Doctors Frequently Asked Questions about Private Practice

• Can a patient move between NHS and private practice for the treatment of one condition?

The Department of Health recently launched a new guidance on NHS patients seeking private medical care. The guidance states that where a patient opts to pay for private care, they remain entitled to NHS services and these services may not be withdrawn. However patients selecting private and NHS treatment should ensure the private care is carried out at different time and place. Private and NHS care should remain as separate as possible.

Clinicians should ensure the transfer between private and NHS care is carried out in a coordinated way to guarantee continuity of care and effective risk management are in place at all times.

1. May NHS consultants advise patients about the option of being seen privately?

The Codes of Conduct for private practice in England, Scotland and Wales explicitly state that consultants should not, in the course of their NHS duties, initiate discussions about providing private services for NHS patients. It is not acceptable, therefore, for doctors to suggest to patients who are placed on a waiting list for NHS treatment that the treatment could be provided quicker on a private basis. It is also inappropriate for consultants to raise the issue of private practice obliquely, for example by handing the patient a business card containing the address of both the NHS hospital and the doctors private consulting rooms or adding the private clinic address to the NHS letterhead.

The BMA believes that an exception to this general rule is where treatment is available but is not funded within the NHS. In such circumstances, patients should be advised of this option in order to make an informed choice about treatment. However, clinicians should exhaust all reasonable avenues for securing NHS funding before suggesting a patients only option is to pay for care privately.

2. How should consultants respond to questions from NHS patients about being treated privately?

Consultants should not spend time discussing private treatment with patients during NHS consultations. When patients raise questions about the availability of private treatment it is advised that consultants refer enquiries to their private secretaries. Consultants may, however, briefly answer factual questions about the availability of private treatment. A consultant in this position should make a note on the medical record, and inform that patients GP, that the patient has requested information about private treatment. Patients should be informed of the option of seeing a different doctor for private treatment and some patients may wish to discuss the options with their GP before making a decision.

3. How should consultants respond to patient requests for a second opinion in the private sector?

Requests for second opinions should generally be complied with unless there are good reasons to justify a refusal. Patients are entitled to seek a second opinion on a private basis and the treating NHS consultant should facilitate this where possible or liaise with the patients GP about arranging a private referral. The same general principles apply to private patients seeking a second opinion.

4.Can consultants involve NHS staff in the treatment of private patients?

Consultants may not use NHS staff for the provision of private services without the agreement of their NHS employer.

5. Can a private doctor advertise their private practice with business cards that include his/she NHS status?

This should not pose a problem, as it is factual information that is being provided to private patients. The business cards, however, should not be given to the doctors NHS patients, as this could be perceived as using NHS patients to promote private practice.

6. Can a private practice GP use sick notes/notepaper supplied by their PCT, with the NHS logo?

If the GP is seeing private patients an NHS logo would cause confusion and therefore it would be best for the GP to write sick notes on their own notepaper.

7. If a doctor is undertaking NHS work, but also doing private practice work, are they required to register with the Healthcare Commission?

The Healthcare Commission has recently revised its guidance after BMA pressure, such that, if a medical practitioner has commitments in the NHS then they are not required to register their private practice work with the Commission.

The Commission has written to all registered private doctors who may be affected by the change in policy, and those in the process of applying for registration, outlining the new advice and asking them to write to the Commission if they believe that they should be exempt from registration. Those who have registered unnecessarily with the Commission will be de-registered and refunded all the relevant fees.

8. Can an employee (consultant) compete with their employer (NHS Trust) when contracting their services directly to NHS commissioners?

Consultants need to be careful about how they proceed in these circumstances. Although there may be nothing explicit in the consultants contract of employment to prevent such activity, there is an implied term that it is the employees duty to serve his employer faithfully. As such, if an employee were to establish a rival business in competition with his employer then they would be acting against the interest of his or her employers business. We would advise any doctors who are considering contracting for services to provide their NHS employer with a full declaration of outside business interests in accordance with paragraph 1 of schedule 12 of the consultants contract, and to consult with the BMAs guidance Consultants working in competition with NHS employers:

http://www.bma.org.uk/ap.nsf/Content/WorkinginnewnhsJanuary2006?OpenDocument&Highlight=2,competitive,nhs

9. What are the underlying principles to consider when drafting a contract for private patients?

A contract or letter of engagement for private patients should clarify:

What the fees are and exactly what they cover.

Who will be involved in patient care i.e. any other doctors and health professionals.

Whether the patient (or their insurer) will be billed separately for their services, or as part of an overall package. If the patient is paying through a third-party insurer, the contract should state that insurers do not always cover 100% of the fees and that the patient will be liable to pay any shortfall.

