R E O N C A L L :
a mutual approach to out of hours primary care services
by PETER HUNT CLIFF MILLS FOREWORD
BY RT. HON. JOHN HUTTON MP
The Challenge for Out of Hours Primary
Care Services 5
1 Introduction 5
2 Out of Hours today & the new GP contract
3 Options for maintaining cover 7
• GP Co-operatives 7
• Primary Care Trusts 9
• Stakeholder Mutuals 10
Care on call – A new vision for Out
of Hours primary care 12
1 The nature of the problem 12
2 The wider context 14
3 An achievable vision 17
It is really important for patients to be able to get a doctor
or nurse to see them out-of-hours. One of the main aims of
our improved NHS is to ensure that patients have good access
to professional primary care when they need it. Sickness and
distress knows no timetable so the NHS needs to be there,
providing security, 24 hours a day seven days a week.
Yet at the same time health professionals deserve to be able
to live a life where they can have some rest and time with
their families. So relieving GPs of out-of-hours responsibilities
is also important. That is why we have developed the new GP
contract which allows GPs to opt out of their 24 hour service
responsibility from December 2004.
To help make this happen we are doubling the amount of investment
that is going into out-of-hours services to make sure a quality
service can continue to be provided to all patients whenever
they need it.
To get this right the Department is talking very closely with
GPs and primary care trusts, and since the needs of patients
are paramount, we won't hesitate to intervene if there is
any risk that services to patients are likely to be disrupted.
This publication is a welcome contribution to the debate around
how best to maintain high quality out of hours care in the
new GP contract environment. We have developed new models
of mutualism too for NHS Foundation hospitals.
We need to do the same for primary care services I urge all
those involved in the
delivery of these services to engage positively with the ideas
contained in it and look forward to seeing the conclusion
of this work.
Rt. Hon. John Hutton MP
Minister of State, Department of Health
The Challenge for Out of Hours Primary Care Services
Peter Hunt, Director, Mutuo
The new GP contract, which comes into force in April 2004
means that doctors will no longer be obliged to provide out-of-hours
(OOH) cover and can choose to opt out of the service entirely.
Currently, some GP practices deal with OOH calls themselves,
in addition to their normal surgery hours each day; many more
contribute to a GP co-op to share the workload, and others
pay private deputising companies to provide the cover.
Under the new contract arrangements, the responsibility to
ensure OOH cover is available for all patients, transfers
to local primary care trusts (PCT).
These changes create opportunities for the NHS to redesign
OOH services whilst maintaining adequate and appropriate high
quality OOH cover. This publication argues that the challenge
for local health communities will be to establish new partnerships
that build on the strengths of all providers including GP
practices, GP co-operatives, commercial suppliers, community
services, NHS Direct, ambulance trusts and acute trusts. This
project seeks to encourage the provision of out of hours cover
from local community mutual organisations. New bodies will
be established, with a membership drawn from GPs, other healthcare
staff, administrative staff, and potentially patients from
the local community. Existing GP Co-operatives will also
be encouraged to transfer to these new arrangements.
Although many GPs may be planning to opt out they are not
going to abrogate their responsibility to their duty of care
towards the patients. General Practitioners want an effective
OOH system, preventing vested selfish interest and avoiding
an adverse impact on day time working. We believe that by
retaining and expanding the core mutuality of GP Co-ops, to
include other providers and stakeholders, the future of out
of hours care can be secured and indeed enhanced. In researching
this publication, Mutuo facilitated a number of seminars that
brought together representatives from GP co-operatives, PCTs,
the Department of Health and the mutual sector. This publication
has been informed by the discussions that took place at those
We would like to thank the following for their contributions
to the discussion: Dr Mark Reynolds MBE – Chairman NAGPC;
Dr Prasad Rao – Vice Chair NAGPC; Anne Bryant –
SEADOC; Dr Jeremy Lade – REDDOC; Mo Girach – SELDOC;
Colin Laws- KEYDOC; Mark Featherstone – MKDOC; Edmund
Jahn - Harmoni; John Anthony- SUSDOC; Alan Burchette –
SEADOC; Logie Kelman – NAGPC; Dr David Carson - Department
of Health; Rick Stern - CEO Bexhill & Rother PCT; Dr Jamie
Macleod – Secretary NAGPC.
2 OUT OF HOURS TODAY AND THE NEW
Currently, some two thirds of OOH cover is provided by GP
Co-operatives on a collective basis, with the rest provided
by the private sector. In urban areas, these providers often
coexist and will typically cover more than one Primary Care
Trust territory. These are also the main areas in which private
sector providers exist. From April 2004, under the new GP
contract the statutory responsibility for providing OOH GP
services will be transferred from GPs to Primary Care Trusts.
From December 2004, GPs will be given the choice to opt out
of providing OOH services. The responsibility for ensuring
that services are maintained is to be held by
Primary Care Trusts. It is anticipated that the majority of
GPs will choose not to continue to retain responsibility for
providing this cover as they do today, leading to a major
opportunity for developing integrated provision, commissioned
by PCTs. Some co-operatives are making provisions to wind
up their organisations in anticipation of the changes, and
a few PCTs are planning to act as providers of OOH themselves.
Some providers are however seeking to make changes which will
allow them to continue in the mutual sector and provide an
attractive organisation for GPs and other staff to continue
to work within out of hours provision. New Department of Health
guidance has been recently issued to PCTs outlining the issues
they and other providers of local services need to consider
when providing high quality OOH care and what staff structures
need to be in place.
