Flasz & Ors v Havering Primary Care Trust, [2011] EWHC 1487 (Admin) | High Court of England and Wales, Trial, Law, casemine.com (2023)

1. These two cases are known together because they have common problems. The Claimants are all general practitioners who have entered into Personal Medical Services Agreements ('PMS Agreements') with their Primary Care Trusts ('PCT'). In 2010, the PCTs unilaterally amended the treaties to include provisions allowing six months' notice. The PCTs were in response to the Secretary of Health's regulation of March 3, 2010, which became effective on April 1, 2010. Through this process, applicants seek to challenge the Secretary of Health's authority to make Regulations, Primary Medical Services (Miscellaneous Amendments) Regulations 2010 SI 2010 No 578 (“the 2010 Regulations”). The Claimants claim that the legislation invoked by the Secretary of State, the National Health Service Act 2006 ('the 2006 Act') s.94, did not allow him to make such regulations. In addition, the Plaintiffs allege that prior to the signing of the PMS contracts in 2004, statements by the then Secretary of State led them to believe that the contracts would be permanent. The 2010 Regulations and the resulting Treaty Amendments belied their reasonable expectations, and consequently the Regulations and the Treaty Amendments were illegal. Dr Flasz and the other plaintiffs in the Havering case also allege that their PCT made similar statements and this is another reason why their contracts could not legally be amended to simply terminate contracts in the PCT with 6 months' notice.

legal context

2. Prior to 1997, all GPs provided their services to primary care organizations under terms and in return for fees and subsidies negotiated nationally by the British Medical Association on behalf of doctors. In addition to the statutory retirement age, contracts could only be terminated under certain conditions. The National Health Service (Primary Care) Act 1997 led to a new form of contractual arrangement for the provision of primary health care. These pilot PMS arrangements were negotiated locally between the provider and the NHS worker. However, they were subject to a general framework defined by instructions from the Secretary of State. From the outset, the legislation prohibited the Secretary of State from approving PMS contracts that did not contain a clause allowing a plan participant (other than the nominee) to withdraw from the plan if they so desired. See Section 5 of the 1997 Act. Act. In due course, the Secretary of State instructed that PMS agreements for pilot programs must give both the Provider and the Delegator the opportunity to terminate upon 6 months' notice.

3. The Health and Welfare (Health and Community Standards) Act 2003 introduced a number of new contract forms whereby PCTs could request care. In these cases, contracts for the provision of personal medical services and contracts for the provision of general medical services (“GMS contracts”) are relevant. GMS Contracts continued the system in the pre-1997 model, with tariffs and concessions negotiated nationally. Even after 1997 most GPs remained with this programme. They were governed by a separate set of rules, General Medical Services Regulations 2004 SI 2004 No. 291

4. Contracts (or agreements) for personal health services should be a continuation of pilot schemes, but an enduring feature of the NHS landscape. I'll have to examine a little more closely later what the Secretary of State said in 2003 about PMS agreements.

5. Like the PMS pilots, the PMS agreements were negotiated locally. However, as before, a national structure was created. Rather than doing so in the form of instructions, the framework was contained in the National Health Service Regulations (Personal Medical Services Arrangements) 2004 SI 2004 No 627 (“the 2004 Regulations”). These regulations were made (among other powers) under Section 28E of the National Health Service Act of 1977. Regulation 18 required all PMS contracts to include the terms set out in Schedule 5 of the Regulations. There were exceptions, but these are irrelevant for present purposes. Paragraph 98 of Annex 5 provided for the modification of agreements. They can be reached amicably, but if the contract needs to be amended to comply with a law or regulation, the amendment can be made by the competent authority unilaterally notifying the contractor. Paragraphs 100 to 111 deal with termination. There is some dispute between the parties as to whether these termination clauses (ie those of the 2004 Rules in their original form) would allow PCTs to terminate the contract simply by giving notice, but I need not resolve that issue.

6. The pilot PMS arrangements in effect when the new arrangements came into effect on 1 April 2004 continued but were subject to the 2004 Regulations; see General Medical Services and Personal Medical Services Transitional and Subsequent Provisions Regulations 2004 SI 2004 No. 865.

