The revision to the GMS contract (adding clause 29B) has not effected a ban on the use of 084 telephone numbers by GPs.
This posting addresses the relevant provisions in detail and covers some of the (spurious) reasons that may be offered to suggest that they do not apply to cases where clearly they do.I am advised that even after PCTs have gained some understanding of the issues, they are unable to ensure compliance with the stated contractual terms.
Further to these remarks, I would be delighted to address any specific obstacles to achieving compliance. If, after noting the remarks below, there are seen to be reasons why PCTs permit practices to continue using these numbers after all necessary processes, prior to and including formal action in respect of a breach, have been concluded, then I am most anxious to know what they may be.
Please contact me with any such cases, either directly or by adding a comment to this posting, and I will respond.
It is important to understand that the Department of Health has issued no formal explanation or advice about how the terms should be interpreted or applied. Others, notably the BMA, have expressed their views and opinions, however none of these have been endorsed by the Department.
It is for each PCT to decide how it should interpret the terms, as drafted (and nothing more), when making a determination about whether any particular GP is complying with its contractual duties.
I am totally convinced that proper application of these terms would have ensured that no 084 telephone number was being used by the deadline for compliance of 1 April 2011. Every such number fails the test of acceptability, and every GP is able to vary the terms of its arrangement for the provision of network telephone service so as to migrate to an acceptable number.
Readers may find it convenient to refer to a copy of the terms of the GMS contract, clause 29B, (available in various forms from the Department of Health) as I address the essential elements of the clause as it is worded. I quote extracts that should stand by themselves, but it is vital to ensure that they stand in context.
Structure of my comments
|>>>>||The key element of the requirement relates to the cost incurred in telephoning the practice|
|>>>||How to determine which numbers are covered|
|>>>||Statement from Ofcom confirming that only 03 numbers meet the requirements|
|>>>||The stated policy of the BMA GPC and how this is applied to undermine the requirements|
|>>>||Confirmation of why calls to 084 numbers are more expensive|
|>>>||Attempts to suggest that the requirements do not apply to all callers|
|>>>>||Applicability of the requirements to newly adopted non-geographic numbers|
|>>>>||The need for those with existing non-geographic numbers to review their position|
|>>>||The action that those with existing numbers are required to take|
|>>>||The competence of GPs, as recognised and to be applied under the proposed "NHS reforms"|
|>>>||The worthless "Call Back" provision, which would never apply|
|>>>>||Various possible terminations|
having regard to the arrangement as a whole, persons will not pay more to make relevant calls to the practice than they would to make equivalent calls to a geographical number
The first point to note is that the actual cost of a telephone call (what "persons" pay) is set by the telephone company through whom the call is made - not by Ofcom, the practice, its telephone system provider (commonly NEG) nor its network telephone service provider (commonly Talk Talk). There is some regulation of some absolute call charges set by BT, but this does not apply to calls to a geographical number, nor the relationship between the two.
Secondly, the practice is required to have regard to "the arrangement as a whole". Not the circumstances of some of its patients, nor even that of a majority, but the arrangement as a whole. Any significant number of cases where "persons" will pay more would cause a number to fail this test, regardless of any cases where they would not.
Thirdly, the phrase "will not pay more" is used. This implies that the practice must have some reasonable degree of confidence that the telephone number they are using, or are to use, actually is charged at no more than the rate applicable to an equivalent geographic call. There can be no consideration of what some may wish or think proper. This requirement is not limited to those cases where the practice, or its agents, may perhaps be able to exercise control over what is charged.
There is no assistance provided by the Department of Health as to which ranges of non-geographic numbers are likely or guaranteed to meet this requirement.
With reference to the Directions to NHS Bodies, which are quite separate but impose very similar requirements, the Department of Health has perhaps gone a little too far in stressing that it is the actual cost found to be incurred by the caller, rather than the type of number per se, which is important.
In this different, but related, context the Department has stated:
"Organisations remain free to use non-geographical number ranges such as 084, providing that patients are not charged more than the equivalent cost of calling a geographical number to do so".
084 was a poor example to choose as an illustration of the type of range where only numbers that are "not charged more than the equivalent cost of calling a geographical number" may be used. Whilst the statement is true in principle, in fact there are no cases of 084 numbers which can be found to meet this requirement.
At the time when this comment was drafted, Ofcom was (informally) considering the possibility of introducing regulations to fix the rate charged for calls to 0845 numbers to be no greater than that for geographic numbers. Such regulation could not however have been introduced before the Autumn of 2011, after Ofcom acquired the necessary new powers, so it was always irrelevant. As it happens, Ofcom has now abandoned this idea, as it has chosen to proceed in another way.
