The Choice of Doctor General Medical Services Scheme was introduced in 1972 replacing the previous Dispensary System. Its introduction was undoubtedly one of the single most important developments ever undertaken within the Irish healthcare system. It marked a turning point in the provision of public general practitioner services that reflected broader changes in attitudes in Irish society.
In 1972, the contract for services under the GMS Scheme entered into by Health Boards and individual GPs was on the basis of fee per item. In 1989, after a major review and lengthy negotiations, the basis of payment switched to capitation. But the change ushered in under the new style contract went beyond remuneration issues. It was intended to represent a major evolutionary step in the nature of the GMS Scheme. In many ways, the entire history of the Scheme as reflected in contract changes provides a most informative insight not just into relationships between the parties to the contract but also to wider social, economic and public interest matters.
The actual contract is contained in Circulars issued by the Department of Health and Children reflecting and implementing agreements entered into by the parties to the contract. Only the parties to the contract can together change its terms. The exception to this is that, as with every contract, a Court can rule on any particular provision or the contract generally.
In 1966, the Government published a White Paper announcing the intention to make radical changes in the administration and operation of the health service, including the abolition of the dispensary system. The dispensary system had also been considered by Dail Select Committees on the Health Service in the 1960s where dissatisfaction was voiced about many of its aspects, in particular the lack of a choice of doctors for eligible persons.
The dispensary system had its origins in the Poor Relief (Ireland) Act 1851. It provided for basic medical care for the sick poor by a network of salaried part-time doctors -District Medical Officers- who were obliged to reside in a particular area and to treat eligible patients at a public dispensary. The blue card dispensary system was "part of the poor law system with all its characteristics of discrimination, harshness and frugality". Despite significant changes over time in its administrative structure and eligibility basis it retained a stigmatising character considered increasingly unacceptable in the Ireland of the 1960s.
The White Paper expressed the then Government's proposals on this service as involving "substituting for the dispensary service a service with the greatest practicable choice of doctor and the least practicable distinction between private patients and those availing themselves of the service".
Negotiations on the re-organisation of the State's public general medical system in line with the proposals in the White Paper commenced on 26 October 1967 between the Management side and the Irish Medical Association and the Medical Union.
The major issue between the parties was the method of payment to be introduced. Initially, the Government favoured a system under which there would be a flat comprehensive annual capitation payment for each person on a doctor's list. Both the medical representative organisations involved were required by resolutions of their members to seek payment on the basis of a fee for each item of service.
However, after long negotiations an agreement on the introduction of a fee per item scheme was concluded in June 1971 -the fees payables were intended to be comprehensive in nature, including as they did elements in recognition of practice expenses, superannuation, holidays, sickness etc.
The basic fee under the scheme at the time of its introduction was £0.80 where a doctor gave medical advice or carried out a medical examination or treated a patient. There was differentiation between domiciliary and surgery consultations as well as higher fees for services outside normal hours. There was also provision for fees for a range of specified services, such as second opinions, emergency fees and rural dispensing fees. There was an allowance for rural practices, a contribution towards locum and other practice expenses and grants for improving practice premises.
The dispensary system was finally abolished in the EHB on 31 March 1972 and the rest of the country on 30 September of the same year. It was immediately superseded by the general medical services choice of doctor scheme.
Reaction to the new scheme at its inception can be gauged from the Report of the Consultative Council on General Medical Practice (1973) which stated that ldquo;we regard the introduction of the revised general medical service as a major landmark in the history of social development in Ireland. It removes those aspects of the general medical service which tend to differentiate between those who paid their doctor directly and those for whom the State accepted responsibility.
The legislation enabling the introduction of the new Choice of Doctor Scheme is found in the Health Act 1970. Health Boards established pursuant to the Health Act 1970 are obliged by section 58 to provide general practitioner services free of charge to persons having full eligibility for health services as per section 45. Despite the numerous changes made to the Scheme since its introduction there was no necessity to amend the Health Act to so do until the introduction of automatic eligibility for persons aged 70 and over from July 2001. That required a change to the Health Act 1970 in the Health Miscellaneous Provisions Act 2001 which amended section 45 (entitlement to eligibility) of the 1970 statute.