In terms of the minimum service guaranteed it is written into
the contract that PCTs have to ensure Primary Care delivery
to their population. The OOH service covers GPs and a range
of other services, so instead of there being an obligation
on GPs to provide the cover as they have to up to now, the
new requirement is to provide overall OOH cover in which GPs
are the leading part.
Yet the expectation is that the public should not notice a
dramatic difference in the mechanism or style of delivery.
This change needs to be seen in the context of the continuing
rapid modernisation of the NHS. Innovations such as the creation
of NHS Foundation Trusts are part of this new landscape that
aims to create patientcentred services.
3 OPTIONS FOR MAINTAINING COVER
The Government’s objective is to maintain quality OOH
provision. But with a potential exodus of doctors from the
service, a difficult problem is created. The fear is that
large gaps will appear in the landscape of provision, leading
to a loss of service, coupled with increased pressure on the
remaining OOH providers. This, should it occur, will lead
to a knock-on detrimental effect on in-hours services, with
frustrated patients presenting themselves at GP practices.
If this scenario is to be averted, what is the possible alternative
future for OOH, and what will the providers look like?
If GPs are the lynch pin of the OOH service, and if their
co-ops will disappear as presently constituted, how can PCTs
ensure that they meet their obligations? What organisational
arrangements are necessary to meet this challenge?
Clearly, there are a number of potential answers to these
questions. Some GP co-operatives will continue as before,
elsewhere PCTs are considering providing the service themselves.
Doubtless, there will be new markets for the private sector
The biggest opportunity of all is that of dovetailing the
necessary re-organisation of the OOH service with the policy
direction of the NHS, by ensuring that all stakeholders are
engaged in OOH provision. The one thing that is clear is that
the ability of producers being involved as members to then
innovate and deliver good services has to be retained in any
new structure. If there are other stakeholders who could be
usefully involved in the delivery and management of this service,
then new structures should take account of them too.
But before turning to the potential solutions, we should consider
the valuable contribution that GP cooperatives have made to
the OOH service and the driving factors for their success.
Any new arrangements for OOH provision must seek to make the
best of these success factors.
‘GP Co-operatives have reduced the doctors’ workloads
by 75% and increased the efficiency
with which we managed our patients, so we always are in a
position to deliver a doctor who
was more or less awake, at the right place, at the right time,
with a far better level of equipment than was offered before.
So Co-ops benefited the patients and the doctors and have
been a fantastic success.’
GP Co-operative member
GP co-operatives are widely considered to have been a great
success over the last few years. Clearly, the change in OOH
must seek to retain the best features of GP co-operatives
if swift progress is to be made.
We can identify four key factors that have contributed to
the success of GP co-operatives:
• They are expert in that the front line healthcare
providers also plan the care
• They are innovative and entrepreneurial
• They are flexible and responsive to local health needs
• They have used the inherent self interested mutuality
to build strong, cohesive organisations
It is these factors that have helped to create OOH vehicles
that are fit for purpose, in that they couple the interests
of the producers with the commissioners and are popular with
Some GP co-operatives have already decided to discontinue
trading under the new contract, but another group of co-ops
will continue to function pretty much as they do today. Despite
the obvious reduction in certain motivations, such as the
lack of an obligation to do OOH driving the mutual self interest,
other motivations will continue. The most enterprising co-ops
will continue to view their future pragmatically, building
further partnerships with health economy players. The continuance
of existing co-ops is an attractive option in as much as it
maintains consistency and quality. One of the reasons for
the success of GP co-operatives is that they are not for profit.
Doctors do not have external shareholders looking over their
shoulders and they have to provide a quality service to their
fellow members. They are also hugely popular with the public
as demonstrated in the many surveys of satisfaction that most
GP co-operatives have carried out.
Co-operatives are innovators in a much bigger way than any
other part of primary care or indeed secondary providers,
as is evidenced by their entrepreneurial activity. One of
the benefits of the GP Co-operative structure is that it is
flexible and promotes entrepreneurialism in marked contrast
to the prevailing NHS culture.
The best Co-operatives in operation show that each individual
on duty has a sense of ownership, a high level of duty providing
the service, and a sense of interest in how the company is
managed on their behalf for services given to their patients.
The structure at the heart of a Co-operative is a good management
team, involving clinicians working very much as equals; and
that is something that can deliver immense synergy. Should
those things become too bureaucratic and too stifled, members
will not be allowed to be creative and organisational failure
could be the result.
The Co-operative is also an excellent vehicle for a large
number of other things that GPs have a mutual interest in
that they can’t do on their own.
We can expect that GPs are going to be in the forefront of
actually designing the new model and the delivery of OOH.
GP co-operatives should be the core of this new service provision
because they have the expertise and interest to deliver the
new GP contract, and they form the basis of mutualism in healthcare
provision and a core to build something else on.
PRIMARY CARE TRUSTS - DOING IT FOR THEMSELVES?
Two views were expressed:
‘It could be argued that there is some natural synergy
in a PCT and Co-op working together.
Co-ops might benefit from human resources and back office
support and through the co-op
structure the PCT is able to deliver more than Out of Hours.’
‘But the one thing that would terrify me about integration
within the existing PCT structure is
the decision making ethos that I see surrounding them within
the NHS. And basically it’s,
‘Thou shall not be wrong.’ And therefore the way
to avoid being wrong is not to do anything.’
