From 1 October 2022, the GMS and PMS regulations were amended to require some GPs to self-declare their earnings
The principles of pay transparency in general practice were agreed between NHSEI and GPC England in 2019 and published in Investment and evolution - a five-year framework for GP contract reform to implement the NHS long term plan.
However, the negotiation included the agreement that GPs would not be singled out. There are no similar proposals for other clinicians in the NHS, or anywhere else in the UK.
Following representations by GPCE (GP committee England), it was subsequently confirmed that the implementation of general practice pay transparency was to be delayed on two separate occasions – autumn 2021 and spring 2022. However, the data collection will now begin in April 2023 with 2021/22 NHS earnings.
BMA position
GPCE (BMA GP committee England) has made our significant concerns about the change clear.
It provides no benefit to GPs or their patients, but will potentially increase acts of aggression and abuse toward GPs and practices. It will be damaging to morale and wholly reduce the ability to recruit and retain GPs.
GPCE has already received reports of GPs reducing their hours to remain under the threshold.
As GPCE did not agree to this amendment, we consider it to have been imposed on the profession and in breach of the original agreement.
Eligibility
The GMS, AMPS and PMS regulations contractually oblige the below individuals to self-declare their NHS earnings, if above the NHS earnings threshold for the relevant financial year.
This is all NHS earnings and not limited to income related to the GMS, AMPS or PMS contract and services.
Individuals required to self declare their NHS earnings
- individuals who hold the GP contract as partners (including partners who are not GPs) and contractors who are individual medical practitioners
- partners of clinical sub-contractors and sub-contractors who are an individual (including partners of any onward clinical sub-contractors and any onward clinical sub-contractor who is an individual)
- individuals who work for (are engaged by) either a contractor (regardless of whether the contractor is an individual medical practitioner, a partnership or a limited company) or clinical sub-contractor (including any onward clinical sub-contractors) under either:
- i. a contract of employment
- ii. a contract for services
- iii. or as a company officer
- Individuals engaged by a third party to provide clinical services (for example a locum engaged via an employment agency).
Practices will be required to "use reasonable endeavours” to amend their existing employment contracts with salaried GPs to include the same obligation to self-declare earnings as set out in the regulations. Practices can only amend existing employment contracts with the salaried GP’s agreement.
Practices are also required to “use reasonable endeavours” to amend their existing contracts with third party providers, such as self-employed locums and locum agencies, to require that any locums engaged are under an obligation to self-declare under the contractual terms of their engagement.
Salaried GP can refuse to allow their existing terms to be changed, and if they chose to refuse, they will not be under an obligation to self-declare.
When practices enter into new employment contracts with GPs, the employment contract must include the obligation to self-declare.
Please see below in the resources section a template letter for practices/contractors to use to contact salaried GPs, 3rd part providers or self-employed locums proposing the contract variation, and a template letter for salaried GPs to use to respond to the practice/contractor if they receive the proposal.
The regulations state a contractor must include a requirement to disclose NHS earnings in any contract for clinical services it enters into. The same requirement is imposed on sub-contractors by the regulations. GP contractors will have to ensure any sub-contracts include the required clause.
Do I, or my practice, have to declare earnings?
GPC has obtained legal advice regarding the reach of the clauses within the contract regulations (ie reaching beyond the GMS contract and into all NHS work).
Unfortunately, the contract may include any terms that are agreed between the two parties, therefore it is up to the contractor to accept them or not.
Not declaring earnings above the threshold would put a practice, not the individual (unless a single-handed GP) in breach of their contract. Where terms are entered into sub-contracts and other agreements, those individuals would be in breach of those contracts.
Any practice held in breach would be subject to the normal breach procedures outlined in paragraphs 70, 72 and 73 in schedule 3 in the GMS regulations.
In situations where there has been a breach of contract, but the breach is capable of remedy, a remedial notice may be issued. In doing this, the commissioner must provide details of the breach and the steps that will need to be taken to remedy it. Unless the breach places patients at risk or is a financial risk to NHS England, a period of not less than 28 days from the date of the notice will be allowed to remedy the breach. This means that contractors must declare earnings in the way prescribed within the time limit to avoid being in breach. If the contractor fails to remedy the breach, the commissioner may send notice of termination of the contract.
The BMA would be interested in hearing from any contractors or LMCs whose members receive either a remedial, or breach notice in these circumstances
Have you received a 14 day contract variation notice?
The new regulation applies to practices who have had their contracts varied to include the new rules, with a 14 day contract variation notice.
The legal advice we have received is that no practice has a contractual duty to comply with these new rules until it is served with a 14 day contract variation notice and the period of the notice has expired.
You should check whether you have received a contract variation notice and the period of the notice has passed. If so, then you must comply with the new regulations.
Many GP practices have not received any notice of variation.
