As featured in Practice Business magazine, 1st March 2013.
From April 2013, Clinical Commissioning Groups (CCGs) will be responsible for designing the local health provisions in England, by commissioning or buying health care and services. All GP practices across England must ensure they have signed up to their local CCG by 31 March 2013. While the CCG model suggests that each partner must sign up individually, in reality, many practices are putting forward just one representative to sign on their behalf.
Katharine Mellor, primary care lead partner at business law firm DWF, considers the issues that can arise when nominating a sole representative and how these can be alleviated.
The importance of being involved
All practices should be inputting into the constitutions being formulated for CCGs. Although there is a model currently in place, this can be tailored in line with negotiations with the practices. However, due to the implementation timetable, in many instances the constitution model will be prepared by shadow CCG boards and simply presented for practices to sign. Any practices that wish to be involved in the designing of the constitution and have not already provided feedback should contact their shadow CCG board assuming that they know who is on that board and in default the local medical committee.
Multiple signatories or a nominated representative?
While all individual GPs can take part in the development of the CCG consultation, practically it can be more efficient to deal with this at a practice level. The NHS Commissioning Board is flexible in how practices sign up – whether each partner signs the full document, or if the practice puts forward a nominated representative with a signed indication of support from all the partners.
As such, each practice needs to decide whether partners will sign up individually, or if one person will be nominated as the authorised representative. This is an important decision as the nominee will be responsible for negotiating the constitution, becoming the voice of the practice in CCG operational matters, and compelling the partners to follow what has been agreed at CCG level.
In many instances, when choosing a nominated representative a majority vote of partners will constitute proper authority, though this can vary depending upon the stipulations of any partnership agreement. Disputes are likely to arise however if there is no formal agreement in place, as concerns can creep in regarding how much authority has been given to the representative, and what they can commit the practice to.
Disputes and the CCG
Any disputes arising around the nomination of a representative should be dealt with using the practice's internal dispute resolution procedure, according to guidance offered by the British Medical Association. However, not all practices have such a procedure in place, and arguably all practices would be better served by relying on an up-to-date partnership agreement, that is fit for purpose in light of the emerging changes within the NHS, including CCGs, Care Quality Commission and revalidation.
It is important to remember that the CCG is entitled to assume a practice representative is duly authorised, and it is the practice's responsibility to ensure they are.
Partnership agreements and nominated representatives
While there may be an existing partnership agreement in place, it may no longer be suitable in light of CCGs. Or it might have ended, if a partner has retired but the agreement contains no express provision of continuance, or if a new partner has joined but there has been no written addition to the agreement.
In these circumstances there is no binding agreement, and the practice is in the same position as if there had never been an agreement – it is a 'partnership at will'. While perfectly legal, this is governed only by the Partnership Act 1890, and disputes can only be resolved in court – a situation which could prove costly if the actions of a nominated representative are disputed by a partner.
As such, practices are best advised to put a new partnership agreement in place, which is signed and dated, and includes:
How the partnership will choose its representative for the CCG, and how they will be removed or amendedWhat type of actions can the representative agree to without consulting the whole partnershipHow many partners are required to form a majority in order to give authority to proceedEnsuring the agreement can survive exits and entries of partners at the same time.
Meeting the deadline
Putting such an agreement in place before 31 March 2013 could be a challenge for many busy practices. If an agreement can't be reached by this date, each practice would be well advised to set out in signed writing that each partner has:
Seen, reviewed and understands the proposed CCG constitutionAccepts itAuthorises the representative to sign it on behalf of the partnership.
Only then can the representative know that they have the support of the partners, there isn't a partnership dispute brewing, or that he might have to raise queries over the constitution in the future.
Whichever path a practice decides to take – individual responsibility, a partnership agreement or signed writing – all practices must have signed up to their local CCG by the 31 March 2013.