GP Co-operative members
Primary Care Trusts already commission a number of services
from ambulance trusts and mental health trusts. However, PCTs
do not have a long established track record of successfully
delivering primary care services themselves. Most provision
is sourced through arrangements with contractors and also
commissioned from other trust providers. It is clear that
many of the operational, organisational and clinical governance
requirements may benefit from operating at a scale greater
than the average PCT.
The Department of Health is also committed to expanding the
plurality of provision.
One of the perceived potential weaknesses of providing OOH
through PCTs is that the service automatically becomes part
and parcel of the NHS and the autonomy of GP co-operatives
is lost. GPs and other clinical staff retain a strong desire
for the independence to make decisions and the freedom to
take calculated risks.
Another fear expressed by co-operatives was that the enormous
workload and complexity of the range of agenda that PCTs deal
with would mean that innovation might stop. The actual or
that goes with the PCT is very different from the direct producer
culture of GP co-operatives.
The majority of PCTs and Care Trusts were set up with quite
a strong sense that they would deliver Primary Care and social
care for their local communities. As they have developed it
is becoming clear that delivery can be achieved more effectively
via networks of provision.
The majority of primary care services are already provided
via a contractual relationship with GPS and other contractors
as well as with ambulance and acute trusts. An effective OOH
provider with good community links would add significantly
to the PCTs ability to procure effective integrated services
for its population.
In conclusion, PCTs are not structured in a way to be able
to replicate the success drivers of GP Cooperatives. Although
it is recognised that for some PCTs, self provision may be
the only option in maintaining OOH cover in the short terms,
it should nevertheless be treated as an interim stage. A managed
clinical network with and effective OOH provider working with
other provider in the medium and long term is likely to be
a more effective solution.
‘It is about time some of us in medical management seriously
looked at the skills mix we use
and the dependence on general practitioners.’
‘We talked about creating organisations to serve a purpose,
and these are already being
created with a multi-disciplinary membership. It has been
accepted by our health community
that we should in future have governance which includes all
GP Co-operative member
Many GPs will continue to do shifts because they like doing
it or they need the money. There are a whole variety of reasons
why they do it, which are still going to be there in the new
system. So the issue for GPs is about creating an alternative
OOH model attractive both to PCTs as commissioners and to
GPs. GP co-operatives are about member participation. But
many GPs will feel uneasy about setting up something as important
as OOH care for half a million people with quite a small membership.
If there is going to be a new delivery model that includes
the GPs, that includes all the positive drivers that we have
identified, can we ask if there are any other stakeholders
whose involvement would be beneficial? It was felt that at
the provider end, nurses and paramedics can provide a high
proportion of the care required in OOH. Patient transport
services were seen as important and in some areas mental health
is very important
- in Inner Cities in particular, where it can tie up a doctor’s
time a great deal. Dentist treatment is a constant irritation
for GP OOH and social services and immediate support for the
elderly is also very important.
The co-ordinating roles for all these services are best carried
out by a group of duty clinicians, not just doctors and a
management team, but one that really understands the local
health network and the local economy.
A real sense of ownership can also encourage creativity and
helps to ensure that members feel obliged to do certain things.
A robust structure that allows the directors and personnel
to move through over a period of years is required. The directors
within that organisation would be the ones who are responsible
for running the organisation, but they would not have substantial
The role of the PCT commissioner is also considered crucial
in any stakeholder mutual because of the need to reflect the
full range of interests present in the provision of OOH. Cliff
Mills examines this in more detail
in his contribution
Is There a Role for the Patients and
‘If I put my patient hat on, what’s important
to me is that there is good emergency cover. I know that as
a patient, doctors play a very important part in that, but
I also know that there are other providers who also play an
important part. So if we’re looking at it from the patients’
point of view, you see a very different perspective from that
of the GP providing Out of Hours cover.’
GP Co-operative member
We asked this question because when looking at other mutual
organisations for example, customers play a significant role.
The fact that they do, does not necessarily mean that the
same structures must be replicated in OOH, but it is interesting
that in the case of NHS Foundation Hospitals, for example,
the public have become key stakeholders.
It can be argued that having a substantial and institutional
buy-in from the local community, could actually put the organisation
in a very strong negotiating position in discussions with
the PCT. In some areas where PCTs might not be performing
very well, it was felt that the patient’s voice would
be very strong and will influence the way the PCT reacts or
actually models the new Out of Hours service.
Many GP co-operatives distribute questionnaires and conduct
focus groups to get feedback from patients. Some have lay
people on their councils. It was felt that as long as this
was not an elaborate form of tokenism, it could benefit the
organisation because they need people to challenge decision
makers, ‘otherwise we do steam roller stuff.’
(GP Co-operative representative)
If it is accepted that there is a need to get a number of
the public involved, how many should be selected and by what
method? This is a similar issue to that faced by NHS Foundation
Hospitals. It is very difficult to fairly represent a million
patients and so there are questions about how to get people
This raises issues around the tiers of governance and around
the appropriate point of involvement for each of the different
stake holders. One of the key areas explored by Cliff Mills
in this publication is how affinity can be built up with the
patients and the public.
Certainly for any stakeholder mutual structure, there are
issues about the involvement that individuals can have and
whether it should be in proportion to the importance and extent
of the job that they do, and their importance as the paying
Care on call – A new vision
for Out of Hours primary care
1 THE NATURE OF THE PROBLEM
Since the creation of the NHS, GPs have had the legal responsibility
to provide General Medical Services (GMS) – 24 hours
a day, 7 days a week. Over the last few years, there have
been some changes. Other services have evolved as well, such
as walkin centres and NHS Direct, but the core part of the
service still comprises the medical service provided by GPs.
