Disclosure of GP earnings – how enforceable is it?

The law¹ doesn't actually "bite" directly on the GPs. Instead, it obliges ICBs to include a provision in the GMS or PMS contract, saying the practice must disclose if any of the partners or staff have NHS earnings above a certain level (£159,000 in the current financial year). The BMA have made the point that, if the ICB has not served a contract variation which makes this change, then the obligation doesn't arise. So a practice which has not received the relevant contract variations has no obligation to disclose.

Let's assume that eventually the correct variation notices do get served. Will the requirement to disclose be enforced, and if so – how and by whom? In practice, I question whether the average ICB will be interested in enforcing this sort of contract term. Many would argue that getting GPs to disclose their earnings is a political ploy; will many ICBs see it as a high priority to try and deliver that?

It may be that NHSEI will require ICBs to enforce this term of the GMS/PMS contract. But how will NHSEI know in the first place what a GP is earning? Probably the best source of information lies in the GPs' pension returns – but that would not give NHSEI a full picture anyway because not every GP will be in the pension scheme. More importantly, NHSEI does not have direct access to those pension returns – there would be considerable difficulties with their accessing information which has been returned to NHS Pensions for a different purpose. Will NHSEI want to risk breaching GDPR to obtain what is incomplete information anyway? NHSEI will be aware that if it does not obtain the information legitimately and lawfully, then it will have great difficulty in using that information to enforce the obligation to disclose.

However if NHSEI/the ICB does somehow (legitimately) discover that a GP has earnt above the threshold without disclosing it, and does want to do something about it – what could they do?

Their first step would be to serve a breach notice under paragraph 70 of Schedule 3 of the GMS Regs 2015 (or para 61 of Schedule 2 of the PMS Regs). The ICB would have to serve the notice on the practice, giving it 28 days to remedy the breach (i.e. publish the information). Practices may well decide to do nothing until they receive such a notice, i.e. rather than publishing now, they will wait to be threatened with further action before doing so. If the points I am making above are correct, that point may well never come.

What happens if such a notice is received and the practice still doesn't want to disclose? It would entitle the ICB to terminate (although there are arguments one could use to frustrate this which are beyond the scope of this article). But would an ICB really be willing to terminate a GMS contract, causing itself serious difficulties, over such an issue? It is a lot of "political capital" to spend on an issue which does not affect patient care (which is, after all, the ICB's main concern). One does not want to be too casual about threats of termination of a PMS/GMS contract, but I would suggest that an ICB would be unlikely to want to do this unless it already had some other reason for wanting to get rid of the practice.

If the ICB is unwilling to terminate, it could instead try imposing contract sanctions, either:

• Under para 70(8) of Schedule 3 of the GMS Regs (para 61(8) of Schedule 2 of the PMS Regs) which provides that if there is a continued breach after service of notice then the ICB may "withhold or deduct monies which would otherwise be payable under the contract in respect of the obligation which is the subject matter of the default". However, as practices aren't paid to disclose this information in the first place, I don’t think this helps the ICB; and/or
• under para 72 of Schedule 3 of the GMS Regs (para 63 of Schedule 2 of the PMS Regs), which gives ICBs certain other powers, including the power to withhold payment. However, the action taken by the ICB must be "appropriate and proportionate" (para 72(2) of GMS/para63(2) of PMS) – what sanction is going to be "proportionate" to a breach which does not cost the ICB any money, and has no impact on patient care? There is much scope for argument there.

Given all that uncertainty and difficulty, I would have thought that most ICBs would be reluctant to pick the fight in the first place.

I would not recommend practices push things so far that they end up having the arguments above – which would inevitably be stressful, would harm relations with the ICB, and would of course involve incurring legal fees. However, the above demonstrates that for those who decide not to disclose there are plenty of "jumping off points" where they can relent, and disclose, before their PMS/GMS contract gets terminated. With that in mind, I expect that some practices will decide to wait at the very least until they receive a breach notice before disclosing, in the (quite reasonable) hope that that point is never reached.

Whilst one would not go so far as to recommend someone ignores a provision in their contract, or deliberately breaches it. It is of course up to each practice to take their own view of the risks based on their own circumstances and we at VWV would be happy to discuss matters further on a case-by-case basis.

^{1 The relevant legislation sits in regulations 27A and 27B of the NHS (General Medical Services Contracts) Regulations 2015 and 21A and 21B of the NHS (Personal Medical Services Agreements) Regulations 2015.}

^{*The views expressed are the author’s and not ICAEW’s.}