Can the DoH really do anything it likes?

So the DoH can't do anything it likes when it comes to GPs after all?

Such was the underlying message of the High Court judgment in the judicial review on GP pensions.

The case had been brought by the BMA to challenge the decision in 2006 by the then health secretary Patricia Hewitt to cap the 'dynamising figure' for GP pensions over the period 2003/6.

This meant that gains in average GP earnings would not be reflected in pension payments beyond a certain level, contrary to the agreed workings of the NHS Pension Scheme at that time.

However, the High Court judgment said that the secretary of state did not have the power to impose a retrospective cap because doctors had signed their contracts in expectation of certain pay and pension levels.

The issue of whether higher GP pensions would divert cash from patient care was not relevant because the DoH's decision breached the GMS contract.

The judgment is good news for all GPs working during that period and especially for those who retired in recent years and who could now be in line for as much as £10,000 extra income per year and a significant boost to their lump sums.

But it should also be regarded as a wider opportunity for the BMA. Are there other DoH decisions that could be regarded as having been imposed retrospectively? Is there anything in the DES or out-of-hours decisions that could be reviewed?

The judgment also has the potential to strengthen the BMA's hand in some negotiations. For example, ministers are regularly heard to grumble that 'GPs do not reinvest a large enough proportion of their profits in their practices'. This is generally followed by murmurings about forcing the issue or clawing back profits.

However, if this High Court judgment stands, it would appear very difficult for the DoH to impose any earnings cap or reinvestment target explicitly based on what it believed GPs should have done in the earlier years of the GMS contract.

The decision in this judicial review has been a surprise for many, especially those used to the 'we say it, you lump it' attitude to negotiations which has been a feature of DoH policy-making of late.

It was probably even more of a surprise to those in Whitehall who assumed they could do anything in the name of patient care. What it should have finally taught them is that they should have looked a lot more closely at how general practice worked during the new GMS negotiations.

Whether they take on these lessons for future negotiations is anyone's guess.

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