7. In 2006, the National Health Service Act 1977 was repealed and replaced by the National Health Service Act 2006. Since then, PMS arrangements are considered to be agreements under Section 92 of the 2006 Act and Regulations 2004 are treated as if they had been made in accordance with Section 94 of the 2006 Act, see National Health Service (Consequential Provisions) Act 2006 s.4 and Schedule 2, paragraph 1. Therefore, PMS agreements that the plaintiffs have with the defendants are examples of agreements under s.92.

8. The 2004 Regulations, including Schedule 5, have been amended from time to time, but the amendments referred to in these cases date from 2010. Regulation 10(9) of the 2010 Regulations added paragraph 100 of Schedule 5 to the 2004 Regulations In summary, o The rewording of Section 100 allowed the contractor or competent authority to terminate the contract at any time with no less than 6 months' notice. This is without prejudice to any other termination rights that the Contractor or Agent may have under the Contract.

factual connection

9. Dr Flasz is a GP based in Hornchurch, Essex. His practice was established in 1986. In 2003 he signed a PMS pilot contract for a period of 3 years with his local PCT, Havering. Chosen to remain on a PMS contract after April 1, 2004.

10. In March 2010, Havering sent Dr. However, on November 1, 2010, Havering's attorneys sent Dr. Flasz a new change notice, which Dr. Flasz intends to contest through its judicial review process. He will be joined by 18 other doctors with similar experiences. Their claim form was issued in Manchester on 18 January 2011. Havering PCT was named as the sole defendant, but a few days later a copy of the claim form was sent by the plaintiffs' solicitors to the Department of Health, who requested its interest in participating.

11. To date, Havering has made no attempt to terminate the contracts by notifying Dr. terminate Flasz or any of the other doctors in this process, although she is considering making it subject to consultation.

12. Dr. Karim Jan-Mohamed is a GP in Greenwich. His practice was established in 2000. In 2000, he signed a pilot PMS contract with the Greenwich PCT. (In contrast to Dr. Flasz's contract with Havering, this one was not limited in time, but indefinite). He also continued the PMS arrangements in a contract dated April 1, 2004 (though signed by him a few months later). In May 2010, Greenwich attempted to negotiate a treaty amendment to bring it in line with the 2010 changes to regulations, but Dr. On 29 November 2010, Greenwich gave notice that it deemed it necessary to unilaterally amend the contract to comply with the 2010 regulations. Jan Mohamed. The application form was issued on February 25, 2011. The Secretary of State was identified as an interested party.

13. Meanwhile, on 18th February 2011, HHJ Andrew Gilbart QC, Associate Judge of the High Court, dealt with Havering's claim form. He ordered a cumulative hearing. He agreed to the Foreign Minister's request to become a stakeholder. He ordered the assignment of the claim to London.

14. On April 7, 2011, HHJ Waksman QC, Associate Judge of the High Court, ordered the Havering and Greenwich cases to be heard jointly.

15. Consequently, my hearing focused on whether any of the plaintiffs should be granted permission to seek judicial review and, if granted, whether any of them were entitled to substantive relief.

16. The argument of legitimate expectations was not included in any of the complaint forms. The Plaintiffs indicated in their correspondence that they intended to seek permission to add this as a ground of objection and set out their arguments in their main argument. I advised the parties that I would hear arguments on this matter and, in the course of my trial, determine whether the plaintiffs should be allowed to change their reasoning to rely on this additional challenge.

17. The Defendants and the Secretary of State argued that the Plaintiffs' effective challenge concerned the validity of the Regulations in effect on April 1, 2010. This occurred outside the time period prescribed in CPR r.54.5 and authorization must be refused by this reason (beyond the grounds for appeal). The plaintiffs argued that the period would not begin to run until they had received effective notice of changes to their contracts. Alternatively, they requested an extension of the deadline for submitting their application forms. With no objection from the defendants or the Secretary of State, I said that I would make my decision on this matter at my trial as well.

Were the 2010 regulations ultra vires?

