Court of Appeal decision on primary care contract disputes: a reminder for commissioners

The Appeal in Shashikanth primarily concerned the question of whether adjudication of disputes between GPs and NHS commissioners is amenable to judicial review but also provided an important reminder in connection with contract variations. 

The case related to a GP practice that had their NHS General Medical Services (GMS) contract terminated for a failure to co-operate with an alternate provider when it came to facilitating access for their patients to network related services (they themselves were not signed up to the Network Direct Enhanced Services (DES)). 

This decision was upheld by the NHS Litigation Authority (NHSLA) which provides a service adjudicating such disputes under powers conferred by the NHS Act 2006 and supporting regulations. The NHSLA dismissed the GP’s claim and upheld the termination of the GP’s GMS contract. 

The GP contractor subsequently sought to judicially review both the termination notices and the NHSLA’s decision on the basis that it was unlawful because the contractor’s contract had not been varied to incorporate the relatively new obligation concerning the co-operation with other providers. A key strand to the ensuing dispute was whether a decision by NHSLA could be judicially reviewed.

The Court of Appeal concluded that a primary care provider – and in this case a GP practice - can seek to judicially review a decision of the NHSLA. 

Furthermore, the Court of Appeal reiterated the view of an earlier decision that the NHS Litigation Authority misinterpreted the law and that the underlying contractual obligation that formed the basis upon which the commissioner terminated simply did not apply to the contractor. 

This decision will be of interest to Integrated Care Boards (ICBs) managing contractual disputes with primary care providers.

You can read the full decision, R (Shashikanth) v NHS Litigation Authority and NHS Commissioning Board (NHS England) [2024] here. 

Key takeaways 

ICBs will need to:

• Make sure that they vary core contracts as and when changes are notified from the centre and that they do so in accordance with the terms of the relevant core contract; and 
• Ensure that when reviewing a GP contractor’s compliance with their core contract that they consider compliance against the specific contract (plus any variations) that the relevant contractor has in place. Contract management steps can only be taken by reference to the obligations that apply in any given case.

If you’d like to discuss any of the issues raised here, please contact Rob Day.

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