The GP workload has caused concern, especially the out of
hours (OOH) work. In order to discharge their responsibility
for this service, the majority of GPs have pursued a traditional
self-help remedy of setting up a co-operative of GPs. In this
way, they have met their need to discharge their legal requirements
to provide OOH cover, but in a more efficient and effective
way. Some of these arrangements were little more than small
Many of them incorporated as coops, which have become respected
providers of primary care services in their own right, of
substantial size in terms of GP numbers and population coverage.
Notwithstanding their size, they have retained a degree of
flexibility, which has enabled them to expand and vary their
service quickly to meet changing demands.
Such flexibility or elasticity is uncharacteristic in an NHS
generally characterised by centrally driven control. GP co-operatives
have provided a good solution, and brought some real benefits.
However, with the intended introduction of the new GMS (nGMS)
GP Contract, which removes the GPs’ twenty-four hour
responsibility, the glue which binds GPs together in co-operatives
has been removed.
The problem The legal responsibility to
maintain OOH cover has been transferred to PCTs – it
is now the PCTs’ responsibility which could become a
problem for them.
Or rather, it is our problem. It is our problem, because OOH
services are needed by us, and members of our communities.
And it is our problem because we are paying for it through
central taxation. The simple step of giving the legal responsibility
to PCTs does not make the problem go away, or provide a solution.
What are the PCTs to do?
How are they to provide or procure services? What experience
do they have of planning the procurement of such services?
More importantly, who will provide those services? In short,
what is the vision for the future?
One thing is certain: the support of GPs is needed because
it is important for them to play a significant role. But it
is also important that the delivery of OOH services is planned
in conjunction with a number of other bodies. In the Carson
report ( Raising Standards for Patients:
New Partnerships in Out of Hours Care – October 2000
into OOH, wider integration was promulgated as the only sustainable
forward. GP co-operatives work well because they have built
up relationships with social services, mental health trusts,
ambulance services, A and E units, and community nurses (to
mention some of them). They have established such relationships
because of the support it gives them – enabling them
to make better use of their time as GPs, and leaving other
specialists to deal with problems which they are more suitably
equipped to deal with.
Many GP co-operatives have built up a significant body of
employees to support the delivery of the OOH services. These
include receptionists, drivers, managers, and nurses. The
experience and training that they have received is a valuable
asset. These people all have an important part to play in
the future provision of OOH services; but they are currently
employed by organisations that are likely to cease trading.
So what is to happen next?
There are four basic possibilities: (1) carry on with the
current arrangements, with GP co-operatives providing OOH
cover; (2) the introduction of a significantly increased level
of private provision; (3) the PCTs take on the provider role
themselves: and (4) new vehicles are established to deliver
The first option is not viable, because the deal has been
done on the new GP contract, and the Government is committed
to giving GPs the freedom to opt out. Save in a very small
number of cases, GP co-operatives as currently configured
are unlikely to continue to exist and be available to provide
the cover. The second option is possible but perhaps not everywhere.
That leaves two options.
Some PCTs are already contemplating the option of providing
services themselves. Some are working with existing GP co-ops,
looking to transfer staff into the PCT to ensure that they
will have at least some actual experience and capability.
However the signals emerging from the Department of Health
are that PCT provision is not the preferred route. Bolting
on to a newly created body (PCTs only effectively came into
existence in 2002) the responsibility for delivery of such
a major service will certainly create a substantial new management
The previous section has outlined the benefits of effective
innovatory providers and the need to have effective governance
and management structures capable of established joint operations
with other parts of the EC network.
It is possible to envisage the fourth option – the evolution
of a new form of OOH primary care provider, in which GPs play
a key role, and other agencies are tied into the structure
to support the provision of a broad range of services. But
what would such a supplier look like and who will take it
forward? Any model for such a provider needs to be adaptable,
in order to suit the varying needs of our diverse communities.
The ages, social and ethnic profiles of our communities, as
well as geographical differences and rural/urban contrasts,
have a big impact on the services needed, and the best means
Lawyers can set up the legal structures that their clients
ask them to establish. They can advise about the usual options.
But in truth that is of little help, because a legal structure
does not answer any of the questions
– it is no more than a means to an end. The question
we are facing is: what is the end we are trying to achieve?
What is the vision for the future?
2 THE WIDER CONTEXT
Blinkered thinking - One of the problems that afflicts us
in facing such fundamental questions in this country, whether
in the context of the NHS or in our other key public services,
is our narrow view about the options which are available.
We are quick to criticise state-owned entities, and to point
out the weaknesses of government owned and controlled services.
If and when it is decided that state-ownership does not work,
we then lurch in the opposite direction and opt for privatisation.
That may be a simplistic description of our national mindset,
but I think it is fair to say that we struggle to envisage
more than two possibilities – state or private ownership.
If one has failed, then it is assumed that the other must
be the answer (or at least better).
The debate about ownership is crucial, and although it is
not the first question that springs to mind in the context
of OOH provision, it is one of the questions which has to
be answered in determining the vision for the future. It has
to be answered before you can decide what legal structures
to set up, and how they are to be governed.
Ownership (and we will come back to what
we mean by that) is important because ownership brings with
it some degree of control. We own things (or want to own them)
in order to derive from them the benefits which ownership
Who should have the ownership of our public services? We may
decide that private ownership of a service is inappropriate,
because allowing shareholders to control the agenda has an
unacceptable impact on the interests of customers, or employees,
or future generations. We may decide that state ownership
is inappropriate, for example, because other considerations
(eg political ones) detract from the delivery of the service.