18. Section 94 of the 2006 Act reads:

"(1) The Secretary of State may regulate the provision of services in accordance with the provisions of Section 92.
(2) The Regulations shall include provisions for participants who are not Strategic Health Authorities to opt out of Section 92 agreements if they so choose.
(3) Regulations may, in particular,
(f) make provisions relating to the modification and termination of any agreement under Section 92.”

As I explained earlier, the PMS agreements that plaintiffs have with their PCTs are examples of "section 92 agreements". The Secretary of State has mandated that the roles of Strategic Health Authorities with regard to primary health care be performed by Primary Care Trusts - see Personal Medical Services Role Guidelines 2004 dated June 15, 2004.

19. The Plaintiffs argue that the effect of section 92(2) is to prevent the Secretary of State from making regulations allowing strategic health authorities or primary care funds to withdraw from Section 92 agreements simply because they do not want to. Only participants other than these bodies may be authorized by the charter to withdraw from agreements in this way.

20. In my opinion, these arguments are unfounded. Section 94(1) authorizes the Secretary of State to regulate the provision of services in accordance with the provisions of Section 92. It is broad. Section 94(3) contains a non-exhaustive list of subjects that regulations may cover. They contain provisions for terminating contracts under Section 92. That was the subject of this part of the 2010 Regulations. Section 94(2) has a different purpose. Urges the Secretary of State to include in its regulations a provision allowing participants other than health authorities to withdraw from the agreements, if they so wish, with 6 months' notice. The 2010 regulation fulfilled this obligation. They gave contractors (like the plaintiffs) a right of termination with a notice period of 6 months. Section 94(2) did not require the Secretary of State to grant a similar right of withdrawal to PCTs or other health authorities. However, this did not prevent the Secretary of State from including such a provision in its Rules of Procedure. In summary, Section 94(2) determines what needs to be included in the regulation. It is not specified what cannot be included.

21. At one point, Mr. Butler raised a separate challenge to the provisions of the 2010 Regulations. He noted that the Explanatory Notes to the Regulations described the amendments at issue in this case as "amendments to clarify provisions on termination by termination." ". Mr. Butler argued in his main argument that the notice provisions in the 2004 regulations had already been clarified by the Court of Appeal inCrouch v Secretary of Health [2008] EWCA Civ 1365; the 2010 amendments were inconsistent with the Court of Appeals decision; and that the Secretary of State, through the 2010 regulations, misinterpreted the meaning of the 2004 regulations.

22. Prudently, this was not an argument defended by Mr. Butler in the audience. The purpose of the regulation is the regulation; Past regulations are not to be interpreted. An explanation (to regulations or primary law) can help to show the context in which the legislative change was made and the harm it was intended to do.R(S) v South Yorkshire Police Commissioner [2004] 1 WLR2196in [4], but cannot contribute to the solution of the method chosen by the legislator to solve these problems. In this regard, the explanation tells us that the Secretary of State considered that the termination provisions needed clarification. To decide what action he proposed to resolve this, one has to look at the regulation itself. Whether the change is consistent with how the Court would have interpreted the 2004 regulations is wholly irrelevant. The Defendants and the Secretary of State disagreed that, prior to the 2010 amendment, the 2004 regulations prevented the Secretary of State from establishing the right of PCTs to terminate PMS contracts simply upon notice. I do not think it necessary for me to decide this question. A decision favorable to the Plaintiffs on this issue did not help them to demonstrate that the amendment was ultra vires.

23. Accordingly, I reject the complainants' challenge to the 2010 Rules. I believe it was within the legal authority of the Secretary of State to make them.

Was the Secretary of State prevented from making these regulations because his predecessor objected in 2003/2004?

24. The Requesters maintain that, prior to entering into their PMS agreements, the then Secretary of State declared on several occasions that these agreements would be permanent. This, they say, created a reasonable expectation that the agreements could not be terminated simply because the PCT had opted for a 6-month notice period. As the statements came from the Secretary of State, he (or his successors) could not introduce regulations requiring PCTs to amend their contracts to give PCTs that right of termination.

