Burnout: 4 legal issues to consider if one of your GP Partners “Burns Out”

Partner burnout is a growing problem for GPs – up to 50 percent are at high risk due to stress, high demands and funding cuts.

If one of your partners is suffering from stress, careful consideration should be given to these four key issues:

• Disability discrimination;
• Professional conduct, including patient safety;
• Partnership obligations as defined in the partnership agreement; and
• Fulfilling one’s obligations under the core medical services contract.

1. Disability discrimination

If stress results in a partner being unable to carry out their work properly on a long term basis, an Employment Tribunal may decide that the partner is suffering from a disability within the meaning of the Equality Act 2010.

The Equality Act says that dismissing someone or subjecting them to some other detriment because they have a disability, or otherwise failing to make reasonable adjustments to allow that person to remain engaged, gives rise to unlimited liability for disability discrimination.

GPs are usually aware that the Equality Act protects partners as well as employees. They can then bring or threaten disability discrimination claims where they feel that their colleagues have forced their retirement because of stress related illness or are trying to engineer their removal for this reason.

As set out below, appropriate support should be provided to any partner who is suffering from stress. This will prevent their condition becoming a disability and/or limit liability for discrimination, should it become necessary to terminate their engagement.

2. Patient safety

If at any time GPs have concerns that a colleague’s condition affects patient safety, they are obliged to act in accordance with their obligations to safeguard patient and the GMC guidance on Good Medical Practice. This states that you must ask for advice from a colleague (e.g another partner or GP at the LMC), your defence body or the GMC. If you are still concerned you must report the matter in line with GMC guidance.

All practices should have a properly drafted whistleblowing policy to ensure that guidance and laws relating to the disclosure of what is likely to be confidential information is adhered to, with legal advice also being sought in this regard.

It is essential that any report should be carefully documented in case your actions are later alleged to be discriminatory or you are accused of acting in bad faith towards your partner.

Providing there are no concerns about patient care, in the first instance the troubled partner should see their own GP or otherwise seek specialist professional guidance. It would be appropriate for the senior partner colleague who has responsibility for HR issues to address such matters informally (but confidentially) with the individual, keeping themselves appraised as to progress made.

3. Partnership obligations

In situations where the stressed partner does not seek treatment, or their condition continues or worsens, you should consider their rights and obligations as defined in the partnership agreement.

At the outset, when faced with a partner suffering from stress, you should be wary of relying on any provisions in the partnership agreement allowing for compulsory retirement due to absence or a failure to carry out duties. You should first establish whether the partner in question has a disability and what steps might be taken to limit liability in this regard.

An appropriate independent expert (not the partner’s GP) should examine the partner, and provide a report that sets out:

• A diagnosis;
• The condition’s effect on the partner’s ability to carry out their duties;
• A prognosis;
• The steps that might reasonably be taken to assist the partner.

An independent health report may recommend that a partner take periods of rest and then return to work in a phased manner. A failure to allow for this, even if a threshold set out in the partnership deed providing for compulsory retirement after a given period of absence is crossed, or a provision requiring that all duties are carried out is breached, could give rise to a claim under the Equality Act for failing to make reasonable adjustments to allow for the partner to remain engaged

If a medical report provides evidence that supports a retirement on ill-health grounds, the partners may discuss the possibility of voluntary retirement. In situations where this is not agreed and legal advice has been sought to confirm that compulsory retirement would not constitute unlawful discrimination, then the partners would wish to rely on a provision allowing for compulsory retirement after prolonged absence. It is common to allow for compulsory retirement after a period of absence of between 9 and 12 months. Practices with partnership agreements that do not include such clauses will be unable to retire a partner in this situation.

In any event, compulsory retirement may well give rise to a partnership dispute, notwithstanding the provisions of the partnership agreement. A well-drafted partnership deed will include provisions allowing for dispute resolution. Arbitration is often preferred over the courts as it provides confidentiality and can be quite flexible, but if part of the dispute alleges discrimination this will be heard in a public employment tribunal. Disputes where there is no partnership deed allowing for private dispute resolution, however, must be heard in the courts.

4. Medical services contract obligations

An important consideration when a partner is unwell is the implication for the GMS/PMS/APMS contract. If you seek to terminate the relationship by dissolving the partnership, you risk terminating your contract too, so it is critical to follow procedures for retirement (link to retirement checklist post) set out in a valid partnership agreement. In the current environment, dissolution would almost certainly lead to your contract being re-tendered, possibly even the possible closure of the practice. You could also be sued for breach of contract.

If a partner’s condition has given rise to fitness to practise concerns, this could lead to a suspension or erasure from the register. The full consequences of this lie outside the scope of this article but this would prevent a GP from being party to a core medical services contract.

It is critical that this is considered in the partnership agreement. Practices are advised to check that the partnership agreement takes account of the consequences of burnout, as the problem is growing.

As with any legal agreement, it is always advisable to seek the advice of an experienced legal team, who can help with your specific case and personal circumstances.

For more info about this, or any other legal issue relating to your practice, please contact Daphne Robertson on 01483 511555 or d.robertson@drsolicitors.com.