Lawyers are understood to have warned the BMA that GPs could be open to legal action if they handed out pledge cards inviting patients to opt out of being referred to privately run services.
BMA members had hoped the cards would empower clinical commissioning groups (CCGs) to stop purchasing services from private providers.
But a BMA council member who asked not to be named said that yesterday's council meeting was presented with the legal advice. The council member said: ‘If GPs are members of CCGs and it appeared that they were skewing patient choice, they could potentially be open to legal challenges from private companies.’
Another council member, who also asked not to be named, revealed the policy would now be dropped, at least in its current form. ‘The council accepted that legal advice and it is not going ahead,’ the member said.
BMA council member and Whitley Bay GP Dr George Rae said: ‘We are doctors, not lawyers, so we have to make sure our policies are watertight. We were alerted to the potential dangers which include the competition law and other legal issues which could land on the doorstep of GP practices.
'You cannot put your membership at risk but the BMA can look at alternative approaches. The pledge card is something we support in principle. What the BMA council is doing is looking at alternatives. This year’s BMA annual representative meeting in June instructed the BMA to keep campaigning against the Health and Social Care Act.’
BMA council member and south London GP Dr Louise Irvine, who missed the meeting because she was ill, said: ‘I am disappointed because I had hoped we could find a way round it that is legally acceptable.’
In an interview with GP earlier this month BMA chairman Dr Mark Porter said the association was still 'looking at a variety of things' to show its opposition to the Health Act, including the pledge card proposal to raise awareness of the 'increasing commercial penetration of the NHS'.
A BMA spokesman said: ‘Although the principles and motivations behind the pledge card idea were supported at BMA Council, there were concerns about some elements of the practicalities. Council decided to explore alternative strategies that enable these principles to be pursued as part of planned activities to inform and engage the public in tackling the many damaging aspects of the government's NHS reforms.’
The DH widened the scope of its any qualified provider (AQP) policy to 39 service areas last month, meaning that private and voluntary providers can apply to go on an approved list for patients to choose from.
Providers will only be able to be refused by commissioners if they reject the price offered, refuse to agree to local standards or to comply with pathways and referral thresholds, or if they fail quality standards.