Regulations 24 and 25 of the GMS Regulations

Regulations 24 and 25 of the GMS Regulations provide detailed provisions around the fees that NHS GP practices are entitled to charge.

They do so with reference as to whether the treatment is within the scope of primary medical services or not. Primary medical services are defined in the interpretation section at regulation 3, which in turn refers to Part 4 of the NHS Act 2006.

Please see here.

What NHS GP practices cannot charge for

NHS GP practices cannot charge fees to registered patients or temporary residents for:

• the provision of any “treatment” which is required to be provided to the patient under the GMS contract;
• the provision of any "treatment" which is required by the patient but is outside the terms of the GMS contract;
• and providing a prescription.

Exceptions 

The prohibition on charging fees in these circumstances does not apply if they come within the scope of one of the categories in Regulation 25.

What NHS GP practices can charge for

If the patient is a registered or temporary patient of the NHS practice

An NHS GP practice can charge for services other than treatment or the provision of a prescription.

If the patient is not a registered or temporary patient of the NHS practice

Then an NHS GP practice would not be in breach of Regulation 24(2) by charging a fee for the provision of treatment or prescription (but may be in breach of another part of Regulation 24).

Exceptions 

An NHS GP practice cannot charge a fee in the following narrow factual circumstances:

• assessments of registered or temporary patients to assist creditors in deciding what action to take where the debtor has a mental health problem; and
• services to patients who are not registered with the practice for immunisations requested in connection with travel abroad or providing or prescribing malaria drugs.

If a patient seeks essential services from an NHS GP practice but the NHS GP practice has doubts as to whether the patient is registered with the practice, a fee can be charged for providing the services. If it turns out that the patient is registered, the fee is repayable.

The position of individual GPs

Salaried GPs

The restrictions in Regulation 20(6)(a) do not apply to salaried GPs who work in a GMS practice. Such doctors are fully entitled to divide their time between delivering NHS services and delivering private primary care services. 

Sole practitioners or partnerships

Where a GP enters into the GMS contract in their own name as a sole practitioner or as a partner, this individual doctor can only provide private primary care medical services outside core hours. This is a highly restrictive provision because a contracting GP is not contractually obliged to devote all of his or her time to the delivery of GMS services during core hours.

Limited companies

If the “contractor” to a GMS contract is a limited company, say company A, the restrictions on providing private medical services apply to the company alone and not to the individual GPs who own shares in the company and/or are directors of the company. It would therefore be open to the same GPs who hold shares in the company and work in the NHS practice to form a separate limited company, company B, to run a private medical practice. As long as those services are clearly separated from the delivery of NHS services and Company A continued to discharge its duties in full under the GMS contract, it would be possible for Company B to provide its services:

Can NHS GPs use NHS premises and NHS IT systems for private work

This guidance clarifies whether NHS GPs can use NHS premises and NHS IT systems for private work.

Using NHS premises for private work

Private services offered by contractors 

A “contractor” for these purposes is any GP who is personally a party to the GMS contract (either as a sole contractor or as a partner in a partnership where the partnership is the contractor).

The effect of Regulation 20(6) is that any contractor must ensure that no part of the practice premises which are funded by NHS England under the General Medical Services – Premises Costs) Directions 2024 (“the PCD 2024”) is used by the contractor to provide any form of private medical services, whether during core hours or outside core hours.

Where NHS England is fully funding the cost of practice premises which are intended to be used for the delivery of NHS primary care services, the GMS contract provides that only NHS funded primary care services should be delivered from those premises.

However, the PCD 2024 recognises that practice premises may be used for multiple purposes and there are provisions in PCD 2024 to ensure that where primary care practice premise are, in part, used by anyone else, NHS England should only fund those parts of the premises that are used for the delivery of NHS primary care services. That apportionment rule applies both where part of the premises is used exclusively by a third party or where parts of the premises are shared between the practice delivering NHS services and the other user (see para 49(3) of the PCD 2024).

Private services offered by non-contractors

If non-contractors within a GP practice were to set up a private company to deliver a private primary care services and that company either exclusively occupied part of the practice premises or shared the premises with the GMS practice, the apportionment rules could be used to divide the costs between the GMS practice and the private practice. In such a case, there would be no breach of Regulation 20(6)(b) because the application of the apportionment rules would mean that the private practice would not be operating from any “part of any practice premises in respect of which the Board makes any payments”. However, there would be a reduction in the premises payments from NHS England under paragraph 49(3) PCD to reflect the shared use. 

Using NHS IT systems for private work

NHS IT systems cannot be used for private work because there is no contractual entitlement in the GMS contract to use NHS funded systems for non-NHS work.