Subcontracting: key considerations for GP providers

GP providers need to consider:

• Whether the approval of their NHS Integrated Care Board (ICB) is required before the subcontracting commences
• What terms apply to such subcontracting

NHS ICB approval

It is imperative for GP providers to recognise that their GMS, PMS and/or APMS contracts will all contain provisions stipulating whether subcontracting is permissible and if so, what prior steps are needed. If we look at two of these three types of contracts at a very high level we can see the significant differences that exist.

• GMS contracts
  Under this contract, a GP contractor can subcontract the delivery of clinical matters provided that it is reasonable in the circumstances to do so, the proposed subcontractor is qualified and competent to provide the service and prior written notification is given to their ICB of their intention to subcontract (with such notification including prescribed information set out in the contract itself). Upon receipt of that notification the ICB has 28 days to object to the subcontracting but can only do so if the arrangements would put the safety of patients at serious risk or the ICB at risk of material financial loss.
• APMS contracts
  Under an APMS contract, the position is quite substantially different to the GMS position. While there can be important variations depending on the age of the APMS contract that is in place, the latest standard APMS contract stipulates that any subcontracting of clinical matters requires the approval of the ICB.

Assuming that subcontracting is permissible, then care is needed to ensure that clear and unequivocal terms are in place. Whilst not an exhaustive list these should cover the following:

(i)     The length of the arrangements

(ii)    The circumstances under which the subcontract can be terminated (which should include a situation where the core NHS contract comes to an end)

(iii)   The obligations on both parties

(iv)   The services that are being subcontracted

(v)    The locations from which the services are to be provided

(vi)   The KPIs (if any) applicable to the services being sub contracted

(vii)  The price payable and the payment terms

(viii) The liability and insurance provisions

(ix)   The terms applicable to the variation of services

(x)    The exit arrangements

All these terms are important, but GP providers need to understand that the exit arrangements outlined above should have regard to managing employees. The initial subcontracting of clinical services and any subsequent changes to that service provision (such as bringing the services back “in house”) may trigger a service provision shift under TUPE. Where there is a service provision shift, and there is a so-called organised grouping of employees that, as its principal purpose, carries out of the relevant activities being shifted, then due regard to the obligations under TUPE will be required.

If you need help with any proposed or existing subcontracting arrangements or any changes, then please do get in touch with our primary care team.