In 1972, the Minister for Health made the Health Service Regulations 1972. The purpose of the Regulations was to specify the manner in which Health Boards would provide general practitioner services under the 1970 Act. Article 5(2) of the 1972 Regulations requires that, as far as is practicable, a person availing himself of the service shall have a choice of medical practitioner.
Article 5 of the Regulations provides that general practitioner services will normally be made available by each Health Board by way of agreements with medical practitioners under section 26 (1) in accordance with conditions specified by the Minister under that section.
By virtue the power conferred on him or her by section 26 of the 1970 Health Act and Article 5 of the Health Service Regulations 1972, the Minister is empowered to specify without additional recourse to statutory instrument the conditions governing the operation of the arrangements for the provision of services to be provided by general practitioners under section 58 of the Act. Health Boards do not have any discretion to disregard or refuse to comply with conditions so specified by the Minister.
The terms and conditions relating to the new choice of doctor scheme were contained in Circular 13 of 1972 issued to Health Boards called the Re-organisation of the General Medical Services Scheme. Since that time, the Department has issued many further Circulars to give effect to changes in the Scheme. (These are available on this website here.)
Under the GMS Scheme's governing legislation, Health Boards contract general practitioners to provide services to persons having medical card coverage as per the relevant terms and conditions of their contract. The employment relationship is therefore between the individual general practitioner and the Health Board rather than with the Department.
It has always been the intention of the parties that the contract should be regarded as being one for services rather than of employment. The former confers the status of independent contractor on the GMS Scheme GP, the latter confers employee status. However, in determining whether an employment relationship is one for services or of employment, the intention of the parties is only one aspect of the equation. The actual circumstances of the relationship in terms of control and benefits are also important determinants. Employment status has implications for contracted GPs in a number of practical areas, including taxation and the social welfare code.
In 2000, a case was brought to the Rights Commissioner Service by a (capitation) GMS Scheme doctor in the Midland Health Board area seeking to avail of certain rights under protective employment legislation. The Department of Health and Children sought a preliminary ruling from the Rights Commissioner to establish whether the person was in fact an employee (to whom the Act applied) or an independent contractor for services (and thereby outside the scope of the legislation). The Rights Commissioner found that the latter was the case as did Scope section of the Department of Social, Community and Family Affairs. (However, Scope Section advised that the nature of the capitation contract now had so many elements normally associated with a contract of employment that the distinction was no longer obvious.)
As most employment protection legislation is structured to protect employees rather than independent contractors, GMS Scheme GPs are therefore not covered unless either (i) referred to in any such legislation or (ii) succeed in having analogous terms extended to them as a result of negotiations between Management and the IMO.
The 1989 Contract provides
"The medical practitioner and the Board agree that any changes in the terms of such arrangements, which may be agreed between the Minister and the Irish Medical Organisation, shall be incorporated into this contract and the terms of this contract shall be construed accordingly following the issue of a statement of such agreed changes by the Minister".
As with all contracts, it is not open to one party to change unilaterally any term or condition. This was acknowledged formally by the Minister for Health and Children in the Dail in November 2002 when he stated "no term may be inserted into [the contract] unless it arises in the context of an agreement between the parties".
The setting of fees in relation to any service not encompassed by the GMS Scheme (or comprehended through another publicly funded programme) is a matter solely for the general practitioner concerned. The Minister for Health and Children and the Health Boards have no function in this area.
Equally, the terms of the Freedom of Information Act apply to records held by General Practitioners in relation to their medical card patients but not to their private patients. Data protection rules apply equally between private and public patients.
