Act fast if you receive a remedial or breach notice
Growing pressures on GP practices are leading to an increase in concerns raised by patients, the CQC and whistleblowers.
When these are investigated, commissioners have the authority to act against the contractor, including issuing remedial and breach notices.
These notices are becoming more common, cause significant stress, and may result in serious consequences for practices.
So, let us explore the procedure which is followed, how to respond to the notices, and the available options for challenging them.
Similar procedures apply to GMS contracts and PMS agreements. I will specifically refer to the former, but it is crucial to consult your LMC and legal advisors immediately if a notice is received under any primary care contract.
What are remedial and breach notices?
Remedial and breach notices are outlined in clause 26.13 of the contract. Although often used interchangeably, they serve different
purposes. A breach notice is issued when a breach cannot be rectified and is not serious enough to warrant immediate termination –
typically linked to a specific past incident.
A remedial notice is appropriate when the breach can be corrected. It serves as a serious warning but also as an opportunity to implement corrective actions and prevent future issues. Depending on the situation, both types of notices may be issued.
A remedial notice must include the breach details, the steps required to remedy it ‘to the satisfaction of the Commissioner,’ and a
timeframe – usually 28 days. However, this period can be shortened if there are concerns about patient safety or significant financial loss.
The consequences of receiving a notice
Failure to comply with a remedial notice may result in the termination of the contract by the commissioner, and if the breach is remedied but then repeated, it may result in a termination.
Alternatively the commissioners may consider contractual sanctions in accordance with clause 26.16. These include withholding or deducting money payable under the contract.
It is therefore essential that a practice receiving a remedial or breach notice should take immediate action.
What to do if you receive a remedial or breach notice
In both scenarios the first step is to identify the alleged breach and ascertain whether this can be challenged. An investigation should
have been completed by the commissioner, and under clause 26.19 of the contract, the commissioner must consult the LMC before issuing a notice. The contractor should therefore be aware of the issues and the notice should not be a surprise.
If the contractor disagrees with the breach determination, legal advice is recommended to help challenge the decision. Even if the breach is acknowledged, the contractor may dispute the procedure or details within the notice. It is important to engage constructively with the commissioner and address the underlying issues.
Breach notice
If a breach is served it may be challenged on the basis that the breach could be remedied, and so a remedial notice would be the appropriate one.
While this would place an increased obligation on the contractor to take remedial steps this procedural challenge could provide the time and opportunity for the contractor to find a solution to the problems it faces and avoid a further notice being served.
Remedial notice
For remedial notices, the contractor must assess whether the notice complies with the contract’s requirements. It should provide clear, actionable steps.
Vague or open-ended instructions are inappropriate, as they can lead to prolonged and unnecessary action being taken or in a worst case scenario, set the contractor up to fail.
Both parties are obligated to act in ‘good faith’ and ‘reasonably’ under clauses 2.1.4 and 2.1.5. An inadequate notice may breach these obligations.
If there are concerns about the notice, legal advice is advisable, but it is also important to submit a factual response and seek clarification.
Given the tight timeframes and potentially significant workload, early understanding of the breach being complained of and establishing clear communications with the ICB primary care team is critical.
How can notices be challenged?
While clause 26.18 outlines a process for challenging termination notices, there is no specific procedure for challenging remedial or
breach notices. These fall under the dispute resolution process in part 25 of the contract.
This begins with a local resolution procedure, which must be exhausted before escalating further. The local procedure in clause 25.1,
requires both parties to ‘make reasonable efforts to communicate and co-operate with each other with a view to resolving any dispute.’
Commissioners typically have a local policy outlining escalation steps.
At this stage, the contractor must present a strong case to ensure their challenge is understood. While lawyers may be asked to
help, anyone can submit a challenge.
It is important to consider that this is likely to be the basis of any later submissions to the court or to NHS Resolution, and it may not
consider matters that were not raised at this initial stage.
Concerns about impartiality and fairness are common but must be substantiated. Personal attacks should be avoided. Most disputes
are resolved through communication and meetings, though some may escalate to board or committee levels, where the contractor may not be permitted to attend. The LMC may participate in these discussions.
If the issue remains unresolved, the contractor must decide whether to escalate further and first needs to determine whether the contract is an NHS contract. Clause 3.1 should state this.
If the contract is an NHS contract, the dispute must be referred to NHS Resolution in accordance with the NHS dispute resolution
procedure, which represents the Secretary of State and is able to make determinations.
Most cases are decided on paper, although complex matters may involve hearings. Contractors must decide whether to represent
themselves or appoint legal advisers, potentially including a barrister.
NHS Resolution’s decisions are final and binding, although they may be challenged by seeking a judicial review on specific grounds, as
established in the Court of Appeal decision in R (Shashikanth) v NHS Litigation Authority [2024] EWCA Civ 1477. While judicial review is beyond this article’s scope, it remains a potential final recourse.
If the contract is not an NHS contract, the contractor may still use the NHS dispute resolution procedure or pursue a claim in the
courts. The appropriate legal route depends on the dispute’s nature. Court proceedings are both expensive and lengthy but may be suitable for severe, complex legal issues requiring judicial input.
Don’t forget the patients!
Most disputes are resolved using the local procedure and only the most serious matters escalate further. Every challenge must be assessed on a case-by-case basis.
At all times, the Contractors must remember that their core focus must be on the delivery of services to their patients. Working with the Commissioner’s requirements, and liaising with them, is likely to be more beneficial in the long run. Relationships become very fraught but a beneficial outcome is often achieved by engaging with the procedure, and resolving matters, rather than to challenge on technicalities.
However, this cannot simply be achieved; and it is important that you obtain the support from appropriate experts at the earliest opportunity to avoid the worst case scenarios of facing sanctions or potentially losing your Contract and your livelihood as a GP partner.
First published in AISMA’s Summer 2025 edition.