GPs gain right to review NHS Resolution decisions

GPs have the right to seek judicial reviews of decisions taken by NHS Resolution, the Court of Appeal has ruled, following a legal challenge supported by the BMA.

The landmark ruling was in response to a case brought by west London GP Sashi Shashikanth, who had sought, and been denied, access to a review of a decision taken by NHS Resolution in relation to a dispute between his practice and NHS England.

A previous and now overturned decision by the High Court concluded that only GP practices classed as an NHS body under the terms of their GMS contract had the right to a judicial review of a decision taken by NHS Resolution in respect of disputes arising from their contract.

Handed down on 3 December, the ruling means that in future all GP practices will have the right to seek a judicial review of decisions by NHS Resolution in respect of the contract irrespective of their status.

Speaking about the court’s decision, Dr Shashikanth, a GP principal, spoke of his ‘immense relief’ at the successful outcome of his case, which he believes has set a vital precedent for independent contractors such as GPs and dentists.

He said: ‘It is an immense relief, and we are thrilled to have won this landmark case ‘All I was asking for were local agreements to provide PCN services to my own patients from both surgeries that are allowed and in practice elsewhere in England.

‘Instead of supporting my practices, Hillingdon clinical commissioning group decided to terminate my contracts. It was almost a five-year legal battle which was totally unnecessary.’

‘This case brings much needed clarity to the position of the majority of GP contract holders, and to others such as dentists, who hold ‘non-NHS contracts’ for the delivery of primary care services.

‘The judgment makes clear that if such contractors refer a dispute to the NHS dispute resolution procedure, they will not be powerless if the adjudicator reaches an unlawful decision. It also illustrates the importance of compliance with the process set out in the contract where the contract is to be varied.’

Dr Shashikanth’s struggle began in 2019 when his practice, the West London Medical Centre, found itself in dispute with the then NHS Hillingdon CCG, after it decided to terminate two contracts to deliver primary care services.

Dr Shashikanth referred the contract terminations to NHS Resolution, with the adjudicator however siding with the CCG, a decision that Dr Shashikanth then sought to challenge via judicial review.

A subsequent High Court ruling found that while the adjudicator’s decision had been incorrect, it did not qualify for judicial review.

After securing support from a number of organisations including the BMA, London wide LMCs and the GPDF (GP Defence Fund), Dr Shashikanth took his case to the Court of Appeal.

While not a direct party to the case, the BMA contributed to proceedings as an intervenor and made arguments about the wider implications of the ability of GPs being able to bring judicial reviews against NHS Resolution.

Following its ruling on 3 December, the court found that while the dispute was in relation to two contracts, the power being exercised by NHS Resolution was a statutory one and therefore subject to review by a judge.

The Court of Appeal judges also quashed the determination by the NHS adjudicator that supported termination notices by Hillingdon CCG.

In the wake of the Court of Appeal’s ruling Dr Shashikanth expressed his thanks to all those who had supported and stood by him over the past five years, in particular thanking the BMA for its intervention in the case.

He said: ‘I am ever so grateful to my wife, staff, patients and supporters for believing in me and standing by me. The BMA, London wide LMCs and GPDF showed a personal interest in this landmark case.

‘At the very beginning when I lost the initial High Court battle, GPC acting chair at that time, Dr Kieran Sharrock was very supportive and helped me to navigate through challenging times.

‘As a BMA member since my student years and it meant a lot to me to be supported by BMA at this final hearing leading to this landmark victory.’