Are there any other options?
Ownership gives control, as already stated, and with it comes
the ability to drive the success of an organisation. In a
recent publication from the Institute of Public Policy Research
entitled “From Welfare to Wellbeing” (the future
of social care), Anne Davies commented as follows in writing
about public service accountability:
In a democracy, it is axiomatic that a public service such
as social care, which is authorised in statute and publicly
funded, must be accountable. This is in order to assess competence,
to ensure financial probity, to safeguard administrative propriety
and to guarantee responsiveness (on the grounds that there
is no point in delivering a service no-one either needs or
I agree entirely with this – accountability is needed
to enable owners to take action, and to use their ownership
rights to make changes.
As the legal “owner” of the NHS, the State has
the ability to take appropriate actions. Unfortunately, experience
has taught us that for a variety of reasons, it is inefficient
at doing so. The true owners of the NHS are the people who
pay for it. The State only “owns” or holds the
NHS on behalf of the people of this country. On that analysis,
the managers of the NHS are accountable via the Secretary
of State to Parliament, which is itself accountable to the
This is a hopelessly remote and unresponsive form of accountability
– no wonder many people consider it inefficient. What
is needed is a change of ownership structure, which makes
people – communities – the owners, and takes the
State out of ownership. By doing this, by empowering local
communities and aligning the authority of ownership with the
needs of users, a much stronger model is created which contains
its own drivers for
success. A range of options can be developed, offering different
levels of participation by GPs, employees, patients and public,
to facilitate the form of local ownership appropriate to different
communities, and to meet varying needs.
If people and the communities to which they belong are the
owners of the NHS, it will become accountable to them. This
is appropriate not only because we are the users, and we want
a patient-focused service, but also because as citizens we
are paying for this service through general taxation.
People should be the direct owners of the NHS, by giving ownership
of its constituent parts to people locally. It will not be
a form of ownership that gives them individually the right
to sell something and realise its value, but will instead
be a form of ownership that gives people a collective ability
to shape and control the services
provided in their communities.
What does community ownership look
like, and what form would it take for an OOH provider?
Basically there are two legal regimes available under which
bodies can be incorporated – company law and industrial
and provident society law. Both of these regimes provide a
mechanism for forming (incorporating) a legal structure (corporation)
with limited liability, and its own legal personality.
The company model is the best known and understood,
and is therefore the approach most frequently adopted. It
has been so successful as a vehicle for ownership because
the underlying purpose of the vehicle (generating wealth)
is aligned with ownership, and company law as applied by the
courts has consistently stuck to the principal that the ultimate
duty of directors is to act in the interests of the company
and its shareholders.
There are some other forms of company apart from the more
familiar company limited by shares, such as the company
limited by guarantee (CLG). This form works particularly
well in a charitable context where those responsible for the
charity (trustee directors) are able to ensure that future
appointments are in the same mould. It also works well when
seeking to serve the interests of a narrow group of people
with a common aim – eg a worker co-operative.
The GP co-operatives use this form and it has worked for them.
However the CLG is a comparatively weak form of ownership.
Save in situations like GP co-operatives where the members
are meeting their own interests and its success or failure
is entirely within the hands of its members, the CLG commonly
relies upon external or artificial means of accountability
to drive the achievement of success. It does not contain within
it the mechanism for driving success.
There is a new form of company (the community interest
company) being introduced in the Companies (Audit, Investigations
and Community Enterprise) Bill. This is intended
to provide another type of legal structure with particular
attributes to make it appropriate for social enterprises which
would otherwise use the CLG form. It may be something to consider
in due course, but at this stage it has not been enacted.
Strong legal form
The strong legal forms contain within them the drivers of
success. They harness the interest of a particular group or
groups of people and use that interest as a tool within the
governance structure as a driver for success. A conventional
company is owned by its members or shareholders, and managed
by its directors. The directors have a duty to maximise the
financial return to shareholders, and are accountable to the
shareholders for that. If the company is not doing well enough,
the shareholders can change the managers/directors. The structure
is therefore designed to achieve the underlying purpose of
providing rewards for investor shareholders, who use their
ownership powers to drive its success. As already observed,
it is a very successful vehicle because the underlying purpose
is aligned with ownership.
An industrial and provident society is fundamentally different,
but it is also a strong legal form. It is only capable of
registration with its registering body (the Financial Services
Authority) if it has a social purpose – either being
committed to trading for the benefit of the community or as
a bona fide co-operative. Whilst it needs to be profitable
to survive (avoiding insolvency), making a profit to distribute
to investors is not its reason for being. It is there in order
to provide a service to people who wish to receive that service.
The distinctively different nature and purpose of companies
and societies go back to the origins of these two different
Companies were the lifeblood of the industrial revolution,
being vehicles designed to encourage investment, generate
wealth and economic growth. Societies emerged at the same
time, but for a different purpose. Many people found that
they were not benefiting from this increased investment, new
wealth and economic growth. On the contrary, many suffered
from the working conditions that were imposed, were unable
to buy basic provisions free from contamination and at a fair
price, were unable to protect themselves against misfortune,
or unable to borrow money to provide their own housing.
The traditional mutuals were a self-help
mechanism by people in communities – providing services
for themselves which were not otherwise available. They were
based on people getting together to meet their common needs.