Terms of business, such as payment methods, when payment is required, interest charges on late payments (for example, where payment is not made within two months), and the clinics cancellation policy.

It may also be helpful to explain that all doctors involved will be registered with the GMC and accountable to the GMC for their professional practice and conduct.

10.Should a private consultant, consulting in a hospital feel under pressure to refer patients to the hospital as inpatients?

Some consultants practising privileges with private hospitals state that the consultant who uses their consulting rooms and facilities will admit the patient to that private hospital for treatment. If, however, the consultant has not formally agreed to this then they are entitled to send patients to the facility of their choice. Consultants have an overriding professional duty to treat patients in a hospital with the appropriate facilities and equipment.

11.Is it acceptable to mix NHS and Private care when prescribing drugs? I.e. where a GP is asked to prescribe drugs that a private consultant has recommended and is monitoring?

In many situations NHS general practitioners issue prescriptions for drugs needed for a treatment or assessment carried out in a private hospital. Even though an individual opts for private treatment or assessment they are still entitled to NHS services. If the patients GP considers the medication to be clinically necessary, the terms of service would require the GP to prescribe that medication on the NHS, even if the assessment from which that need was identified was undertaken in the private sector. However, the doctor who prescribes the medication must accept full clinical responsibility for that decision and therefore the GP must be satisfied that this is the correct medication and dose for the patient and that he or she is willing to accept any ongoing responsibility for monitoring the drug regime.

12. What are the BMAs recommended rates for private practice work?

The Office of Fair Trading has prevented the BMA from providing advice to consultants on suggested fees for private medical procedures. Doctors are therefore responsible for determining their own charges. The BMA advises that charges to patients should be agreed before treatment is carried out and that consultants advise their insured patients to check their level of cover and whether there will be a shortfall between their fee and the sum the insurer will reimburse.

A practitioner may find it helpful to contact the main insurance companies for information on the benefit maxima in their specialty. The BMA advises consultants to set their fees taking into their time, expertise, training and expenses.

13. Can a private medical practitioner consult with colleagues about setting fees?
Practitioners are prohibited from discussing fee rates with their colleagues, unless they are in a legally binding partnership or a limited company. This is due to competition law which prevents an anti-competitive behaviour and price fixing between entities. A legally set up partnership or limited company constitutes one entity and therefore its members can agree common fees.

14. What action can a private doctor take if a patient is failing to pay the agreed fees?

It is advised that all fees are agreed in writing prior to treatment. If the payment of fees cannot be achieved amicably, then doctors may wish to pursue the debt through a debt collection agency or the Small Claims Court.

15. Can a GP provide enhanced services (e.g. minor surgery) to their patients privately, if these are not
provided by the PCT?

Private practice is significantly restricted under the new GMS contract, and the GMS and PMS contract regulations do not allow practices to charge their own NHS registered patients privately.

Regulation 24 of The National Health Service (General Medical Services Contracts) Regulations 2004 states:

(2) The contractor shall not, either itself or through any other person, demand or accept from any patient of its a fee or other remuneration, for its own or anothers benefit, for-

(a) The provision of any treatment whether under the contract or otherwise; or

(b) Any prescription or repeatable prescription for any drug, medicine or appliance, except in the circumstances set out in Schedule 5.

Schedule 5 includes, for example, travel vaccinations and road traffic accident reports.

There are some services that are not available on the NHS, or only in very limited circumstances, for instance cosmetic procedures, some advanced dermatology procedures and osteopathy. GPs can set up private practice to provide these services, although they must not be treating their practices registered patients. Where GPs wish to start such a private practice, and they are aware that some of their own patients have requested the service, we would advise that they write to the Director of Primary Care Services in their Primary Care Trust to seek agreement to provide the service to any patient as it is not available on the NHS.

If however, a practice wishes to provide services that are available on the NHS, but which are not commissioned from the PCT, then it is not possible to charge patients for these services.

16. When a doctor works as an independent private practitioner who should be contacted to arrange an appraisal? Does the appraiser need to be of the same specialty as the appraisee?

The Private Practice Committee has guidance on independent sector appraisals for self-employed doctors, who practice in the private sector. Regarding the appraiser, the guidance states that the appraiser must be a registered medical practitioner who will normally, although not necessarily, be from the same specialty as the doctor to be appraised. Appraisers should have received training in appraisal skills and need to be quality assured, either from doing appraiser work in the NHS or through a Royal College or quality approved scheme, such as the Independent Doctors Forum.