What Ofcom has chosen to do will remove the present perverse and exceptional cases where calls to 084 numbers are not more expensive than calls to geographic numbers; it will also cause the "Service Charge" which exists on all such calls to be more transparent, including being declared by all those who use such numbers. An announcement of the plans for implementation of these measures will be made in the coming months.
When all publication of 084 numbers has to be accompanied by the declaration of the level of Service Charge, it will be much easier to determine which numbers are more expensive.
In the meantime, Ofcom has been helpful in providing me with formal quotable statements in response to specific questions about its understanding of the present situation.
It is a simple task to verify the facts behind this general statement, by reference to the commonly used tariffs. I have published illustrative examples and links to published tariffs.
It should be noted that 03 numbers are guaranteed to meet the requirements absolutely. This is due to Ofcom regulations to this effect, which have 100% compliance.
There is no other range of non-geographic numbers (not even 080) that can be shown to meet the requirements.
The BMA has offered guidance to its members (published here). It is free to do so, however this advice carries no authority whatsoever. It may also be relevant to understand that the advice is provided from a position of opposition to the intention of the measures.
The BMA GPC repeated states its policy that NHS patients should be required to pay to subsidise the cost of some GP telephone systems. This was proposed in the BMA submission to the Department of Health consultation on this subject and is repeated in the guidance issued after this proposal was rejected:
"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 comment is made with reference to the quality of communications service provided by the GP and can therefore only relate to charges made by the GP, as indirectly applied through use of revenue sharing telephone numbers.
This proposal, which would have required an alteration to the terms of the NHS Constitution or for specific parliamentary sanction to be granted, was roundly rejected.
As the BMA restates this policy position at the head of the guidance, it may be assumed that what follows is intended to assist members in evading the contractual provisions. By choosing to re-state its opposition to the measures at the head of the guidance, there can be little doubt as to the intention.
The BMA interpretation of the position of the Department of Health has not been endorsed by the Department of Health. The Department repeatedly confirms that there is nothing to add to what is contained in the published terms. The PCT must draw its interpretation from these alone.
The key element of the BMA guidance is the idea that an "assurance" about the relative cost of calling, offered by the provider of a telephone system to the practice, can show that the requirements are met. To those who understand that this company can have no influence over what the various telephone companies charge, this "assurance" is clearly seen as being totally worthless. One who has no competence to deliver on an "assurance" cannot be held to it.
If a practice can perhaps naively claim not to understand how telephone charges are set and thereby to have been adequately "satisfied" by a worthless "assurance", then it may claim to have fulfilled its duty under the terms of the GMS contract. I may be going too far if I were to accuse the BMA of seeking to deliberately mislead its members so that they can meet the requirement of being subjectively and falsely "satisfied" by a worthless assurance. This condition of "satisfaction" may however need to be corrected, if proven ignorance and stupidity on the part of the practice were to be considered valid ways of achieving compliance.
I have not yet seen any actual "assurance" about the relative cost of calling any specific telephone number. The text of this publication from NEG is often quoted, but it only contains a general offer to provide such an "assurance". (It also pre-dates publication of the actual terms of the revisions to the GMS contract!) The author seems to be very careful to refer only to what has been said to and by various parties, holding back from making any explicit statement that amounts to an assurance that could be used in a particular case.
If anyone has an evidence of such an assurance being provided in respect of a 084 number (without qualification that causes it to fail to meet the need for consideration of "the arrangement as a whole"), then I would be very interested to see it.
Just for the record, it may be noted that NEG uses Talk Talk as the provider of telephone service to its clients. Talk Talk charges its residential customers more than the cost of an equivalent call to a geographic number for calls to the 0844 numbers it provides to GPs, through NEG. Whilst NEG cannot control the cost of calling the numbers used by its clients and may not be fully appraised of what this is, one might expect its relationship with Talk Talk to be sufficiently close for it to be aware that the assurance it offers would not even cover patients who share the same telephone service provider as their GP.
Ofcom provides the essential facts:-
This subsidy enables the cost of the surgery telephone system to appear to be much less than it truly is. The payments being extracted from patients and used to meet expenses that properly belong with the practice are unseen, because they are obtained indirectly through the revenue sharing mechanism involving the two respective telephone companies. All that is visible to the practice is smaller charges for its telephone system than those to which it has committed itself, because it has been using payments by patients to make up the difference.
It is of course natural that the provider of a system will do all it can to prevent the true costs from being exposed. It is also natural that the practice would wish to take advantage of an opportunity to benefit from subsidy. NHS providers are not able to take advantage of financial contributions from NHS patients as a charge for accessing NHS services - even if paid willingly! If England remains within the NHS, this will continue to apply.