Many large (and small) mutual organisations continue to trade
successfully today, providing a wide range of services to
many communities. Indeed in the last five years or so, there
has been a resurgence of interest in this form of ownership,
and a growing appreciation of the benefits which it can contribute.
Modern versions of mutuality have emerged, where membership
is open to customers, local residents and employees, and a
wider group of “stakeholders” or key parties has
representation at strategic level. In these new mutual organisations,
it is common to see a board comprising elected representatives
of customers, local residents and employees, together with
appointed representatives of key parties such as public bodies,
business interests, and voluntary organisations. Their role
is to play a part in the forward or strategic planning, and
to have responsibility for hiring and firing a professional
management team which itself is responsible for the day-to-day
management and delivery of the strategic plan.
Membership of such an organisation gives people the right
to participate in the functioning of the society. They can
attend members meetings, at which they have the rights to
speak and vote on any resolution. They can vote in elections
of board members, and seek nomination themselves to serve
within the democratic or other participatory structures in
the society. These are important rights, which give people
ownership of the organisation, and a legitimate and real say
in the provision of a service to them or the community in
which they live.
Examples of such “modern mutual” structures include
foundation hospitals; leisure trusts (community based organisations
to which local authorities have transferred their leisure
facilities); the new generation of social housing constitution
(the Community Housing Mutual); and football supporters trusts.
3 AN ACHIEVABLE VISION
A new provider
Community ownership, structured on modern mutual lines, is
a serious option to consider for OOH services. We need a strong
form of ownership, which contains its own drivers for success.
We need an approach which will result in local ownership,
and will provide a platform for a wide variety of key organisations
to play a part. We need a structure which is sustainable,
and which can evolve to meet changing needs and changing views
about the best means of delivery. We need an organisation
with a clear governance structure, which GPs are confident
will be an effective delivery vehicle, and which allows professional
managers to do their job, whilst remaining accountable to
As already observed, most of the current GP co-operatives
will cease to exist in their current form. However these co-ops
could provide a stepping-stone to a new or revised structure,
in which GPs share their ownership and control with a wider
group of participants.
There are also some key criteria from the PCT’s point
of view. A PCT needs to be able to procure GP services for
OOH cover in an efficient way. It needs to be able to do this
in a way which satisfies its concerns about clinical governance
and broader issues of corporate governance. And fundamentally
a PCT needs to deliver a procurement strategy which obtains
best value and delivers the service which the community needs.
Work is now underway with NAGPC, the Department of
Health’s OOH Implementation Team, and PCT representatives
to develop a template constitution for OOH provision.
Options are needed which provide a range of different levels
of participation by GPs, employees and others. Some may wish
to adopt a model similar to the current GP co-operatives but
with wider participation from other parties. Others may be
willing to move to more significant local community participation.
We are talking about a new incorporated legal entity, which
will play a key role in the delivery of OOH primary care services.
The key features of this model are as follows.
The Core Business
The core business of the new entity will be the delivery of
the traditional out of hours GP services. As is already happening
in a significant number of areas, the development and training
of first contact clinicians and nurses, and the use of triage
procedures is resulting in a wider group of clinicians sharing
However, an extensive programme of recruitment and
training will be needed in order to provide a sufficient resource
to make a significant impact on the work-load for GPs.
For the short to medium term, GPs will be playing a very substantial
role in the delivery of OOH services.
In relation to the services provided by A and E departments,
ambulance, mental health, social services, and other providers,
there are clearly some alternative approaches available. These
organisations could enter into service level agreements with
the new provider, enabling the new provider to offer to the
PCT a comprehensive range of services. Alternatively, the
PCT could procure services from a range of providers, and
oversee the delivery of those services and the fulfilment
of contractual obligations.
The geographical territory to be covered by a new provider
will in practice be governed by the way PCTs choose to work
together. Strategic Health Authorities have an important role
in ensuring appropriate cooperation between PCTs, and a development
of sustainable high quality services across their region.
The new provider will itself have to determine the optimum
size for its territory, based upon a financial assessment.
This may result in larger areas than those currently served
by some GP co-operatives.
Day to day management of the business of the new provider
needs to be in the hands of an executive management board.
The management of the delivery of OOH primary care services
requires dedicated and appropriately skilled management. The
experience of the GP co-operatives shows that the co-ordination
skills needed to deliver services with a variety of providers
can be effective if located on the provider side. Whether
PCTs in their commissioning role have the desire and capacity
to take on such a role themselves is a matter for local decision,
based on local needs and local resources.
The management skills required at executive level in the new
provider will include administration, logistics, clinical,
finance, and HR. Representation at executive level by the
key disciplines is likely to be appropriate, to reflect the
services being delivered.
Strategic or forward planning
Strategic planning needs to take place amongst a wider group
of parties, but in consultation with the executive management
board. This wider group is given different titles by different
organisations. In the new foundation hospitals, the group
is called the board of governors. Sometimes it is referred
to as a council, to distinguish it from an executive board,
and for the sake of clarity I will use that term here. As
well as having a role in relation to strategic planning, the
council also has some responsibility for the appointment and
removal of members of the executive management board.
It is at council level that the interests of all of the key
parties needs to reflected. Substantial representation is
therefore needed here by GPs and the PCTs. It seems likely
to be appropriate for every commissioning PCT to have at least
The other providers who are engaged in the provision of services
alongside or as part of OOH primary care could also be represented
on the council. In particular this will include A and E departments,
and ambulance services whose level of involvement and participation
in the delivery of services is extensive.
