Rao v Central Liverpool Primary Care Trust

A general practitioner’s statutory entitlement to General Medical Services remuneration is enforceable as a private law right. That entitlement may nevertheless be subject to equitable set-off where the health authority’s expenditure on providing services to the practitioner’s patients is so closely connected with the remuneration claim that it would be inequitable to enforce the claim without taking that expenditure into account. A doctor subject to regulatory conditions preventing personal provision of services may, in substance, be unable to provide those services. A claim for statutory remuneration does not, without more, establish a contractual relationship or support damages for breach of contract.

The claimant, a single-handed general practitioner, claimed unpaid General Medical Services payments and damages for alleged loss of earnings and pension rights. The defendant health authority had arranged locum and other services for his patients after the General Medical Council imposed conditions preventing him from practising single-handed and requiring supervised practice. His name was later removed from the medical list under regulation 7(2) of the National Health Service (General Medical Services) Regulations 1992.

The issues were whether the claimant was entitled to remuneration while unable to provide services personally, whether the defendant could set off the costs of alternative provision, whether removal from the medical list was lawful, and whether the claimant had a contractual or other private law claim for damages.

1. The claim was dismissed and judgment was entered for the defendant.

2. Following Roy v Kensington and Chelsea Family Practitioner Committee (1992) 1 AC 624, the claimant had a private law right to remuneration due under the statutory scheme. The right arose from the regulations and was enforceable in the courts, but the claimant failed to establish a contract with the defendant.

3. The claimant was not in a position to provide General Medical Services personally or to make effective arrangements through a locum because of the conditions imposed by the GMC. Those conditions had the effect of suspension in substance. The defendant therefore had to arrange and fund the provision of services to the patients.

4. The principles of equitable set-off, including those explained in Hanak v Green (1958) 2 QB 9, were satisfied. The defendant’s expenditure was closely connected with the claimant’s remuneration claim, and it would be inequitable to enforce the claim without regard to that expenditure. The expenditure exceeded the agreed claim of £68,767, so that claim was extinguished.

5. The defendant was entitled under regulation 7(2) of the National Health Service (General Medical Services) Regulations 1992 to remove the claimant from the medical list after he had provided no General Medical Services personally for more than six months. The removal was not artificially created by the defendant or Dr Mathie, and there was no entitlement to payments after removal.

6. The evidence did not establish any breach by the defendant. The claimant’s inability to practise resulted from his serious professional deficiencies, lack of insight and failure to make sufficient progress under supervision. Any claim for contractual damages, loss of earnings or pension therefore failed in any event.