PCC medical helpdesk query

Hello helpdesk,

We have a GMS practice with two clinical partners, and we have been approached by the practice to remove one of the partners due to the outgoing partner being declared bankrupt which they advise has triggered the expulsion clause within the partnership agreement. Please advise legal/regulatory consideration.

Many thanks

ICB

Answer:

Thank you for submitting this GMS partnership matter to the helpdesk.

As a general observation, you say the practice has two clinical partners to the GMS contract and refer to the proposed leaver being a GP – of course, if the GMS contract is to continue with only one individual nominated appropriately then that individual must be a GP. Also, it is not for the ICB to ‘remove one of the partners’ unless the conditions in GMS regulation are satisfied.

In a partnership that only has two partners and one leaves without a replacement partner joining the partnership, by definition, there is no longer a partnership as there are no longer two individuals practising in partnership – at this point the process to nominate one individual to take forward the contract will need to be followed and you will need to have written confirmation signed by both partners to complete the process. If the partnership fails to nominate an individual and the partnership dissolves, then the contract would arguably terminate but I advise you always take legal advice where potential termination maybe involved.

If the contract is to be taken forward by a nominated individual, then the partnership must inform you in writing, signed by all partners. The notice must specify a date on which the change from a partnership to an individual is taking place and this date must be at least 28 days after the notice is given. The commissioner must then acknowledge this notice and if in agreement, issue a contract variation notice that changes the contract from being held by a partnership to being held by an individual. The NHS England Policy and Guidance Manual sets out the process in 8.5.21-8.5.29 and provides some templates in Annex 5a and 5b.

While not your scenario, you may wish to be aware of a recently published judicial review considering whether a GMS partnership contract effectively terminates in the specific circumstances of one in three partners ‘falling out’ – non-legal term – and the partnership is dissolved by the two other partners, but they immediately form a fresh partnership and seek to continue the GMS contract. The legal judgement, which appears to depart from previously understood position, can be found at: https://resolution.nhs.uk/wp-content/uploads/2024/03/V-Bhat-G-Bhat-V-NHS-Litigation-Auth.pdf

Contact enquiries@pcc-cic.org.uk to discuss how we can help your ICB. Visit https://www.pcc-cic.org.uk/annual-contracts/ to find out more about how to access our helpdesk and surgery discussion sessions.