Other services such as social services (including community
nurses), and mental health, might be usefully represented,
as may NHS Direct, pharmacy, palliative care, and dentistry.
There are two other key groups of people for whom some form
of representation at strategic planning level is of real importance.
The first group is employees of the new provider. A provider
of primary care services to upwards of 500,000 patients is
likely to employ 50 or more people, and over time could employ
substantially more, depending upon the approach of the other
key bodies. There is no doubt that mutual or community ownership
puts a high store on the involvement of staff in its democratic
structures and governance. Some representation of employees
is therefore appropriate on the council at the outset, and
the level of such representation, and
possibly the need for representation of different categories
of employees may need to be considered in due course.
The second group, and arguably the most important of all,
is patients and public. Community or mutual ownership has
no real meaning unless representatives of patients and the
public are involved at the strategic planning level. More
difficult are the questions about how such representation
is to be achieved, and what level of representation is appropriate.
The immediate reaction of many people to the idea of public
involvement at this level is one of concern or even fear.
How can ordinary members of the public make an effective contribution?
Will they not be seeking to disrupt the process? What happens
if special interest groups infiltrate the process? Whilst
these are questions that have to be treated seriously, there
are many obvious ways in which they can be addressed, and
the perceived risks minimised. Working with community bodies
to identify talented people, encouraging committed people
to put their names forward for representation, providing training
about the responsibilities of holding positions, a clear constitution
setting out in plain English the extent of
the role of the body engaged in the strategic planning, following
best practice in the management of meetings – all of
these are regularly practised by organisations who rely on
lay input. In the very near future,
Patient and Public Involvement Forums will exist for every
PCT in England. These
forums could provide a basis for patient and public involvement
with new providers of OOH primary care services. One option
would be for the forums to nominate one or more of their members
to participate at the strategic planning level and to serve
on the council of the new provider. However, this may not
be an ideal approach, as the Patients’ Forum is linked
to the commissioner, rather than the provider. Another option
is to provide that representation should come from patients
and public in the region covered by the new provider –
in other words patients and public directly choose their representatives
who serve on the council.
Patient and public involvement – whether it happens
at all, and if so whether it is by direct representation or
through the Patients Forums – is a matter which has
to be determined locally. Options need to be available to
suit varying opinions about this, as well as providing the
mechanism to change over time.
Every corporate entity has members. As already described,
the members of a company are its
shareholders; the members of the traditional mutual organisations
often comprise customers and employees. The members of the
new foundation trusts are public, patients and staff (both
directly employed and contracted).
The role of members in a corporate entity is, in practice
limited, and it is defined in the constitution. It normally
• the right to receive information about the organisation’s
• the right to take part in the election of some or
all of the board members
• the right to attend and speak at an annual and other
occasional or special members meetings
• the right to vote on any resolution put to the members.
Usually there are narrow limits on the issues that can be
put to the members, namely changes to the constitution, merger
with another entity, and the decision whether or not to wind
up the organisation.
Whilst these members’ rights are limited, they are nevertheless
highly significant if combined with open membership. The reason
is that members are ultimately the owners of an organisation,
and the ability to prevent it being captured by others (including
commercial enterprises, the state as well as political or
special interest groups), lies in the hands of members. It
is these rights which give members a sense of the ownership
of the body.
Experience shows that membership-based bodies carry significant
weight and credibility, both within communities and in dealing
with external bodies. It is more difficult to challenge the
aspirations of an organisation based on wide membership, which
has used that membership to form its aspirations. Membership
also provides a powerful base for reaching out into local
communities. An increasing element of the health agenda now
involves educating and informing people about health and healthy
It is right to have ambitious targets for reducing the costs
of healthcare by reducing the likelihood of disease, injury
or disability, minimising the need for medical intervention,
and securing the most effective recovery.
Achieving a better understanding of the importance of diet,
exercise and other lifestyle issues, and changing attitudes
about responsibility for one’s own health are important
long term aims, and an engaged membership can clearly play
a significant part in that.
Who will be the members of the new providers? It would certainly
seem to be appropriate that GPs should be members (this would
provide a mechanism for them to elect GP representatives on
the council) and also that employees should be members (similarly
providing a mechanism for electing their representatives).
Patient and public membership needs to be carefully considered.
Such membership can bring the benefits just described. It
is also a key part of the governance mechanism in driving
the success of the organisation
– it provides the basis for the ultimate accountability
to patients. However it has a financial cost, which must be
taken into account. It must also be borne in mind that patients’
forums will be in existence, and it may seem confusing to
members of the public if they can become members of two bodies
in relation to primary care.
As already mentioned, patient and public involvement is a
matter which has to be determined to suit local needs. It
may be something to introduce at a later stage.
Finally, what sort of legal structure will be most appropriate
for the new provider?
If the new provider is to have the trappings of community
ownership, and draw on some of the learning and experience
of new mutual organisations, then for the reasons set out
above, the most appropriate structure is likely to be a society.
In practice, it may be sensible to provide a choice between
a company and a society.
Any company model at this stage will have to be a company
limited by guarantee, since the community interest company
is not yet in existence and will not be within the timescale
needed to establish new providers. In due course, the community
interest company may provide an attractive alternative.
Creating a new entity along the lines described above is only
likely to happen if the organisation has a good chance of
a relatively stable future. It is not likely to be a sustainable
approach if there is an expectation of re-tendering after
a short period of time.
