PCN companies and the provision of ARRS
Justin Cumberlege, a Partner in the healthcare law firm Hempsons, considers points at issue in the provision of additional roles reimbursement scheme staff by primary care networks.
First published in Practice Management in September 2022.
As more primary care networks (PCNs) form companies to employ the additional roles reimbursement scheme (ARRS) staff, thought needs to be given as to how it will provide the staff in practice. You may have considered having the ability to
provide NHS pensions and to obtain Direction status, and probably the VAT implications, and setting up a cost sharing group.
More fundamental is where the responsibility and the liability for the employees lies. This will depend on the model used. Where the PCN company has been set up and the ARRS have been transferred to the company, they are often then placed back in the practices were they have always been.
What happens if a patient claims as a result of the actions of an employee? The patient is likely to consider that not only the employee may be liable, but also that the employer is ‘vicariously liable’ in the breach of the duty.
The PCN company may want to protest that the employee has never been managed or supervised by it, it has no say in the hours the employee works, or when they take annual leave. Therefore, the practice is liable. Is this a complete defence? Probably not, for so long as the company is the employer.
It therefore needs to think of the model it will use in the employment and supply of staff. If its role is beyond that of a recruitment consultant introducing potential employees to PCNs, it will have some liability, and it is important that is identified, the risks are managed, and insurance cover is in place.
As the employer there will be a liability, and in the first place you need to consider how the risks will be managed.
As an employment agency, the PCN company is at risk of being caught by the provisions of The Conduct of Employment Agencies and Employment Businesses.
Regulations 2003 made under The Employment Agencies Act 1973. These place extensive requirements on an employment agent, and a thorough understanding of regulations is necessary.
The alternative is to employ, and supervise, the employees and provide a health and care service (so the service is VAT exempt) to the practices.
In either case you need to ensure that the responsibilities of the PCN/practice and the PCN company are clearly set out in the subcontract, and sufficient insurance cover is put in place.
Indemnities should be obtained to cover a claim made by a patient as a result of care given by an employee. Also, indemnities to cover the event that an employee makes a claim against their employer, the PCN company, should be obtained.
A clear contract, which reflects careful consideration as to who is liable, is essential to ensure disputes are avoided, and the parties know and accept their responsibilities.