25. In 2003, the NHS tested PMS arrangements as an alternative to GMS. 38% of GPs had signed PMS agreements in April 2003. In a letter to GPs dated 5 June 2003, then Secretary of Health John Hutton said: "The Government is committed to PMS as an independent, permanent and voluntary". being 'abandoned'.

26. On September 24, 2003, Mr. Hutton addressed the National Primary Care Association ('NAPC') in which he reiterated the government's plans to make PMS a "permanent alternative". added,

“For those of you who are currently on a PMS contract, the pilot change need not affect the contract in any way. You can just continue if you wish. My letter [a reference to your June 5, 2003 letter] explained that there was no need to terminate your contract due to the new GMS contract. I know that many doubts have arisen about the "permanence" of TPM. PMS was "permanent" in every sense. However, I will ensure that we benefit from the necessary legislative changes to make PMS a traditional contract alternative.”

27. On October 15, 2003, Mr. Hutton wrote to the PMS GPs. He said,

"Many of you know that I spoke about the future of PMS at the NAPC conference on September 24. I took this opportunity to confirm that PMS will be a permanent and flexible local contract based on quality and patient needs."

His letter was then accompanied by instructions which read:

“The PMS will remain a permanent stand-alone option on site. The local PMS will complement the new national GMS agreements. Of the 1 “principal” legal status.
By all accounts, PMS has been "permanent" for some time. Legislative changes are needed to make the PMS an alternative to a conventional contract."

28. Mr. Ruck Keene, acting on behalf of the Secretary of State, did not dispute that his client could, in theory at least, be precluded from making regulations in certain circumstances where doing so would frustrate a legitimate expectation. However, it is a serious matter to limit a power that Parliament has given to the Minister of Foreign Affairs. There were a number of steps that needed to be implemented before candidates could be successful. The first of these was that plaintiffs had to present a clear and unambiguous account which the contested regulation denied. Butler accepted that this was the first condition he had to meet for his legitimate expectation argument to be valid.

29. I agree with Mr. Ruck Keene that the authors fall at this first hurdle. Mr. Hutton used the term "perpetual" in contrast to the pilot nature of the PMS agreements that existed prior to April 1, 2004. Locally negotiated PMS agreements would become a permanent alternative to nationally agreed GMS contracts. Mr. Hutton did not say the individual PMS contracts would be permanent.

30. I must turn in a moment to the argument of the plaintiffs' legitimate expectations based on representations made by Havering PCT or its representatives. But these representations (such as they were) cannot concern the Secretary of State. They were not made with the actual or apparent authority of the Secretary of State, as would be required if the Secretary of State were to accept responsibility for statements made by someone else.R (Bloggs 61) gegen Secretary of State for the Department of the Interior [2003] 1 WLR 2724CA in [38]. Plaintiffs do not allege that this was the case.

31. If necessary, Mr. Ruck Keene reportedly developed further arguments as to why the Foreign Secretary was not prevented from making the 2010 Regulations based on the legitimate expectation argument. But it wasn't necessary. That part of the plaintiffs' claim fails anyway.

Was Havering barred from amending PMS agreements under the 2010 Regulations because of a legitimate expectation?

32. Dr. Flasz and the other plaintiffs in Havering's suit argue that their PCT also made representations that the PMS contracts would be permanent. Mr. Butler claims on his behalf that, for that reason, Havering could not legally amend the Treaties, even if the 2010 regulations were intra vires. There is no suggestion that such statements were made by or on behalf of Greenwich, so in his case this argument is not made on behalf of Dr. Jan-Mohamed presented.

33. In his first testimony, Dr. Flasz had a contract with GMS in 2002 that guaranteed his safety as long as he maintained their customary standards of care. Prior to signing what was then the PMS pilot contract, he held discussions with an external consultant, Mr. Maingott, a Havering PCT representative. according to dr glare,

"Mr Maingott explained to me that the PMS contract is as secure as the GMS contract, but additional funds are available under the new contract to improve the practice, including hiring additional staff."
In March 2004, Dr. Flasz a variation of his PMS pilot contract. It contained a paragraph that said:
As of April 1, 2004, the PMS pilot project will be permanent.
Please note that with the introduction of the GMS contract and the permanent regulation for PMS, the existing rights of individual PMS general practitioners to return to the GMS will end. Instead, there is a new right outlined in the national PMS guidelines to transfer the entire PMS contract to a GMS contract.”