Some suggest that the terms of the contract only cover those charges which the provider of the number is able to predict or control. This is a total invention; there is no reference to any such limitation.
It is perfectly correct for NEG to say that it can do nothing about the cost of calls from mobiles. The GMS contract does not attempt to tell NEG, or anyone else, what to charge for telephone calls.
It simply tells GPs that they cannot use numbers that are expensive for callers. Because this means that they can no longer benefit from subsidy derived from high rates paid by patients so as make the NEG system seem cheaper than it is, then NEG must look to providing a more cost effective system.
The only range of non-geographic numbers which a practice may predict to be no more expensive to call than a geographic number is 03.
Under present regulations, which are intended to be withdrawn shortly, the pence per minute rates charged by BT for calls to 084/087/09 numbers are fixed. There is however no longer any enforced relationship with the cost of calling geographic numbers, as this is no longer regulated.
Although BT includes calls to 0845 numbers in some of its packages (e.g. Call Plans) they are excluded from others (e.g. BT Basic). Calls to 0844 numbers are invariably excluded from packages that cover calls to geographic numbers, by all providers.
The terms of the GMS contract clearly refer to the actual cost of telephone calls, without any qualification in respect of regulation or control of prices. Had it been intended that the requirements were to be limited in this way, then the whole exercise would be a waste of time, as there is so little regulation or control.
One must remember that it is perfectly natural for a telephone company to recover the cost of paying on a revenue share from callers. Furthermore, this is a fairer approach than that of recovering this cost from callers in general.
Anyone who seriously believed that GPs could benefit from a subsidy of their costs, amounting to up to 5p per minute on incoming telephone calls, without this cost having to be met by callers, must be guilty of a most unworthy degree of naivety or carelessness towards patients. (It is not for me to judge whether it is this foolishness, or a knavish disregard for the principles of the NHS that lies behind the decisions to get involved in this affair.)
The Contractor shall not enter into, renew or extend a contract or other arrangement for telephone services unless it is satisfied that ...
This is the provision (sub-clause 29B.1) which applies to those who did not have a non-geographic number in use when the variation notice was served by the PCT and acknowledged (the draft was published by the Department of Health in April 2010), or who may have renewed or extended use of such a number after that date. It stands for the future.
From that date (depending on how quickly PCTs served the notices) there should have been no more 084 numbers coming into use by GPs. Sadly that has not been the case.
This implementation date occurs before the deadline of 1 April 2011, by which those with such numbers already in use had to modify their arrangements.
Where the Contractor is party to an existing contract or other arrangement for telephone services under which persons making relevant calls to the practice call a number which is not a geographical number, the Contractor must ... before 1st April 2011, review the arrangement ... and ... take all reasonable steps ...
This provision (sub-clause 29B.2) is intended to bring all those currently failing to comply with the requirements that apply henceforward into line. A specific deadline is set, there is no provision for serving out the term of any existing arrangement, unless it cannot be varied.
Having been alerted by the BMA in January 2010, practices had up to 15 months in which to do the necessary work and take the necessary corrective action. With no advance notice prior to publication of the terms of the revisions in the necessary Statutory Instrument, PCTs were only engaged in this process for around 12 months. This nonetheless should have provided sufficient time to prevent what has occurred - the 1 April 2011 deadline has passed with most of the 084 numbers still in place.
Given that the review element was however largely seen to be flawed and inadequately reviewed, there is no reason why the necessary steps may not now be taken, even though the deadline of 1 April 2011 has passed.
Of the various "steps" suggested in sub-clause 29B.3, there is one which is relevant to most cases.
Many practices would defend their use of 084 numbers on the basis that they need to use the "network waiting" feature readily available with all non-geographic numbers. This feature provides an unlimited capacity for queuing up callers waiting to get through to speak to someone. Waiting callers are effectively held at the telephone exchange rather than at the surgery, whereby the number of callers kept waiting is limited by the capacity of the incoming lines.
Practices may be keen to retain this feature, or may indeed be contractually committed to continuing use of a system which depends on it. This would preclude migration to a geographic number, however migration to a 03 number, charged at the "Geographic Rate", is an option open in all cases.
All providers of network telephone service are known to permit customers to vary any existing contract, at any time, so as to migrate from any one type of geographic number to another. As calls to 03 numbers are charged at the same rate as calls to geographic numbers, 03 numbers fully meet the requirements. They obviously provide all of the same technical facilities as other non-geographic numbers.
If migrating from 084 to 03, a further facility is available to perhaps ease the process of changing number. The equivalent 034 number is reserved and available for use in every case. A number change could therefore take place by changing only the second digit of the number, e.g. 0844 477 1799 to 0344 477 1799.