Information to be declared
You must include your:
- name
- job title
- NHS earnings for the year in question (see definition of earnings section)
- the organisation(s) from which the NHS earnings were drawn.
You may have earnings from more than one contract or sub-contract and will be required to list all the organisations from which you have drawn NHS earnings from for the relevant year. This is to provide transparency as to the source of NHS earnings.
NHSEI has defined a specific process for submitting the declaration of earnings. This process is not defined in the regulations.
What happens to your declaration
NHS Digital will publish the information in a national publication, listing:
- name
- job title
- earnings (in bands of £5,000)
- the name of the organisation from which the greatest earnings were from
- the number of other organisations that they earn from.
Through the act of self-declaration, the individual will be consenting to publication. Individuals should therefore carefully consider the implications before self-declaration.
The threshold of NHS earnings
The threshold for the declaration of NHS earnings rises in each year of the five year period of the framework agreement for GP contract reform as set out in the table below.
| Financial year | Threshold of NHS earnings |
|---|---|
| 2021/2022 | Over £156,000 |
| 2022/2023 | Over £159,000 |
| 2023/2024 | Over £163,000 |
Definition of earnings
The current definition of earnings is based on a GP’s pensionable income. That is based on a GP’s taxable NHS income, but from an accounting point of view this may be too simplistic. This is likely to lead to examples of GPs in the same practice having the same income, but only some of them needing to declare it in line with the regulations.
Linking GPs earnings to taxable and pensionable profits is complicated and the current definition of earnings will need further consideration and amendment.
GPCE does not believe this system is fit for purpose, could directly harm individuals and adversely impact patient care. Therefore, NHSEI must pause the process.
Income examples
The following examples are courtesy of Ramsay Brown LLP.
- GP Dr Violet has pensionable income of £160,000 including £20,000 of notional rent.
- GP Dr Indigo is in a practice where some former partners own the surgery as well as Dr Indigo.
- They have agreed a lease between the practice and the partners, and the notional rent is paid over to their property accounts.
- Dr Indigo has £140,000 of pensionable profits and £20,000 rent.
- Both GPs have the same income.
Outcome
Dr Violet’s income will need to be declared, Dr Indigo’s will not.
- GPs Drs Blue and Green have superannuable profits in their practice of £152,000.
- They both use their cars 10% for business, agreed with HMRC.
- Dr Blue buys a new BMW for £35,000 while Dr Green buys a used Tesla for £35,000.
- They have the same earnings and the same costs for their cars, but have different outcomes because of the differing tax rules and allowance for low emission vehicles.
Outcome
Dr Green’s income will need to be declared, Dr Blue’s will not.
- GP Dr Yellow is a partner in a practice earning £140,000.
- The practice are members of an unincorporated PCN (ie not a company).
- The PCN has made a surplus of £100,000 of which the partners’ share is £11,000 - but this has not and will not be paid to him.
- Dr Orange is a partner in a practice earning £140,000.
- The practice are members of an incorporated PCN (a limited company) who has a surplus of £100,000.
- There is no intention to pay this out to the partners.
Outcome
Dr Yellow will have £151,000 of pensionable income and the income will need to be declared, Dr Orange’s will not.
- GPs Drs Brown and White have been in partnership together many years, earning £140,000 (around £17,500 per session).
- Halfway through the year Dr White died suddenly.
- Dr Brown employed a salaried GP to cover the sessions and worked evenings and weekends to keep the practice going.
- As a result of the differential in earnings between the former partner and salaried GP and the additional workload taken on to manage the practice, he earned in excess of £150,000.
Outcome
Dr Brown’s income will be declared with no recognition of the additional time and responsibility taken on to keep the practice going.
- GPs Drs Magnolia and Purple are in partnership with superannuable profits of £290,000.
- Dr Magnolia works eight clinical sessions, and also earns £9,000 from a training grant for looking after GP registrars.
- Dr Purple also works eight sessions and in addition to the profit share, teaches medical students and earns £9,000 received from the university.
- Since the income from medical students is non-superannuable, Dr Magnolia will have £154,000 of pensionable income.
- Dr Purple will have £145,000 of pensionable income.
Outcome
Despite the same income, Dr Magnolia’s income will be declared, Dr Purple’s will not.
How income will be verified
It is unclear to us how NHSEI will police this. We are not aware of a way that NHSEI might verify the income of those who have declared or not declared, but we cannot be sure that this is not possible.
We understand NHS Pensions and HMRC data on earnings are usually anonymised before sharing with NHSD/NHSEI, but we cannot be sure that they cannot access identifiable data.
If a GP does not declare and is approached by the ICB or NHSEI, we would expect evidence of why they believe the GP should declare and where they have got that information. If this has been sourced through illegitimate means, it will be open to legal challenge.