GPC England has been contacted by a number of LMCs, expressing concern about ICBs insisting on GP practices delivering services that the practices were no longer able or willing to provide for operational reasons. GPC England has sought expert legal advice on the legal position for practices working under a standard GMS contract reflecting the current GMS Regulations.

The legal advice considered whether ICBs can determine what services fall within the definition of ‘essential services’ in the standard GMS contract and on that basis demand that GP practices provide those services.

The advice is clear that it is not within ICBs’ powers to make such determinations

On the contrary, GP practices are empowered by the terms of their contracts to decide, subject to certain limitations, which services they provide within the practice and which services they will refer to other service providers. In any dispute about whether a practice must provide a certain service, the question is not, as some LMCs have asked, ‘Does the service fall within the definition of ‘essential services’?’, but rather, ‘Does the GMS contract require the practice to provide that service within the practice as opposed to by referral?’.

The Regulations

LMCs should refer to the latest available version of the regulations.

Essential services

Regulation 17(4) defines essential services as ‘services required for the management of a contractor’s registered patients’ etc. who are ‘ill’ etc. 

‘Management’ includes two separate categories of activity set out in regulation 17(5): 

a)    offering consultation and examination, and diagnosis, and 
b)    ‘making available’ treatment or further investigation ‘including’ referral. 

There is a clear distinction between these two categories. The first category includes services the GP must offer and provide in-house. The second category includes any services that follow, which may be provided in-house or by referring the patient to other NHS providers, depending on the practice. 

Individual practices have a choice as to whether treatment or further investigation should be provided in-house or following referral.

The concluding words of regulation 17(4) provide that ‘management’ services must be ‘delivered in the manner determined by the contractor’s practice in discussion with the patient’. This gives practices a measure of discretion as to how services are provided. When read alongside regulation 17(5)(b), it can only mean – with regard to further investigations and treatment after initial consultation – that it is for individual practices to decide, in discussion with patients, how such further services are to be delivered. For example, where a practice can provide such further services in-house, it may nevertheless be preferable for the patient to be referred to receive the services elsewhere.

Regulation 17 also specifies that ‘essential services’ include the ‘provision of appropriate ongoing treatment and care’, including ‘advice’ and ‘referral for services’. While a patient may be referred for services to provide ongoing treatment, regulation 17(6A) specifies five categories of services which must be provided in-house: 

• cervical screening services,
• child health surveillance services,
• contraceptive services,
• maternity medical services, and,
• vaccine and immunisation services. (This list was added to the GMS Regulations by amending regulations in 2021) 

Summary

Beyond providing consultation, examination and diagnosis, and providing the services specified in regulation 17(6A), GP Practices providing their services under the Standard GMS Contract, may refer a patient for treatment or further investigation to another NHS contracted provider. GP Practices are entitled to decide what additional services, if any, they provide in-house, and there is nothing in the contract preventing a GP from changing what it offers in-house in the future.

Support for practices

Template Letter

Where ICBs are pressuring practices to provide certain services in-house, arguing that it is a contractual obligation to do so because either (a) those service are part of essential services or (b) there is an implied term in the contract due to custom and practice, practices may be advised to set out their position in writing to the ICB. A draft letter for practices to use when responding to ICBs’ demands is attached.