The following text is of a message I have distributed to all 51 NHS PCT Cluster Chief Executives, as advised by their respective SHAs. One of them is shortly to be out of a job, as Sir David Nicholson confirms, in the article referred to, that there are only 50 such positions recognised by the Department of Health.
You will have learned from Sir David Nicholson ("The Month" - 20 June 2011) that the bodies which you head will now have a future in the NHS, beyond 2013, as the "arms" of the National Commissioning Board, commissioning Primary Care services and overseeing the work of Clinical Commissioning Groups. As such, you will retain the vital role of ensuring that the principles of our National Health Service are maintained, as GPs focus on the needs of their particular patients and commissioning the services to meet them.
The core principle of the NHS is that providers are funded from the public purse, and cannot seek or receive payment from patients for NHS services. There are many who believe that this principle will not be maintained for long, due to increasing demand for services that the NHS "cannot afford". Patients will insist on their "right" to exercise choice, and so the principle of co-payment will have to be accepted. We have not yet formally reached that point, however there is one relatively small example of where this is happening. Many GPs are now breaching the terms of their NHS contracts, allegedly because they have chosen to acquire telephone systems that they cannot afford to pay for.
All use of 084 telephone numbers invokes a revenue sharing mechanism between the call originating telephone company and the company providing service on the number. The value of the "supplementary termination fee" is between 2p and 5p per minute, depending on the range within which the number falls. In effect, this is the amount of money transferred between the caller and the person called. Notwithstanding the vagaries of some unusual (if common) tariffs, this represents a "service charge" added to the call charge and applied to the financial benefit of the call recipient in some form. When a patient is calling their NHS GP on such a number, they are effectively incurring a charge for access to a NHS service (albeit that this is collected and distributed through third parties). This is nothing other than indirect co-payment.
In response to the DH consultation on use of 084 telephone numbers, the BMA GPC argued that "calls to NHS services should incur as low a charge as possible, but that this must be balanced by the quality of communications service that the patients are accessing". This argument in favour of co-payment for access to NHS services was rejected by the Department of Health. Directions and contract revisions were issued prohibiting use of telephone numbers that caused any patient to incur a greater cost than that of an equivalent call to a geographic number.
In its subsequent Guidance to members, the BMA GPC repeated the argument that had been rejected and advised its members on how they may circumvent the intention of the regulations. Practices were encouraged to offer a meaningless assurance from a highly interested party, who has no influence over the telephone tariffs of any provider, as if this represented evidence that the telephone number used by the practice somehow caused no patient to incur a greater charge - i.e. that it complied with the requirement.
A simple inspection of the tariffs of any provider of telephone services to patients shows that this assurance is simply false with respect to the actual terms of the requirement. A variety of different interpretations of the terms of the contract revisions have however been suggested, commonly with the false claim that they represent the view of the Department of Health. These generally suggest that there are additional qualifications that need to be applied to the simple drafting of the requirement, e.g. that it does not apply to calls from mobile phones or callers subscribed to call inclusive packages. The Department of Health has made it very clear that there are no additional qualifications in the standard terms approved by parliament.
One common suggestion is that the requirement applies only to those cases where the practice or its telephone system provider has direct control over the relative cost of calls to its 084 number as against that of an equivalent call to a geographic number. This suggestion is complete nonsense, there is no such case - the cost of all calls is set by the telephone company that originates the call. Some of BT's charges to particular ranges are regulated in absolute terms, but this regulation does not cover the relative cost of calls to geographic numbers, nor does it permit any variation in charging to be made by the user of the number or their agents.
I understand that many practices have followed the BMA advice. Some have claimed that the Department of Health has endorsed one particular provider of telephone systems to GPs as an authoritative source of information on the relative cost incurred by patients when calling 084 and geographic telephone numbers. Such an assertion is untrue. The BMA may believe whoever it wishes to believe, indeed the Department of Health has shown itself to have been misled on some points. No PCT can however be required to accept an obvious falsehood as the truth; it must make its own determination.
I understand that many primary care commissioning teams have been taken in by this deceit, denying the clear objective truth of published telephone tariffs in favour of a wholly unreliable statement by a highly interested commercial party to the arrangement. The BMA itself even points out to its members that the author cannot be held to account for its false claims about matters over which it has no control. In the GPC Guidance (foot of page 1) it suggests that the PCT would carry legal liability for failing to verify that a meaningless assurance had been used to indicate compliance, whereas the practice could plead ignorance. I cannot myself comment on the legal position, however this would seem to be a clear indication that the alleged "guarantee" is worthless.
