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Legal Implications of Clinical Commissioning for GP Practices

20th November, 2012

There has been much debate about what the nature of the relationship between the new Clinical Commissioning Groups and their constituent practices will be.  However, two things are now clear.

Firstly, every practice holding an NHS contract will be a member of a CCG.  Secondly, the contract setting out the obligations of individual practices and giving rise to the right to be paid will be between the practice and the NHS Commissioning Board, not the CCG.  Therefore, performance issues will be a matter between the practice and the NHS Commissioning Board as the parties to the contract.

However, the question remains as to what control or incentives CCGs will be able to deploy to seek co-operation from constituent practices in complying with the strategies and healthcare priorities that the CCGs decide on.

One answer is that in relation to non-core services (ie, those services beyond the scope of the standard NHS contracts which practices hold) CCGs are more likely to acquire these services from providers who are performing well and who deliver value for money.  In turn, this gives rise to opportunities for well-performing practices to increase their revenues through the provision of non-core services.

Non-core services do not have to be provided through the traditional sole trader or partnership structures which practices are compelled by the terms of the NHS contract to deliver the core services through.  This means that thought needs to be given to whether existing partnership structures are the most appropriate vehicles for delivery of non-core services.  There may also be opportunities to join up with other practices and offer non-core services as a joint venture for mutual benefit.

Tax advice should be sought as to what is the most tax efficient structure for any such venture.  This might be a company or a limited liability partnership (an LLP).  Legal advice should also be sought to establish the company’s / LLP’s constitution and to set out in an agreement important matters such as how profits are to be divided and what happens if a member dies or wants to retire.  Giving these matters proper thought at the outset and recording what is agreed can save a great deal of time and expense as compared to dealing with a problem once it has arisen.

For assistance with issues arising out of Clinical Commissioning, or advice in relation to legal structures and agreements for pursuing the commercial opportunities that Commissioning gives rise to, contact Nick Clarke on 01244 405558 or at [email protected].

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