Restrictions on private practice for GPs
Private practice is significantly restricted in terms of NHS registered patients for GMS (general medical services) and PMS (personal medical services) contractors. Part 5, Regulation 24 of the National Health Service (General Medical Services Contracts) Regulations 2015 (which are replicated in any PMS contract), sets out the basic exclusion in charging NHS patients for care. It states:
- the contract must contain terms relating to fees and charges, which have the same effect as those set out in paragraphs (2) to (4)
- the contractor must not, either itself or through any other person, demand or accept from any of its patients a fee or other remuneration for its own benefit or for the benefit of another person in respect of the provision of any treatment whether under the contract or otherwise; or a prescription or repeatable prescription for any drug, medicine or appliance.
There are some very limited circumstances where a fee may be charged for services to an NHS registered patient, which are set out in Regulation 25.
Neither GMS or PMS contracts stop contractors accepting private patients for care, but they cannot simultaneously be NHS registered patients with the practice holding the GMS or PMS contract under which they are cared for.
New contractual regulations introduced in October 2019, restrict GP practices from offering or advertising - during NHS working time and on NHS funded property - private services to anyone (whether a registered patient or not), if those services fall within the scope of primary medical services.
This means that if a practice provides an NHS commissioned service, they cannot then charge for (or host) that same service during hours where they provide those NHS services and on their practice premises.
This does not affect a practice’s ability to charge non-registered patients for services that are not part of primary medical services (ie not NHS commissioned services) or to charge their own patients in the limited circumstances outlined above.
Charging patients for services through private companies
Some GPs may choose to hold shares or be partners in private companies providing medical services, and the question arises whether the private company can charge the GPs' NHS patients for private services.
Even where the GP is not personally charging his/her own patients for the service, but it is, instead, the company that is charging the patients at arm’s length, it is likely that the arrangement will fall foul of Regulation 24.
There is an argument that the ability of any GP to charge patients through a private company hinges on the nature and definition of the 'contractor'. For GMS, a contractor is defined as a person or entity that can hold a GMS contract.
Part 2, Regulation 5 of the GMS regulations, defines who can hold a GMS contract as:
- a medical practitioner
- two or more persons practising in a partnership
- a company limited by shares.
It has been proposed that any one or more individuals falling outside these groups, could arguably be entitled to charge a fee or remuneration for the provision of any treatment. In other words, GPs would have to be - or be set up as - a different entity from the one that holds the contract.
For example, single handed doctors could arguably set up a company or partnership that could charge patients. However, as we have seen, the regulations prohibit these entities or groups of people from charging their NHS patients for private services and it is not clear that providing services in this way would avoid them successfully.
Private GP referrals to the NHS
Section 8.2 of the Department of Health’s 'Guidance on NHS patients who wish to pay for additional private care' (2009) is still extant and was not altered by the Health and Social Care Act 2012.
The Department of Health clarified that "patients who have chosen to pay privately for an element of their care are entitled to receive NHS diagnostic tests free of charge as long as they are eligible. A referral by a private GP for an NHS diagnostic test should not be any different from an NHS GP referral".
Private GPs are free to refer their patients to the NHS in the same way as NHS GPs can refer their patients to the private sector.
The 1986 handbook 'Management of private practice in health service hospitals in England and Wales', which sets out the key principles that govern private practice in the NHS, clearly states:
"All fully registered general medical practitioners may refer patients to NHS hospitals irrespective of whether they are treating them under the NHS or privately."
This principle is also underpinned in paragraph four of the handbook: that patients wishing to be treated privately are entitled to the same NHS services as any other patient with the same clinical need. However, it should always remain clear whether the patient is receiving private or NHS care.
Wholly private GPs cannot issue NHS prescriptions but can only provide private prescriptions.
NHS GPs on the other hand, cannot charge NHS patients for prescriptions but can charge private patients who are not on their NHS list for prescriptions. Additionally, NHS GPs cannot issue NHS prescriptions to private patients.
However, it should be noted that there are certain prescriptions that NHS GPs can charge their registered NHS patients for.
These are covered under Part 5, Regulation 25 of the National Health Service (General Medical Services contracts) Regulations 2015 and include, for example, malarial chemoprophylaxis and medicines that may be required to treat an illness once the patient is abroad.
Patients who are on a course of treatment requiring an expensive course of drugs are more likely to opt for NHS prescriptions. As such, some patients might have two GPs – an NHS and a private GP to keep the management of their care cost effective.