What is the public health services contract?
The public health services contract is a non-mandatory contract that local authorities - as commissioners - can use for commissioning public health services.
From April 2013, local authorities will have responsibility for commissioning public health Local Enhanced Services. These services will be called "community based services". Local authorities can choose to use the public health services contract to commission community based services from GP practices.
Who publishes the public health services contract?
The contract has been published by the Department of Health and is available on the DH website with accompanying guidance. The public health services contract was developed by the Department of Health, local government and public health professionals specifically for commissioning public health services.
The guidance states that the contract is non-mandatory. What does this mean in practice?
The contract was developed to provide a consistent, standard position across services and local authorities. However, local authorities do not have to use it and it can be varied to reflect local circumstances. The contract contains a specific Section C to allow for local variation.
It is worth pointing out that apart from the obligation to comply with funding recommendations set out in NICE Technical Appraisals, local authorities are not under a statutory duty to regard NICE guidance. However this requirement has been included in the contract as a matter of good clinical practice.
If the public health services contract is not used, it is likely that the NHS Standard Contract, which is being used for the commissioning of other community based services, will be used instead. Find out details about the NHS Standard Contract. Please also be aware that a local authority might also propose using its own existing contract documentation, which should be reviewed on a case by case basis.
What is the likely duration of these contracts?
The duration of the contract is for local determination. However, for reasons of service delivery, cost effectiveness and efficiency, it is expected that the majority of contracts will be around three years in duration.
Can we agree our own dispute resolution clause?
Yes. Whilst clause B30 and Appendix M of the standard contract set out a process for dispute resolution, the parties can agree an alternative process for dispute resolution where locally required which must be set out in Section C (Special Conditions).
The dispute resolution process set out in Appendix M has three stages: negotiation, mediation and then Expert Determination if the Dispute still remains unresolved. The decision of the Expert is final and binding. Appendix M sets out suggested time periods for each stage of the process but these can be amended locally.
What will happen to existing public health LES contracts?
Primary Care Trusts (PCTs) should be liaising with local authorities regarding the transfer of these services. PCTs should notify local authorities of all public health LESs due to expire prior to March 2013.
Section A (the particulars) of the standard contact also includes an entire contract clause. It is likely that some of the existing public health contracts, currently operated by PCTs, will transfer to the relevant local authority under a Transfer Scheme. Clause A6 makes it clear that the public health contract constitutes the entire agreement between the parties in relation to the services being commissioned.
However, it recognises that similar services may have transferred to a local authority by virtue of a Transfer Scheme and therefore recognises that the public health contract will not be the definitive contract as it is likely that these commissioned services will continue with their present NHS contracts unless and until the services are provided under the public health contract.
What should GP practices and LMCs do now?
The public health services contract was developed by the Department of Health, local government and public health professionals specifically for commissioning public health services.
However there may be additions to the contract or sections that need to be removed due to local circumstances. GP practices and LMCs should therefore seek legal advice on the content of contracts before they are signed, especially around any warranties or indemnities requested by the local authority.
The level of detail within the template service specification of the contract should be agreed locally and be proportionate to the value of the contract and size of the service being commissioned.
By way of example, the following optional clauses (which are set out in Section C of the public health services contract) may need to be negotiated and agreed on a case by case basis:
- Extending the Duration of the Contract
- Limitation of Liability (alternative clause)
- Insurance (alternative clause)
- Contract Binding on Successors
- Data Protection (alternative clause)
- Human Rights
- Scrutiny Board
- Health and Safety
- Disclosure and Barring Service
- Branding Policy
- Conflicts of Interest
- Intellectual Property
- Change In Control
Are there any clauses of the standard contract which I should be negotiating or asking to be removed?
Yes. For ease of reference, we have split out the contract into the sections as they appear in the document. All clause and paragraph references are to those set out in the standard template.
Section A – The Particulars
This is on very standard terms, so no amendments are required to this section.
Section B – General Terms and Conditions
Clause B8.9 – we would recommend the removal of the wording 'or any other agreement between the Parties' as this might have the undesired effect of affecting payments under core contracts.
Clause B.9.3(b) – we would suggest including the following wording to the end of sub-paragraph (b) '...at the cost of the Authority'. Whilst it is reasonable for the Authority to suggest reasonable improvements to the way the services are provided, the provider has to be mindful of any increased costs of undertaking these improvements, bearing in mind that the Authority are also requesting a decrease in the price paid for the services following implementation of any improvements.
Clause B14.2 – the Provider should be mindful of any adverse cost implications of providing this information and seek appropriate assurances from the LA that any costs of producing the information in different formats to that usually used will be covered by them.
Clause B25.1 – we would suggest seeking a reciprocal indemnity from the LA and would also include the words 'or indirectly' at line 5 following the word 'directly'.
Clause B32.4 – the period for remedying a breach should be reduced from 40 days to 30.
Clause B33.5 – a specific cross reference must be made to clause B32.4 here, so that the words in brackets read as follows: '(except any termination under clauses B32.1, B32.3 or B32.4 (Termination))', to avoid the Provider having to pay the costs of an alternative provider where termination has occurred because of a LA breach.
Section C – Special Terms and Conditions
Clause C1.1 – the Provider's agreement to any extension should be sought (the Provider might not want to extent). At the moment, it is solely in the LA's discretion when it comes to a potential extension. A joint discussion and agreement to extend would be a fairer approach to adopt.
Clause C3.1 – Provider's will need to check that any insurance figures agreed comply with the terms of their policies. GP practices and LMCs should familiarise themselves with the content of the contract and read the Department of Health's accompanying guidance.
Will income earned through public health contracts with local authorities be superannuable?
Yes. Changes are being made the NHS Pension Scheme, effective from 1 April 2013, so that LES contracts transferred from PCTs to local authorities as Public Health England activity will remain pensionable in the NHS Pension Scheme from 1 April 2013. Public health services commissioned by local authorities from GP practices after 1 April 2013 will be superannuable. These arrangements will be reviewed before April 2014 once the transition arrangements for the transfer of LES contracts have concluded.
The above is subject to the general (Superannuation Act 1972) rule that an individual can only be a member of one public service pension scheme in respect or service or remuneration for the same employment or post. So, for example, if a doctor was a member of the Local Government Pension Scheme in respect of public health related work they could not also be a member of the NHS Pension Scheme for that work.