Last month, GP revealed that 41% of the groups had taken on PCT budgets.
Londonwide LMCs guidance published earlier this year said: ‘Local arrangements will need to be set out in clear, written agreements, as all practices will be required to take part in commissioning.’
The guidance also made clear that commissioning groups should operate as PCT subcommittees until they were able to obtain statutory status.
This should extend PCT indemnity to commissioning groups but Londonwide LMCs warned 'it should not be taken for granted that liability is covered’.
Responses from 101 PCTs under the Freedom of Information Act revealed that not all GP commissioners had been offered protection.
NHS West Sussex devolved its enhanced services budget to the Coastal West Sussex (CWS) Federation commissioning group. This equates to £8.2 million and comprises 1% of the total budgeted spend on the CWS population.
NHS West Sussex said that the budget had been devolved to the managing director of the federation who is also a member of the PCT board. Therefore he is ultimately responsible for the devolved budget.
NHS West Sussex said that there was no written agreement with the commissioning group because all commissioning decisions would be made the PCT board.
GPC chairman Dr Laurence Buckman said the arrangement ‘sounds very strange’.
‘I hope they have checked the legality with the DoH,’ Dr Buckman said
NHS Cumbria said it did not have a written agreement with a group working as a subcommittee of the PCT. The group is ‘responsible’ for 97% of its PCT budget.
NHS Cumbria said that because the chief executive of the PCT has remained ultimately responsible for the budget, liability should not be an issue.
NHS Luton has devolved £47,520,981 to a group working as a subcommittee of the PCT but it confirmed that it does not have a written agreement with that group.
NHS Telford and Wrekin has devolved indicative budgets which equate to 75% of the PCT budget, to a commissioning group and PCT subcommittee without having a written agreement in place.
NHS Telford and Wrekin said that because the commissioning group had only taken on an indicative budget and it is not yet a legal entity, ‘the accountability for this budget remains with the PCT’.
NHS Bournemouth and Poole has devolved £3 million, which equates to 0.5% of the PCT budget, to a subcommittee of the PCT but a draft of a written agreement ‘is currently seeking approval from the PCT board.’
Medical director of Londonwide LMCs Dr Tony Grewal said he would advise commissioning groups to seek a written agreement from the PCT to outline their commissioning responsibility.
‘There needs to be written authorisation which should include conformation of indemnification,’ Dr Grewal said.
Dr Grewal, warned that without a written agreement, individual GPs could be at risk from legal challenge.
‘Were harm to come to a patient, due to a commissioning decision, or a decision not to commission, the GP as an individual GP would be very vulnerable,’ Dr Grewal warned.