34. Dr. Akwenuke is another GP whose practice had a PMS rider contract with Havering PCT. His testimony states that the PCT emphasized that the PMS contract is as secure as the GMS contract. She says she assumed her contract would only be terminated in accordance with the 2004 regulation and the contract, which became indefinite. In an email dated October 28, 2009, Dr. Similar flash. Other Havering physicians testified along the same lines.

35. In my opinion, Ms Maurici's assertion, on behalf of Havering, that those accounts are not sufficiently clear and unambiguous to support an argument of legitimate expectations has considerable merit. The diversion agreement that Dr. Flasz used the word "permanent", but in context this must be contrasted with the pilot nature of the agreement, which he was modifying or replacing. Additionally, the PMS pilot contract that Dr. Flasz only had 3 years with Havering (from 2003 to 2006). This change can also be seen as a revocation of this deadline. Comments that PMS contracts are as secure as GMS contracts come a little closer to what applicants need to prove, but remain unclear as to exactly what was said or when. The opinion of Dr. Akwenuke and Dr. Flasz that the agreements could only be terminated under the 2004 regulations was correct. However, the regulation must be seen as a whole. Paragraph 98 of Annex 5 to these regulations recognized that the legal order was not static. If amended, the PCT could unilaterally change the arrangements it has made to bring them in line with the amended regulations. This change mechanism existed in 2004 and Havering invoked it. Physicians can reasonably expect their PCT contracts to include the minimum terms required by the 2004 regulations, as those regulations have been in effect from time to time. But this expectation was respected and not disappointed by the events that occurred.

36. However, even if Havering's plaintiffs were able to overcome that first hurdle, their legitimate expectations argument would have to deal with another difficulty. A pledge or pledge to act differently does not release a public body from a legal obligation. As the Court of Appeals inR v Secretary of State for Education and Employment ex parte Begbie [2000] 1 WLR115on p. 125 "Every expectation must yield to the provisions of the Statute by which the Secretary of State must act." Simon Brown LJ made the same pointR v Devon County Council ex parte Baker [1995] 1 Todo IS 73, 88-89 when he said (with my emphasis):

“These various authorities show that the claimant's right will only be established if there is a clear and unambiguous account on which he can reasonably rely. So the trustee or other public body is bound by equitable representation, except in so far as it is merely a promise or obligation as to how its powers would be exercised and is inconsistent with the statutory duties imposed on it.” (This passage was quoted and accepted by the Court of Appeal inR gegen North and East Devon Health Authority ex parte Coughlan [2001] 1QB 213em [73]).

37. Mr. Maurici points out that Section 92(2) of the 2006 Act requires that a SMP agreement 'shall comply with the provisions of Section 94'. The 2010 Regulations were issued pursuant to Section 94. Similarly, Regulation 18 of the 2004 Regulations provides that a PMS contract must contain the terms set out in Schedule 5 to these Regulations, subject to minor exceptions. The 2010 regulation was to amend paragraph 100 of Annex 5 to give the PCT and panel physicians the right to terminate the contract with 6 months' notice.

38. Thus, Mr. Maurici argues that even if Havering had made a clear and unequivocal statement that the PMS contracts would be open, he had no choice but to comply with the primary and secondary law requirements for the contracts to change them in accordance with the Regulation of 2010.

39. Mr. Butler argued that the situation was not so simple. Annex 5 of the 2004 Regulations, paragraph 98, deals with amending SMP contracts. Subparagraph (2) allows a PCT to unilaterally amend the Convention as follows:

"(2) In addition to the special provision in § 109, the competent authority may amend the contract without the contractor's consent if
(a) reasonably believes that it is necessary to amend the Agreement to comply with the law, any regulation made pursuant to law, or any direction given by the Secretary of State pursuant to law; AND
(b) notify the Contractor in writing of the terms of the proposed change and the effective date of the change.
and, where reasonably practicable, the effective date of the proposed amendment will be not less than 14 days after the date on which the notice under paragraph (b) was sent to the Contractor.

