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Monday 24 October 2016
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In dispute

The NHS Litigation Authority has been busy this year with patient and practice disagreements. But is it better to use this service rather than go to court?

GPs may not be aware that when they entered into their general medical services (GMS) or personal medical services (PMS) contract, if they elected for it to be an NHS contract, then they were also agreeing that any contract disputes being dealt with under the NHS dispute resolution procedure. This means contract disputes will be determined exclusively by the NHS Litigation Authority (NHSLA) rather than the courts. This isn’t the case for partnership disputes that are dealt with through the courts or arbitration, depending on which is agreed.

NHS dispute resolution procedure
Under the NHS dispute resolution procedure, if local resolution (potentially involving the local medical committee (LMC)) has failed then the dispute is referred to the secretary of state for health. Rather than deal with it personally, the secretary of state delegates the function to the NHSLA, a not-for-profit unit of the NHS.
The first part of the process is that any dispute must be referred within three years of the start of the issue or when the issue came to your attention. This is an important difference with court proceedings that usually allow a limitation period of six years for contract disputes.
The referral to the NHSLA needs to be a written request that should include the name and address of the parties to the dispute, a copy of the contract and a brief statement describing the nature and circumstances of the dispute.
The parties are then invited to make representations about the matter, as well as make observations on the submissions of the other party. In addition, the parties (or their legal representatives) may be able to make oral representations. Taking all of these representations and observations into account, the NHSLA will then determine the matter in writing, giving reasons for the decision they have reached. The decisions dating back to 2006/07 can be viewed on the NHS Litigation Authority website (see Resources).

The NHSLA’s decisions
The NHSLA deals with an average of three to four medical decisions per month (as well as dental, pharmaceutical and ophthalmical decisions). A typical case might cover a notional rent or other payment disputes, with a bit of variety provided by decisions like the recent case over locum payments for maternity cover.
There are also times when the NHSLA’s caseload increases dramatically when an issue affects the whole of general practice.
Back in 2006/07 there were a number of cases dealing with the recovery of overpayments and the reimbursement of superannuation. In 2007/08 it was out-of-hours funding and then, in 2008/09, it was back to superannuation. There were a couple of quieter years before disputes over core hours cropped up in 2011/12. Then, in 2012/13, the patient participation directed enhanced services (DES) first became an issue with a handful of decisions being published. In 2013/14 more disputes arose over the following year’s patient participation DES, although it still wasn’t as much of an issue as the quality outcomes framework (QOF) outcomes.

Patient participation DES 2013/14
However, all of these issues pale in comparison to the number of disputes that have been determined this year over payments for the patient participation DES 2013/14. Between February and July 2015 there have been 54 decisions over payments for the patient participation DES alone, more than the number of cases the NHSLA deals with in an average year.
Practice managers might recall there was a bit of outcry when payment under the DES 2013/14 started being refused because local area teams seemed to focus less on outcomes and more on box-ticking. Unfortunately, the decisions haven’t changed as a result of the disputes going to the NHSLA.
It isn’t the number of disputes over the DES 2013/14 that is the biggest surprise (it probably just reflects a change in approach of local teams) but rather it is the number of NHSLA determinations that upheld the original decisions. Of the 54 published cases only one overturned the original decision of the area team (Decision 17852). In the other 53 cases the area teams apparently got it right first time.
The majority of cases failed on either components one, two and six from the Patient participation directed enhanced service (DES) for the GMS contract 2013/14.1 While a handful failed on each of the remaining components. Whether the dispute was based on a GMS or PMS contract roughly matched the split of contracts themselves (60/40) but, unexpectedly, a disproportionate number of decisions came from London-based surgeries – 49 of the 54 published decisions. This figure may be explained by the London region guidance being clearer than the national guidance. A number of the NHSLA decisions highlighted contractors’ frustration at the lack of clarity of the national guidance and were decided on the basis of this guidance instead. If this guidance was clearer then failures may have been more easily identified in parts where the national guidance was lacking.
By way of example, a number of decisions failed on component six1, which required a contractor to publish a report showing the various steps it had taken in respect of patient participation on its website. Some practices didn’t have websites and published their reports on NHS Choices, which had been previously been permitted under the DES in 2012/13 and again in 2014/15. However, the 2013/14 DES didn’t specifically permit publication on NHS Choices (the NHSLA recognised the rationale was unclear) and the decisions highlighted that the London guidance excluded it.

Decisions 17917 and 17919
The most surprising decisions of all were identical disputes where the entire DES payment came down to whether an email was sent or not (Decisions 17917 and 17919). The DES required practices to email either a copy of their report showing the actions it had taken or a link to it on their website. In these two decisions it was recognised that the practices, “had followed the DES guidance and completed all components”. Both practices indicated the required e-mail had been sent (by coincidence, on the same day) but was subsequently deleted from the sent folders of their accounts to free up memory.
As the decision put it, “the problem the practice has is with the belief by the area team that there is absolutely no likelihood of the possibility that the e-mail from the practice, providing the link to the websites could have been deleted in error”. An astounding assertion in its own right but, remarkably, one the NHSLA upheld when finding it was not satisfied that the contractor had sent the email, despite considering the area team’s approach as being “hard to grasp”.
The NHSLA suggested that, as both practices were aware there had been a few issues in the past with emails not being received, “it may have been prudent for the contractor to have checked receipt by NHS England of the report and website link”. This approach to the burden of proof is in contrast to court proceedings, which would normally determine a question of fact in this way on a balance of probabilities (ie, which is more likely, that the email wasn’t sent or there was an error at the other end). Had the matter been heard at court, the surgery would presumably have been able to provide witness evidence under oath confirming the email was sent. The area team could also have provided witness evidence as to the robustness of their procedures that could then be tested on cross-examination.

There are undoubted benefits in using the NHS dispute resolution as it will save significant time and management costs compared to formal court proceedings. However, practices may also miss the opportunity to have their contract dispute dealt with in a more legal and adversarial manner before a judge rather than an independent NHS body. If you don’t want the NHSLA determining disputes you need to check whether you have opted to be a NHS body or not, and opt back into making it a proper contract.

Nick Martindale,
senior associate, Veale Wasbrough Vizards LLP.

1 NHS Engalnd, British Medical Association and NHS Employers. Patient participation directed enhanced services (DES) for the GMS contract 2013/14. 2013. (accessed 9 October).

NHS Litigation Authority.