Opting for NHS body or non-NHS body status as a GP practice

  • GP contracts

GMS contract holders have the same access to judicial review of the adjudicator’s decisions, regardless of whether they hold them as NHS contracts or non-NHS contracts.

Practices have the option of electing to be an NHS body or a non-NHS body when entering into a contract.

Londonwide LMCs have traditionally advised practices to opt for non-NHS body status as this allows them to pursue remedy via the civil court.

This advice was reviewed in light of the case of R (Sashi Shashikanth) v NHS Litigation Authority, NHS Commissioning Board (aka NHS England), the salient points of which were as follows:

  • The claimant was a GP (whose practice holds non-NHS body status) who challenged the termination of his contract by the Second Defendant, NHS England. In order to terminate the contract, NHS England relied on the GP’s alleged breach of the GMS contract.
  • The First Defendant was the NHS Litigation Authority (NHSLA) (now known as NHS Resolution [NHSR]) which acted as contractual adjudicator, upholding NHS England’s decision to terminate the contract under the contract’s dispute resolution process.
  • The court was required to decide whether the decision by the NHSLA to uphold NHS England’s termination of the contract could be challenged through judicial review in circumstances where the practice had opted to be a non-NHS body. There is no doubt that an NHS body could have pursued a challenge by judicial review in similar circumstances.
  • Initially the court decided that a non-NHS body, such as the GP in this case, was bound by the decision of the NHSLA even though that decision was based on an error of law, however this was the subject of a successful appeal (Shashikanth, R (On the Application Of) v NHS Litigation Authority & Anor ([2024] EWCA Civ 1477)) in December 2024 hence the option of judicial review remains open to practices who opt to be non-NHS bodies.

In light of the successful appeal, the advice to opt for non-NHS body status stands as it allows for practice to pursue remedy via the civil court and the option of judicial review remains open in the context of a disputed contract termination that has been upheld via the NHS Resolution Primary Care Appeals process.