The fact that there are still (at the time of writing) 1,262 GP surgeries in England using 084 telephone numbers long after the deadlines of 21 December 2010 and 31 March 2011, demonstrates a significant degree of failure on the part of PCTs. Some practices have even adopted new 084 numbers after receiving the contract variation notices.
I also understand that many PCTs have failed to recognise that every user of a 084 number has the simple option of migrating to a 03 number at any point during a contract for telephone service. This means that once it has been established that the number used is more expensive to call than an equivalent call to a geographic number, every practice has the option of changing its arrangements with its network telephone provider by migrating to a 03 number.
In many cases this is necessary so as to retain use of a local telephone system that relies on use of a non-geographic number. Such local systems are commonly funded through a seven year lease arrangement and need to be retained so as to avoid heavy early termination penalties. It is important to understand that any non-geographic number (03/080/084/087/09) would support the features of these systems equally well - all bar the first are prohibited from use by NHS providers. 03 is the only non-geographic range for which the cost of calling can be assured to be no greater than the cost of an equivalent call to a geographic number. (All 080 880 numbers, and 0800 numbers subject to special “free of charge” arrangements, may also be used – and the NHS Direct Special NHS Trust has been exceptionally allowed to continue its use of co-payment, despite the fact that it has the specially configured 0345 4647 number standing ready for use as an alternative.)
Since my last circular message, I have revised my database of cases to reflect the fact that primary care commissioning is still generally being undertaken at the PCT level, rather than for a Cluster. A table by PCT, with links to the detail and the relevant section of a map, is found here. A general description of the database, with links to other relevant briefings is found here. (A supplementary summary by Cluster is published here.)
Given that the core and remaining role of the organisation which you head is now confirmed as being that of maintaining the principles of the NHS, I am anxious to know what action you are taking, if belatedly, to ensure that the revised terms of the GMS contract and the Directions to NHS bodies are enforced.
If false and unverified assurances about the cost of calling have been accepted in the past, I must ask you to ensure that inadequate efforts to address the relevant requirements are now rejected as evidence of compliance. A practice can have no valid reason for retaining a 084 number, unless can show that genuine efforts to arrange immediate migration to a 03 number have failed - other than due to an unwillingness by the practice to bear the cost of its own telephone line and system. The issue of contract termination penalties does not arise. Talk Talk, the company responsible for the service to the vast majority of cases in my database, is known to allow such migration at any time during the term of a contract (without penalty) and the other providers are believed to follow similar policies.
Should you come upon cases where you believe that use of 084 numbers may be continued under the terms of the Directions and contract revisions, then please let me know. I do not believe that we are yet ready to accept sanctioned, provider-controlled co-payment in the NHS. If you believe that the present regulatory structure requires, or permits, you to allow continuing use of 084 numbers then this must be clearly made known to those whom you serve.
Under the NHS Constitution, they have the right to access NHS services without charge, except where such charge is explicitly sanctioned by parliament. Under the terms of the Health Act 2009, you (and your contractors) have a duty to have regard to the rights under the NHS Constitution. Public notification that these rights cannot be upheld would be a minimal response in the event of a decision to permit continuing use of 084 numbers. It would then be for parliament to decide whether to sanction co-payment, or perhaps approve further contract revisions that would require you to prohibit it, if you feel unable to do so under the current terms.
I understand that you will have much work to do through the continuing period of transition. Now that it has been confirmed that you will remain as the guardians of the principles of the NHS, when accessed through primary care, through and beyond the transition, I hope you will be keen to show that you treat this responsibility with the importance that it deserves.
My engagement in this issue has been purely in an attempt to ensure that the principle of universal and equitable access to NHS services "free at the point of need" is not undermined by the consumerist pressures that threaten to destroy the NHS. A difficult and widely misunderstood issue is readily open to exploitation if the necessary care is not engaged to counter blatant misrepresentations of the truth. I hope you will be ready to declare your refusal to sanction co-payment on access to NHS services under your control, and direct the action necessary to remove it.
Please be assured of my readiness to assist in any way I can.
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