements uniting GPs in the NHS’ flagship primary care scheme may be “rough and ready” and need redrafting, HSJ has learned.

The speed at which primary care networks had to form has left legal experts concerned the fundamental legal documents that govern how they operate are not robust or detailed enough to cope with challenges in the future.

GPs have been brought together into PCNs to deliver coordinated care to their local population. The process to form them took a few months, up to the 1 July start date.

They are not statutory bodies so relationships between the different core practice members are governed by network agreements. These 106-clause documents define how members work together.

Individual PCNs were able to add additional detail in seven schedules appended to their agreement. They are crucial for defining how networks share costs and risks. However, lawyers have told HSJ that, for many PCNs, they may be “rough and ready” and will need a number of updates to get them in a steady form.

There is “considerable freedom for PCNs to determine how they operate within the schedules,” according to Robert McGough, partner in Hill Dickinson law firm.

“From what we have seen and heard there have been considerable challenges in setting the schedules up, especially in the limited time to form and document them and new relationships [between member GPs], where there has not been previous experience of joint working or risk-sharing,” he said.

“This means that what has gone into the schedules in some instances may well be quite rough and ready to get them over the initial line for qualification as a PCN but is not likely to be the final form for the PCN.”

The bare minimum

Ruth Griffiths, also a partner at Hill Dickinson, said there will be “wide variation in the content and quality in the schedules across the country”. In the absence of specific guidance early in the process, many PCNs will have “produced their own takes”.

“My concern is that a lot of PCNs may have done the bare minimum on these schedules at this point and that the risk is then that they get put in a drawer and never looked at again, which would negate much of the potential benefit which the PCN approach could bring,” Ms Griffiths explained.

This is not a universal issue, however. Consultancy Agencia, which has developed a consortium of professional service companies – including law firm Capsticks – to support primary care, has worked with more than 40 PCNs as they built their network agreements.

“These agreements should hold them in good stead until such time as the networks develop or changes are required,” Kiran Jonhson from Agencia told HSJ. “Our experience has been generally positive regarding the schedules.”

Getting it right first time

Richard Vautrey, chair of the British Medical Association’s GPs committee, has previously told HSJ the first year of the five-year plan for PCNs was deliberately left light on mandatory services so the nascent networks can develop and prepare for years to come.

“Practices were told that PCNs were low risk in the first year, which some interpreted as meaning the documentation was not so important,” Nils Christensen, managing partner at DR Solicitors, added. 

“Whilst it is certainly true that year one risks are lower, the risks will increase in subsequent years as PCNs become more sophisticated and larger amounts of money flow through them,” he said. “It would be much better to get the documentation right at the beginning, in order to have the governance in place to manage the larger risks when they arrive.”

“One purpose of the PCN schedules is to establish a cost-sharing arrangement between the core network practices,” Mr Christensen said.

For example, issues could arise when a member practice incurs a cost and then recovers it from its fellow network members through the shared PCN bank account. “Unless the agreement has set out very clearly which costs are recoverable, and which are not, there is scope for a lot of disputes as practices seek to recover what they consider to be legitimate PCN costs but have no legal basis for doing so,” he explained.

“Since many practices have opted to set the threshold for changing the agreement very high, often at unanimity, making any changes to it now to address these kinds of issues may be very difficult,” he added.

An NHS England spokesman said: “Individual PCNs are responsible for agreeing their own arrangements, which will reflect their circumstances and must ensure that their network agreement accurately reflects their ways of working and current membership.”