17. What steps should a doctor take when considering setting up in private practice?

Any doctor fully registered with the General Medical Council is entitled to set up in private practice. When considering setting up in private practice a doctor should:

Observe the guidance set out in the General Medical Councils collection of booklets Duties of a Doctor, which set out the responsibilities of doctors and constraints on them, particularly with regard to the advertising of their services.

Ascertain whether or not they will be required to register with the Healthcare Commission.

Ensure they have an adequate level of indemnity cover from one of the medical defence bodies.

Identify suitable premises for their private practice work, the British Medical Journal and other medical journals frequently advertise potential premises. Health and Safety regulations at the premises will then need to be taken into consideration.

Make arrangements to contact health insurers to ensure their qualifications and experience are acceptable to them, to enable the doctor to treat individuals with private health insurance policies.

Take appropriate advice from solicitors and accountants, as there are a host of financial and legal implications that will need to be addressed before setting up practice.

18. Are any special requirements needed for the private prescribing of controlled drugs?

There has been a change in private prescribing arrangements following the Shipman Inquiry, which came into effect on 1 April 2006. This change makes it clear that doctors will need to get a specific private prescription pad from their local PCT and a unique identifier number from the Prescription Pricing Authority (PPA). The PPA can be contacted on 0191 232 5371.

19. Can a NHS GP charge for issuing a private prescription?

NHS GPs can write a private prescription for patients, which they may wish to do particularly in relation to drugs not available through the Drug Tariff. However, NHS GPs cannot charge for providing such a prescription. The only occasion when a doctor can charge for a private prescription is in relation to travel overseas.

20. What is the complaints procedure for patients undergoing treatment from a private GP?

Private treatment is not covered by the NHS complaints procedure and there is no legal requirement for one to be in place. The complaint should be made to the GP in the first instance.. Depending on the nature of the complaint, patients may complain to the GMC if they feel that the standard of care is far below what might have been expected, or the Healthcare Commission. Alternatively, the patient may go to court to sue the practice if they feel they have been damaged by negligent treatment. If a GP is aware of a potential complaint they should consult their medical defence organisation.

21. If a GP is removed from their PCT performer list, is he/she prevented from undertaking private practice?
If a GP is removed from their PCT performed list, they are still entitled to undertake private practice.

22. Can the BMA negotiate with BUPA on their benefit maximum reimbursement levels paid to consultants?
Due to competition law, the BMA is unable to negotiate fees with BUPA to increase pricing of procedures, as this would amount to an association of undertakings (i.e. in this case, an association of the individual doctor members who do BUPA work) negotiating to raise prices and this amounts to price-fixing, which is a breach of competition law. Our advice to members is that they charge at their own rate.

23. Is there a maximum percentage income NHS doctors can earn from private practice?

There is no maximum % income consultants can earn from private practice. Under the 2003 consultant contract, there is no compulsion to undertake extra NHS programmed activities (PAs) and no restriction on private practice earnings. However pay progression criteria is dependent upon consultants accepting an extra paid PA, if offered, before undertaking private work. If already working 11 PAs (or equivalent) there is no requirement to undertake any more work. Under the old consultant contract if gross income from private practice exceeds 10% of NHS income for 2 consecutive years then they will have to go under a maximum part time contract and receive only 10/11th of their NHS salary.

For GPs, there is a 10% limit on private earning within the practice premises. If a GP earns more than 10% private earnings from his/her practices premises then the cost or notional rent will be abated accordingly. This is laid down in the National Health Service General Medical Services Premises Costs (England) Directions 2004 and their equivalent in Scotland, Wales and Northern Ireland.

24. When is it appropriate for a doctor undertaking private practice to hold the title Medical Director?

The term medical director is a common term used in the private sector. It is primarily used for the chief physician who is in charge of a clinic/treatment centre or hospital. There are no specific rules covering titles used in the private sector except for the GMC guidelines that doctors do not mislead patients. Therefore doctors can determine their own job titles, but titles should ideally be credible and easily recognised for business purposes. It should be noted however that in the NHS the term medical director relates to a defined role profile.

25. Can an NHS consultant undertake private practice whilst on maternity leave?

There is nothing in the consultants contract Terms and Conditions, or the private practice code that states private practice cannot be undertaken whilst on maternity leave. We would therefore advise that provided the doctor complies with the normal private practice regulations and keeps their employer informed, then undertaking some private practice whilst on maternity leave is acceptable.

26. Are private practitioners protected against age discrimination?

Since April 2002 the Independent Healthcare Commission (previously the National Care Standards Commission) and now the Healthcare Commission has required independent hospitals to demonstrate that they have effective mechanisms in place for reviewing their standards of clinical care and maintaining good practice. This resulted in the Independent Healthcare Association (now the Independent Healthcare Advisory Services) drawing up a model policy on practising privileges and a letter of agreement for practising privileges.

