One of England’s largest ICBs has issued a warning to all GP practices who are stopping local enhanced services as part of collective action.
In a letter sent earlier this month, North East and North Cumbria (NENC) ICB told practices that even if they have not signed a contract for 2024/25 they may still need to serve months-long notice periods.
Local GP leaders think this argument is ‘dubious’ and ‘might not be entirely legally accurate’, while the BMA told our sister title Pulse that any ICBs making a case such as this would need ‘clear evidence’ of a contract between parties.
The ICB, which covers around 350 GP practices, said it is ‘aware’ that some may ‘be considering actions relating to ICB NHS Standard Contracts such as LES/LIS’, in addition to the options for collective action laid out by the BMA.
Its letter, seen by Pulse, said: ‘If you have not signed your 2024/25 LES/LIS contracts yet, this does not necessarily mean that you can cease provision of services as an implied contract may have been established.’
An implied contract would be established by any actions from practices that indicate they plan to ‘maintain the contractual relationship under the existing terms’.
‘Whether an implied contract has been established will be judged on a case-by-case basis however the ICB’s position is likely to be that an implied contract will have been established if a provider has been delivering services and/or receiving payments in 2024/25,’ the letter continued.
The ‘no-fault termination notice periods’ for local enhanced services vary across NENC, from three months in some areas to 12 months in others, depending on the previous CCG footprint.
NENC warned practices that it expects ‘these notice periods to be adhered to’ in order to ‘ensure safe service continuity’ and to give the ICB a chance to ‘safely reprocure’ the service.
The letter added: ‘In instances where contracts are not signed and notice is not formally provided, we will assume your intent to continue and therefore be paid for any related activity.’
Gateshead and South Tyneside LMC chair Dr Paul Evans said this appears to be an attempt by the ICB to frustrate GP collective action.
He said: ‘We think this might not be entirely legally accurate. Their interpretation is that by continuing an enhanced service from last year, even in the absence of a signed contract, practices have committed to delivering them for the further year. We think that’s actually quite dubious.’
‘I struggle to see how if a practice has not actually signed a contract stating that they’re taking on this service, let alone a contract that actually has a notice period like this written into it, which it doesn’t, then we don’t see how it would be legally enforceable,’ Dr Evans added.
He said that ‘quite a few practices are looking to hand back various enhanced services’ as part of collective action, and also that some were ‘already doing it’ before the BMA’s action was announced in early August, but these practices did not receive such a warning from the ICB.
Commenting on NENC ICB’s letter, GP Committee England deputy chair Dr David Wrigley said: ‘Whether and when a practice can stop providing Locally Enhanced Services (LESs) depends on the terms of their individual contract with their Integrated Care Board (ICB).
‘For an ICB to make the case that a practice is contractually bound to provide services for another year – or on an indefinite, ongoing basis – it would need to show clear evidence that this is what had been agreed between the parties.
‘In ordinary circumstances, it is perfectly legal for practices to stop providing LESs once the agreed term of the contract has ended, so long as they have complied with any requirement under the contract to give notice.
‘In any case, practices wishing to stop a LES should make their intentions clear to their ICB as early as possible to try to avoid any ambiguity around future arrangements. We also advise colleagues to discuss any issues with their LMC prior to making any decisions about their contracts’
NENC chief contracting and procurement officer David Gallagher said: ‘We recognise the significant challenges that our GP practices across the North East and North Cumbria are facing in providing vital primary care services for our communities.
‘During collective action, it is really important that patients are able to access services and that practices understand their contractual obligations, including those to their patients.
‘This is to ensure that the ICB can commission any services that we are given notice on, to maintain continuity of care and minimise disruption for patients.’
At the start of GP collective action, NHS England instructed ICBs to ensure practices are continuing to meet contractual guidance and the ‘reasonable needs of patients’.
A version of this story was first published on our sister title Pulse.