I am not aware of any case where a network telephone service provider has refused a request for such a variation.
Migration from 084 to 03 involves giving up the financial benefit of the revenue share so that the practice would need to meet all of the costs of its chosen telephone system from the funding provided for the purpose. The subsidy at the expense of patients is lost.
One understands that a practice may be reluctant to give up this subsidy, and its system provider may be reluctant to see the true full cost of its system laid bare.
The vast majority of NHS GPs are able to fund their telephone service and other surgery expenses from the funding provided for the purpose. I see no reason why a practice that has chosen a very expensive telephone system and perhaps already benefitted from improper subsidy of its costs for some time should not now be ready to pay its own bills without financial assistance from patients.
The independence of GPs as businesses, with the consequent capacity to handle commercial and contractual issues, is celebrated. The skills of medical practitioners in general practice in England in dealing with contractual and financial issues in the best interests of their patients are to be exploited by the currently proposed reforms to the NHS.
The BMA's opposition to the principles of the NHS is noted, however I cannot see any reason for there being any problem in complying with the contractual provisions. Every practice must surely be competent to effect the necessary change to the arrangements for provision of telephone service, so that the interests of patients and the principles of the NHS may be upheld. If this relatively modest task cannot be accomplished, then GPs could never have been expected to take on the much wider responsibilities to which many have now signed up.
One must assume that these highly competent commercial operators were fully aware of the implications of the arrangements for telephone service to which they committed themselves. They are surely ready to apply the retained principles of the NHS to their dealings, as they are now required to do (albeit reluctantly). Indeed they should be able to do so without any intervention from "unnecessary layers of management".
If, despite taking all reasonable steps ..., it has not been possible to ensure that, having regard to the arrangement as a whole, persons will not pay any more to make relevant calls to the practice than they would to make equivalent calls to a geographical number, the Contractor must consider introducing a system under which if a caller asks to be called back, the Contractor will do so at the Contractor’s expense.
It is important to note that if compelled by this provision (in sub-clause 29B.4) to "consider introducing" such a "system", the GP has already acknowledged that its existing number fails the test set out earlier and has been unable (not unwilling, but unable) to vary the terms of the arrangement (i.e. to migrate to a 03 number).
After having considered introducing an automated system of collecting requests for call backs, most practices would be likely to decide not to proceed with introducing such a system, due to the considerable expense that would be involved. It would also seem to be quite improper to offer such a second class option for contact whilst direct contact was still available to those prepared to pay.
A system that was nothing more than a procedure whereby those answering calls would accept requests for a call back would also be highly inconvenient and expensive for both the practice and the caller. The caller would already have incurred most of the expense involved in any call by the time they got to speak to someone and in many cases making the arrangement for the call back would be likely to take as long as perhaps arranging the appointment, the only purpose for the call.
Given that there would appear to be no valid reason why a request to migrate to 03 should be refused, this provision is utterly worthless. Calling back is certainly NOT available as an alternative option for those who wish to retain an expensive number and comply with the terms of the contract.
One option suggested for those unable to comply with the revised terms is to terminate their existing arrangement for telephone service.
There may be some who are able to show that they entered into an arrangement on the basis that it enabled full compliance with the principles of the NHS - i.e. causing no charge to be levied on patient. If so, then they may be able to escape the imposition of penal early termination fees if seeking to terminate an arrangement for the provision of telephone service prematurely. That can only be a matter between them and their telephone service provider.
It is important to note that the only issue addressed by the provision is the telephone number used. Other aspects of an arrangement, e.g. a lease on locally installed telephone equipment, use of a particular software system on a local branch exchange are not covered. Costs incurred as a result of a decision to terminate such an arrangement cannot be linked to the need to comply with the requirements covering the telephone numbers used.
The fact that the practice may have chosen to fund these items through use of a revenue sharing telephone number, was a decision that it made freely. Income from the revenue share could have been used for any other purpose. If the practice was unaware of what it was doing then it may have an issue to raise with anyone responsible for having provided false information; that cannot however provide a basis for failure to now comply with its contractual duty to adhere to the principles of the NHS.
There are however two other possible terminations, not stated directly in the contract. The first is for the practice to terminate its contract with the NHS, on the basis that it needs payments from patients in order to provide its services. The other is for the publicly funded health service in England to opt-out from the NHS, on the same basis!
The Minister of State, Simon Burns, has clearly stated that it is PCTs who have the responsibility of ensuring that GPs comply with their contractual obligations; he has also stated that PCTs are to be abolished, because they are "unnecessary" (see this item). This is one of a number of indications that the publicly-funded health service in England is to terminate its association with the NHS. We await developments on this point.