This policy has been widely circulated throughout the independent sector and are being widely used. These documents set out the terms for consultants practising in independent hospitals, and states:

?? Where a Practitioner reaches the age of 65 the Medical Advisory Committee may recommend that that Practitioner’s privileges be subject to annual review by the Medical Advisory Committee and to the Practitioners agreement to comply with any restrictions on practice advised by the Medical Advisory Committee.

?? Practising privileges will normally cease in all cases on the Practitioner attaining the age of 70.

However, the implementation of the Employment Equality (Age) Regulations in October 2006 made it unlawful to discriminate either directly or indirectly against employees because of their age, although there may be limited circumstances when discrimination may be lawful such as where there is a genuine occupational requirement that a person must be of a certain age. Whether or not a private practitioner is covered by these Regulations will depend on the doctors working arrangements. Private practice doctors who are personally performing work under a contract would be protected by the new age discrimination law. However, if there is no ‘work’ contract, and just a recognition relationship, then it is unlikely for this situation to be covered by the new age discrimination law.

27. Do patients always need GP referral before seeing a private consultant?

It is not strictly necessary for a patient to have a referral from their GP before they can see a private consultant. Some private consultants will accept patients without GP referral.

However, many private consultants are reluctant to accept patients who refuse to inform their GP about planned private treatment for the following reasons:

i. the private consultant will remain responsible for future treatment of the condition until the patient is officially handed back to the GP

ii. private consultants who accept patients without GP referral are wholly dependant on the patient giving them all the facts about their condition, health and prior treatment. This could potentially lead to patients misinforming private consultants or omitting important information such as allergies to certain drugs etc. Obviously this could have serious implications for the private consultant should anything go wrong.

28. Can a private GP practice charge another private practice for the transferral of medical records?

The Data Protection Act (DPA) governs the processing of sensitive personal data such as medical records and there is no provision within this Act which permits (or forbids) the charging of a fee for the transfer of data.

We understand therefore that there is nothing to stop you charging fees for the transfer of records from one non-NHS practice to another although we would not advise for you to charge a fee when a straightforward transfer of records is involved. However, if the transfer of records involves some additional work in the form of report writing, photocopying etc then charging a fee would be appropriate. Any fee charged should realistically reflect the skills, time and resources required to complete the transferral of medical records.

The British Medical Association is not able to recommend an actual fee amount for the transferral of medical records.

Whilst you cannot insist on a reimbursement of charges under the DPA there is nothing to stop you coming to an agreement with the new practice as to the costs involved with delivering/ posting the records.

29. What are the steps to take in selling a private practice? Informing the patients.

It would be good practice for the doctor to inform his patients about the arrangements he is making. A reasonable period of notification would ensure the patients have ample time to find a new doctor if they wish.

Healthcare Commission

The doctor will also need to liaise with his Healthcare Commission assessor for guidance. They should be able to advise on steps to take. Essentially, if the doctor is selling his/her business, the new owner will need to register the business again with HC.

Financial and legal advice

The doctor should also seek financial and legal advice to cover the administrative, financial and legal implications of selling a private practice.

It might also be helpful for the doctor to speak to colleagues who have sold their practice and ask them to share their experiences.

30. How can a doctor introduce card payments facility in a private practice?

The doctor needs to follow the checklist below:

1. Apply to a bank for a merchant service this is a term for the service that allows you to swipe credit and debit cards.

2. Negotiate the costs and arrange for the payment of set-up costs.

3. Install a PDQ machine this is a term used for the machine that is used to swipe a debit or credit card

4. At this point, the doctor can start accepting card payments.

31. What are the professional issues to consider when setting up a Limited Liability Company?
Informing your Medical Defence Organisation (MDO)

You should ensure that your MDO is aware that you will be working through a company.

Health and safety

If your practice will involve the employment of staff, you must ensure that you follow the correct health and safety standards.

With regard to patients or visitors on to the premises, you could be held liable for any injury sustained as a result of inadequate premises or equipment.

Your local authority will be able to advise you on any planning restrictions or Health and Safety regulations that apply with regard to your practise premises.

Registration with the Healthcare Commission

Please contact the Healthcare Commission to check whether you will need to register your business.

Good Medical Practice Financial and Commercial dealings

Please read pages 31 to 33 which set out the principles to follow to ensure you are carrying your duty in an open and honest way and that you are acting in the best interest of your patients when providing treatment.

We would also encourage you to read the GMC supplement to ‘Good medical practice’ which is ‘Conflict of interest’.

For more information, please go to the GMCs website

http://www.gmc-uk.org/guidance/good_medical_practice/index.asp