40. Mr. Butler argued that if Havering created a reasonable expectation that the PMS contracts were permanent and that the PCT could not terminate them simply upon notice, then legally it could not do so for the purposes of paragraph 98(2)(a). completed. reasonably convinced that it was necessary to amend the contract or that Havering would act improperly if he exercised his discretion to amend it in that way.

41. In my opinion, however, this misinterprets the working of paragraph 98. It is right that the PCT must pass judgment. As PMS contracts are negotiated locally, they do not share a common format, although they must at least contain the conditions set out in Schedule 5 of the 2004 Regulation. a certain PCT to amend its contracts. This would be the case if the treaties of this PCT already contained a corresponding provision. But it is this type of assessment that the PCT is required to make under paragraph 98(2). A report was submitted to the Havering PCT Executive Board meeting on 19 October 2010 which asked the right question, i.e. "do you believe the existing PMS arrangements need to be amended to comply with Regulation 18 of the 2004 Regulations ". The PCT was under no obligation (or authority) to decide whether the change required by the Regulation amendment was good, desirable, or even contrary to anything the PCT might have previously said. As I have shown, both primary law (Section 92(2) of the 2006 Act) and secondary law (Rule 18 of the 2004 Regulation) required the PCT to adapt its SMP contracts to the minimum provisions contained in the Regulation. Thus, if existing PCT treaties do not currently contain the term added or amended by the amending regulation, the PCT would need to exercise its power in paragraph 98 to bring its treaties into line with the requirements of the amending regulation.

42. Consequently, even if Havering had (which I do not accept) made a clear and unequivocal statement that the PMS contracts would never be amended to introduce a clause allowing the PCT to terminate them simply upon notice, Havering would have been obliged to issue his Deviation Notices to comply with your obligations under Section 92(2) of the 2006 Act and Regulation 18 of the 2004 Regulations.

challenges not pursued

43. I note that the claim forms contained arguments that went far beyond the issues I was considering. I didn't need to refer to her because Mr. Butler has made it clear that he is not stalking her. In particular, he did not attempt to argue that neither the Foreign Secretary nor the PCT defendants had behaved in a way that could be disputed as unreasonable by Wednesbury. Needless to say, this court only examines the legality of the decisions of the Secretary of State and the PCTs. As long as they act within the powers delegated to them by Parliament, the wisdom or propriety of those decisions cannot be subject to judicial review.

44. Found out that Greenwich (but not Havering) approved the new power to fire Dr. Jan-Mohamed exercised. dr Jan-Mohamed has not argued that this decision can be challenged in any way other than the allegations I have already raised. As far as I understand, although this terminates your PMS contract, you still have the option to switch to a GMS contract if you wish. This alternative may not be as financially attractive as your current PMS contract, but it can be of some help. When my draft decision was sent to the parties, Ms. Eleanor Gray QC, on behalf of Havering, questioned whether Dr. Jan-Mohamed to return to a GMS contract is contingent on his three-month notice period. He referred to rule 19. It is not necessary for me to comment on this matter for the purposes of this proceeding and this judgment should not be construed as such.


45. The arguments put forward by the Claimants were unsuccessful. In my view, the plaintiffs have not made a reasonably contentious case. Consequently, after examining its merits, I would deny all plaintiffs permission to seek judicial review.

46. ​​Under these circumstances, the other matters I have set aside become moot.

i) If and to the extent relevant, you would not have withheld consent just because of the delay. Although time was ticking since the 2010 Regulations took effect on April 1, 2010, there was some uncertainty as to whether the PCTs would issue (otherwise valid) Change Notices by November 2010. The delay was not excessive and neither neither the defendants nor the Secretary of State argued that any harm was suffered as a result of the delay.

ii) I considered the legitimate expectation argument, although it was not included in the original reasons. Neither the defendant nor the Secretary of State has argued that he or she was harmed as a result. As necessary, I grant authors permission to do so. However, this should not be taken as qualifying my opinion that the argument was unfounded and I decline permission to seek judicial review for this and other reasons given by the plaintiffs.

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