PMS
Termination by notice – The ‘Crouch’ judgement and its effect on PMS
On the morning of Wednesday 10 December 2008, the judgment of the Court of Appeal (The Master of the Rolls, Dyson LJ, Jackson LJ) was handed down in the case of Crouch v South Birmingham PCT. Lockharts were instructed by The British Dental Association who were an interested party in these proceedings.
The subject matter of the case concerned a clause within a PDS Agreement, which purported to allow the PCT to terminate the PDS Agreement by notice and without cause. The clause related to paragraph 67 of Schedule 3 to the NHS PDS Agreement Regulations 2005:
67 (1) The Relevant Body may terminate the agreement by serving notice in writing on the contractor at any time.
(2) Where a notice is served pursuant to sub-paragraph (1), the agreement shall terminate on the date provided for in the agreement.
The case had previously been argued before the Administrative Court when Mr Justice Collins found in favour of Mr Crouch. The Secretary of State appealed the decision reached by the Administrative Court and the Appeal was dismissed.
The Court of Appeal held that the right to terminate by notice under PDS is not a “standalone” right and is merely a procedural provision to be read in conjunction with the provisions in the Agreement where the PCT has a specified cause (under the Regulations) to terminate (untrue information, grounds of suitability, etc).
Applicability to PMS Agreements
The PDS Agreement Regulations 2005 and the PMS Agreement Regulations 2004 are very similar in construction and paragraph 67 of the PDS Regulations very closely mirrors paragraph 100 of the PMS Regulations. We believe the judgment in Crouch is very likely to be applicable to termination under a PMS arrangement.
Consequently, PMS practices, who are currently being threatened with the termination of their PMS Agreements under a ‘termination by notice’ provision may be able to reject such a notice on the grounds that the PCT may be attempting to act beyond its powers in terminating the PMS Agreement.
Since the judgement in the case is not directly applicable with regard to PMS, we would advise practices to seek legal advice immediately if the PCT is attempting to terminate their PMS Agreement without cause. Our involvement in, and understanding of, the Crouch case makes us well placed to advise practices on this issue and we would be very pleased to advise in further detail. In the first instance, please contact Mark Jarvis, one of our solicitors who specialises in PMS. He can be contacted by email at mj@lockharts.co.uk or on 0207 383 7111.
Please also note that the Lockharts’ PMS Agreement (clauses 498 and 499) is compliant with the PMS Regulations and with the meaning as clarified in the Crouch case. Other PMS Agreements may have different notice provisions and these will need to be analysed in each case.APMS
PCTs can enter APMS contracts for the provision of primary medical services with any individual or organisation that meets the provider conditions set out in the APMS Directions.
Lockharts can prepare APMS contracts between PCTs and providers which set out the arrangements between the parties in compliance with the Directions.
We are happy to advise on all aspects of APMS, including:
SPMS
Where a provider will not be providing essential services or does not have a registered list of patients, then there is flexibility in the PMS Regulations for an agreement for Specialist medical provider services (SPMS).
Lockharts can prepare tailored SPMS Agreements between PCTs and providers and can advise providers on their draft SPMS Agreements.
