As a result, practices could find themselves in breach of contract if they try to drop the work at a future date.
The GPC has found that there is a risk that services being carried out for free could become part of practices’ ‘custom and practice’. This would mean they are reclassified as essential services with practices facing legal action if they stop carrying out the work.
Dr Laurence Buckman, GPC deputy chairman, told GP: ‘We have got a good idea that if you are working for nothing then you are making it part of your custom and practice. But, as yet, there is no legal position on this and it has not been tested in law.’
The concerns add further weight to BMA calls for practices to consider dropping work in protest over the GMS pay freeze.
A number of one-year directed enhanced services (DESs) ceased from 1 April across the UK, and have not yet been replaced. In Wales, all DESs ceased from that date. In Scotland and Northern Ireland, GPs are waiting for details of future DES funding.
In England, DESs, including that covering Choose and Book, are no longer nationally funded. Some LMCs have agreed local deals with primary care organisations (PCOs), but GPs in areas where this has not occurred have either stopped or are providing work for free.
Dr Buckman said the lack of legal clarity made it vital that practices ‘seriously consider whether to carry on such work’.
‘If they carry on they might find themselves in a difficult position in terms of their contract,’ he said.
GPC member and Birmingham LMC executive secretary Dr Robert Morley said: ‘There has until now been a feeling that if it’s not in the contract you don’t have to do it, but at the moment there is uncertainty.’
Dr Tim Kimber, deputy chairman of West Sussex LMC, said he quit using Choose and Book immediately after the DES expired because he feared it would become an essential service.
His LMC has recently agreed a deal under which practices will be paid for using Choose and Book, but he warned that practices that were not being paid should stop using the system now rather than face any legal problem in the future.
Chief executive of Berkshire, Buckinghamshire and Oxfordshire LMCs Dr Paul Roblin admitted this was a ‘grey area’ but, so far, legal disputes has been avoided. He said: ‘This is something that primary care teams need to be aware of.’
But Dr Peter Joliffe, Devon LMC chief officer, said: ‘When a contract runs out, the GPs and PCOs come to an agreement either to renew it or ensure they are being paid until something is sorted out.
‘It is wrong to do the work for free and it is outrageous for trusts to turn round and say that it is now part of the global sum.’
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