On April 1, 2013, primary care trusts’ commissioning functions were moved to the long awaited new NHS Commissioning Board. Within the first week, the Board adopted the name ‘NHS England’ (although legislative changes since continue to refer to ‘the Board’).
The brave new world was awaited with anticipation and some trepidation. For the first time in years, centralisation promised consistency. However, would it be consistently bad? Despite months of preparation and shadowing of the PCTs, NHS England (NHSE) failed to publish its’ policies in relation to primary care dentistry on time.
However, during May and June, it became clear that new policies, though unpublished, were being enforced by some local area teams (LATs). Finally in June, NHSE published its policies in relation to mid-year and end of year performance, incorporation, PDS to GDS conversion, contract termination, the death of a ‘single-handed’ contractor, and variations to contracts.
Some policies hold the promise of positive consistency. For example, the policy on incorporation sets out, for the first time for all contractors in England, the criteria which must be met and the application form which must be used in order to obtain consent. This is a far cry from the range of policies (or absence of policies) that existed previously across PCTs.
However, it has not all been positive. New difficulties have been introduced by the new Policy for Variations of Primary Dental Care Contracts, in relation to applications to move premises, ‘24 hour retirement’ to take pension without loss of contract, and partnership changes. It is this latter issue that has seen the most immediate upheaval and has so far affected the greatest number of contractors.
Partnership changes
The rights to opt to practice in partnership with others, take on and shed partners, and convert from partnership to single-handed contractor have been included in every GDS contract since their advent in 2006. Clauses 231 and 292-304 which set out those rights are required by law and as long as certain conditions are met, PCTs were and NHSE is now obliged to vary the contract to reflect those changes.
It is not a secret that these rights are used to carry out business succession plans, to manage transition when the ownership of underlying assets of practices change.
There are many circumstances when partner responsibilities and roles change too, and ‘sleeping’ or ‘minority’ partners who have given up all decision-making authority to one or more other partners are common in these circumstances. Due to this, the sleeping partner is indemnified by the non-sleeping partners from financial liabilities. These arrangements often last for a temporary period of a few months.
In such circumstances, the Health and Social Care Act 2008 and regulations made under it demand that the ‘person carrying on regulated activities’ should be registered with the Care Quality Commission. The name or names included on any contract associated with the practice should not necessarily be decisive of who should be registered. Those partners who were in charge of carrying on the regulated activities applied for registration, whilst the partner who was to become the ‘sleeping’ partner applied to deregister. No further changes to the new registration were necessary when the ‘sleeping’ partner later left the partnership altogether.
However, in early May LATs started insisting that they would not vary contracts in to partners’ names, as contractually obliged to do, unless and until CQC registration applications in the names of those partners had been made or registration obtained. The new policy was published in June and it makes clear at paragraph 17 in relation to single-handed contractors opting to practice in partnership that: “The contract holder should also show that they have received CQC registration under the new partnership agreement.”
At paragraph 22, the new policy demands the same in relation to the conversion from partnership to single-handed contractor.
Although very confused, at paragraph 23 the policy also refers to partnership changes when another partner is added or one leaves, leaving the partnership two or more strong. For partnerships registered with the CQC before February 4, 2013 a whole new application is once again demanded. However, for partnerships registered since that date, which therefore were subject to the new partnership membership condition which was introduced by the CQC at that time, the partnership must simply apply for a change in the condition which stipulates who the partners are, rather than make a whole new application.
This has caused all sorts of issues. Confusion has reigned. It has been quite clear that little or no discussion took place between NHSE and CQC in the preparation of the policy. Many contractors obediently trying to follow the correct and normal procedure were faced with delays and misinformation as NHSE refused to vary contracts into partners’ names.
The CQC is faced with this workload being doubled. Partners are faced with applying for CQC registration in the names of the partners, only to immediately apply to deregister afterwards and make an application in the name of the non-sleeping partner only, so that such registration will be in place in time for the sleeping partner to leave the partnership altogether (though when there is more than one non-sleeping partner, the application may now be for a change of the membership condition).
The CQC has always been quite clear that it will not issue a Notice of Decision until the partnership has actually commenced, or for example, when they are notified that a sale and purchase of the assets of the practice has completed. The partnership commences when the GDS contract is varied, following 28 days notice to NHSE. That is because, where there are funding arrangements in respect of the new partner, banks will not allow draw-down of funds unless it is contemporaneous with the variation of the contract.
Various LATs have been interpreting the new policy to mean that they may not vary the contract until CQC registration is actually in place, something the CQC will not do. A true chicken and egg scenario! Indeed, ridiculously and in breach of contract, some LATs have even refused to start the 28 day period until CQC registration is in place, causing great delays for no justifiable legal reason whatsoever.
For sleeping partners, there is also a risk to consider in relation to their protection from liability for breach by the non-sleeping partners of CQC compliance. Unlike financial liability under the GDS contract, the sleeping partner cannot be effectively indemnified against criminal liability.
NHS England’s stance in these respects appear to be rooted in incompetence , a lack of knowledge (or interest) in the sector and how things work, including the requirements and processes of its sister organisation the CQC, or a determination to be difficult and awkward. The policy breaches statutory requirements and the contractual requirements of the GDS contract obliging NHSE to vary contracts, and so puts NHS England at risk too.
Unexpectedly perhaps, not all LATs are enforcing their new policy. It is unclear why, but some are either enlightened, in the knowledge that the policy does not work and is inappropriate, or they are not aware of the policy yet. However, for many contractors who desperately want to do the right thing and have as simple a life as possible, it remains a guessing game.
It has always been difficult to get everyone and everything ready in such arrangements at the same time, trying to tee up the CQC, NHS England, banks, landlords and their processes, all for one target date. These new issues exacerbate those difficulties.
However, the British Dental Association is reportedly aware of these issues and has been in discussion with CQC and NHS England. It is hoped that the aggregate effect of its efforts, the deluge of calls and emails regarding this situation from contractors and lawyers to LATs and CQC and common sense may result in changes that make it easier for contractors to identify what they must do and make doing it simpler. We shall see.