This article is not peer-reviewed. You are advised to read this article in bits, according to which parts interest you. If you would like to engage constructively in some of the issues here, I can easily be reached on my twitter thread @legalaware_coys.
“Ready Mix Concrete”
Part of the strategy employed by agents in the media in convincing the general public that a new privatised NHS is not vastly different from the NHS prior to 1 April 2013 has been to emphasise that GPs have “always been businessmen”. GPs are, however, clearly not businessmen in that you don’t see adverts for them on Google or the internet at large. They do not, as yet, spend time advertising in local newspapers or other media, such as local radio. It is a dangerous proposition, however, to suggest that they are businessmen rather than primarily professional clinicians, who are concerned more about how they can minimise spending in their budget, or how they could make a surplus. They are not, as such, directly selling anything to patients.
I asked Dr David Wrigley (@DavidGWrigley) about this media curiosity of ‘GPs as businessmen’. David replied to me as follows,
“Hi Shibley, It comes up all the time. In public debates I have had with MPs and radio/TV interviews it is a question that is always levelled at GPs. Usually it is from those who are keen to promote private sector encroachment onto the NHS. I always say GPs are totally different to the private sector. We work in a community for a whole career and invest in the local people and the practice. We are self employed and make an income from the NHS but we don’t move on when the going gets tough – as the private sector do. The breast PIP scandal shows what the private sector does when the profits dry up – they move on and wash their hands of the patients and leave the NHS to pick up the pieces.I try and keep getting the message across and hope you can help to do so too!”
Looking at the precise legal status of a GP is possibly more productive. Self-employed GPs have been held to be “workers” for the purposes of the Employments Right Act (1996). It had been widely reported that the term that “GP-led companies” is a myth (for example here). The issue is that self-employed GPs are not individually operating as as private limited companies; if they were, they would have shareholders and be obligated as directors to ensure success of the company, and generate a profit consistent with the Companies Act (2006). In the absence even of any formal agreement, they can indeed be a traditional partnership, but a traditional partnership lacks limited liability (link here).
“It seems likely that the medical profession is set for a more federated future and smaller practices in particular may wish to explore opportunities to either merge with other practices or to enter into co-operative or federated arrangements to bring together specialist expertise, share overhead resources and take advantage of economies of scale without totally sacrificing their autonomy. The demands on general practice look set to increase as the trend for care is transferred from hospital to the community. Simultaneously, the increasing commercialisation of the medical profession is likely to inspire more dynamic management structures and possibly greater separation of healthcare provision and management. Opportunities will arise for all natures of practice, but it will be down to each individual practice to harness those which will allow them to reap the greatest benefits for their business and patients. In this environment, investing time to consider the optimum form of legal entity to take forward a practice is crucial and well worth making. “
The trickiest situation currently, in working out the employment status of a GP, is in the GP working under an out-of-hours contract. Such a GP had his claim ‘struck out’ for not being an employee ab initio (link here):
“An out-of-hours general practitioner (GP) who argued that he was victimised for making a public interest disclosure (PID) has had his compensation claim ruled out by the Employment Appeal Tribunal (EAT) on the basis that he was in business on his own account and was neither a worker nor an employee within the meaning of the Employment Rights Act 1996.”
The explanation is very interesting:
“In ruling that his role within the charity did not bring him within the definition of worker or employee under the act, the EAT noted that he also worked for other out-of-hours services, took responsibility for his own tax and national insurance matters and had entered into an agreement with the charity which stated unequivocally that he was self-employed.
The GP contended that he had an overarching contract with the charity and was employed during each separate shift he worked. However, the EAT accepted the charity’s arguments that practitioners on its books were under no obligation to work shifts and that it was not obliged to offer work to any particular GP. Concluding that the GP ‘was in business on his own account’, the EAT ruled that the charity had insufficient control over his work and there was insufficient mutuality of obligation to give rise to an employment relationship.”
“Mutuality of obligations” is all about whether there an obligation on the company to provide work and for the individual to perform work when given it; if this mutuality is not present, an employment relationship will not exist. Traditionally it has been held that if an individual were entitled to send a substitute to perform his duties, this would usually be enough to demonstrate that the contract is not a contract of employment. In “Ready-Mixed Concrete” (case description here), the claimant drove a concrete mixing lorry for the respondent. He had to drive the lorry exclusively for the respondent, he wore the respondent’s uniform and he agreed to submit to all reasonable orders ‘as if he were an employee’. Notwithstanding this, it was held that he was an independent contractor and not an employee. One of the critical features was that he was not required to drive the lorry personally. He could employ a substitute driver to do so. [Note that this lack of personal service would also mean that he would not be held to be a worker under the worker definition.]
The unfortunate description of “GP as businessmen”, arguably encourages the public to consider that they are driven by profit. This is a problem, when you add in three further strands of argument.
- Firstly, that the NHS is able to make £2.4 bn “surplus”, but this is not put in back into frontline care by the Treasury, but is used to ‘balance the books’ for an ever-worsening UK economy.
- Secondly, it has been widely reported that there are GPs on “clinical commissioning groups”, and there are concerns about conflicts-of-interest where the commissioner and commissioned might be one-in-the-same (link here).
- Thirdly, the introduction of CCGs has not made doctors feel more involved in commissioning decisions, a new survey has revealed (link here). Research by Pulse magazine found that out of 303 doctors questioned more than half (55%) said they do not feel any more involved in commissioning services now than they did under PCTs. Only 36% of GPs surveyed said the introduction of CCGs had made them feel more involved in commissioning decisions.
The argument that “GPs have always been businessmen”, mainly advanced by people who are in favour of the “Reforms”, is extremely harmful potentially to the reputation of healthcare professionals, as the General Medical Council’s own code of conduct ‘Duties of a Doctor’ makes it very clear that: “You must make the care of your patient your first concern“. Any suggestion that this priority is displaced threatens to undermine the very heart of the doctor-patient relationship, and this could be very destructive for the new privatised NHS, if left unchallenged.