However, the need remains for PCTs to ensure that they are
achieving best value or value for money, and that the provider
is meeting the needs and expectations of the patient community.
The traditional mechanism for achieving this is through the
contractual relationship between PCT and provider. This will
continue to apply, but is limited by the terms of the contract,
and those issues which could be foreseen at the time the contract
is written. The approach we are describing, through providing
PCTs with membership of the council of the new provider, is
a more dynamic approach, delivering a more engaged and effective
mechanism for achieving the PCT’s objectives.
For this to work, the PCTs must be satisfied that their role
within the structure of the provider vehicle enables them
to have an appropriate level of influence in strategic planning,
and access to relevant information on performance for them
to discharge a valid monitoring role, but without creating
a conflict of interest. As members of the council, perhaps
with power in appointing and removing executives, and through
such tools as bench-marking, they could put themselves in
a stronger position to work with other key parties to ensure
that the provider is meeting relevant targets.
Significant participation by a local community will also be
an important factor for PCTs. If a community really takes
ownership of such a provider, issues of performance and efficiency
should not result in the PCT automatically and immediately
seeking a new provider, but rather in the PCT working with
the local community at council level within the new provider
to replace management or to buy in the necessary support to
deliver proper services. This is the essence of a strategic
partnership understood in the
commercial sector and encouraged by Government in other areas
of public service delivery.
Transition issues The establishment or incorporation
of legal entities for new providers can proceed relatively
easily. However it would be premature to proceed with this
in isolation from the PCTs and their Strategic Health Authority.
The PCTs will be the procurers of services, and it is very
important that they are closely involved in any dialogue about
the establishment of a new provider, and that their approach
to procurement is known to be
compatible. The first stage of the process must therefore
be that the relevant PCTs get together, and identify the services
they need. This has to be based upon a suitable geographical
region, for which services can be provided on an economical
and manageable basis.
The PCTs then need to decide upon their procurement strategy
– whether it is to be based upon buying services from
a multiplicity of individual providers, or working with one
major supplier. If the latter course is preferred, they can
then consider whether they have any preferences for particular
types of provider, their own level of participation, and the
participation of others. This may lead to supporting the creation
of a new vehicle; it may lead to adapting an existing GP co-op
which wishes to evolve to meet the changing
environment; it may lead to working with another existing
provider which satisfies the PCTs through some form of tendering
process that it can provide the most effective solution.
It will be important to consider the position of the current
GP co-operatives, their liability for redundancies should
they plan to cease trading, and the position of their directors
in making any decisions about the future. If an appropriate
new vehicle is provided, a transfer of staff under TUPE arrangements
may be possible. It may also be of benefit to the new provider
(and the commissioning PCTs) to purchase assets, know-how
and systems from the GP co-operatives. These are certainly
significant factors for directors making decisions about the
future of their existing co-op.
In practice, the priority now is for a dialogue between all
of the key participants to proceed as quickly as possible,
in all parts of the country, as encouraged by the recent (October
2003) publication by the Department of Health – “Implementing
the nGMS Contract: Out-of-Hours”.
It is hoped that this publication may stimulate discussion,
and help some people to develop a vision for the provision
of OOH services in their area. Specific practical assistance
is now being prepared, which will help to provide a route-map
through a period of transition.
The current difficulties faced in providing OOH primary care
services create a real opportunity to continue the development
of a new approach in the delivery of healthcare. GP co-operatives
have demonstrated the advantages of flexibility to meet local
and changing needs. They have shown the enduring value of
traditional self-help structures.
The introduction of foundation hospitals has been a huge step
forward, making the first momentous break away from state-ownership,
and opting for community ownership based on modern principals
of mutuality. There is the chance now to do the same in a
key part of the provision of primary care services, and to
retain the best of what has been learned from GP co-operatives.
Peter is the Director of Mutuo. Since 1994, he has worked
with the co-operative sector and in 2001, he established Mutuo
as the first cross mutual sector project to promote mutuality
to opinion formers and decision makers.
Peter is particularly interested in mutuality and has sought
to engage the co-operative movement in work to raise the profile
of the co-operative and mutual sector.
He was one of the founders of Supporters Direct, the football
supporters trusts initiative, and has been instrumental in
the Parliamentary agenda to modernise Industrial and Provident
Society law. He has co-authored, ‘Making Healthcare
Mutual’ and ‘Back Home – Returning Football
Clubs to their communities.’ 2002 & 2003 respectively,
both published by Mutuo.
Cliff is a Partner at Cobbetts, solicitors in Manchester,
Leeds and Birmingham, and he is a leading expert in corporate
governance and the law of mutual and co-operative organisations.
Since the mid-1990s, he has advised the leading co-operative
retail societies on constitutional and democratic issues,
and since June 2001 Cobbetts have been legal adviser to Co-operatives
UK. He was adviser (with Ian Snaith) to Gareth Thomas MP on
his private members bill, enacted as the Industrial and Provident
Societies Act 2002.
Cliff is at the forefront of designing new corporate constitutions
for the ownership of public or community assets. Projects
include a constitution for a water utility company, the Community
Housing Mutual constitution for the National Assembly for
Wales and a childcare model for Mutuo and Social Enterprise
London. He is a member of the NHS Foundation Trusts External
Reference Group, and with one of his partners, was responsible
for preparing the constitutions of ten of the first wave of
twenty-five NHS trust applying to become foundation hospitals.
T: 020 7367 4177
F: 020 7407 4476
Published by Mutuo
77 Weston Street