The Scheme allows medical card patients to choose their general practitioner from a choice of locally based contracted doctors. Patients may be assigned in certain instances but only in the circumstances specified in the contract. A GMS Scheme doctor will generally provide services to patients from his or her own premises. In some instances, the doctors may operate from Health Board premises. The latter situation might arise where the doctor, in question, does not have his or her own premises and the Health Board has such suitable premises. In this situation, private patients are also seen at these Health Board premises. Contracted doctors may also form or operate from group or partnership practices.
The place at which the contracted doctor provides services must be made known to the Health Board and meet certain standards and the Board may arrange with the contracted doctor for the inspection of these premises. The general practitioner is also required to inform the Board of the locations and times at which he or she will provide the scheduled contracted services and undertakes not to reside beyond reasonable access to the places of attendance he so indicates. As per the contract, a contracted doctor shall be routinely available for consultation for a total of 40 hours per week on five days or more by agreement with the Health Board. While material changes to places or times of attendance may only be made with the consent of the Board, the doctor enjoys considerable scope in choosing his or her scheduled hours.
The contracted doctor is also required to make suitable arrangements to enable contact to be made with him or her or locum/deputy outside normal hours for urgent cases. GMS Scheme doctors are free to make their own rota/locum arrangements. Rotas are usually organised by individual contracted GPs on a local basis on a mutually agreed basis. The Department and the Health Boards are, however, concerned to develop more structured out of hours arrangements and pilot Out of Hours GP Co-operatives are already established in the SEHB (CAREDOC) and the NEB (North-East Doc). It is proposed to develop these further throughout the rest of the country over the next year.
Contracted doctors also engage their own locums for relief purposes, for example, holidays, study leave etc. They may also employ practice support staff, for example, practice secretaries and practice nurses. The State provides substantial support for the employment of these support staff but the decision to recruit them is for the individual GMS Scheme doctor.
The 1972 contract required contracted medical practitioner to provide to his or her patients:
"all proper and necessary treatment of a kind usually undertaken by a general practitioner and not requiring special skill or experience of a degree or kind which general practitioners cannot reasonably be expected to possess."
Accordingly, the 1972 contract was a treatment based one only. The capitation scheme introduced in 1989 is frequently referred to also as a treatment based scheme but there is specific reference to preventative aspects being included:
"The medical practitioner shall provide for eligible persons, on behalf of the relevant Health Board, all proper and necessary treatment of a kind usually undertaken by a general practitioner and not requiring special skill or experience of a degree or kind which general practitioners cannot reasonably be expected to possess. This will include such preventive and developmental services as are currently provided or may be developed in the new style of practice which this agreement facilitates…."
The General Medical Services (Payments) Board is a body corporate established by Order of the Minister for Health under section 11 of the Health Act 1970. The Board consists of 14 members comprising one representative from each Health Board and three from the Department.
It is the duty of the Board to perform on behalf of the Health Boards the following functions in relation to the provision of services by general medical practitioners and pharmacists under sections 58 and 59 of the Health Act 1970:
The Units were established in 1994 as General Practice Units and are funded from the GP Development Fund. They are effectively a promotional and implementation link between the Department (in terms of policy) and general practitioners (on the ground). They seek to encourage best practice (where possible) from general practitioners and facilitate practice development through grant aid from Health
Communication between the Department and the Units is facilitated by periodic collective meetings and by an annual national seminar where the Unit administrators together with their Unit doctors, pharmacists and practice nurses attend to discuss a range of relevant practical and strategic issues affecting the Units. There is also ongoing contact regarding problem areas or matter of general interpretation.
Up until 1999, industrial relations matters were conducted directly between the parties: namely, the IMO and the Management side (which was effectively the Department, Health Boards and GMS Payments Board). Since then, the management side is represented by the Health Services Employers Agency.
The HSEA is a statutory based representative body for health service employers. It promotes the development of improved human resource practices within the health service and represents and supports employers in the management of industrial relations.
Apart from the central debate on who should have a medical card, the following are the major issues that have been to the fore throughout the history of the GMS Scheme:
As the 1990s came to an end, there was an increasing awareness among the stakeholders in the Irish healthcare system that it was timely to reconsider the role of general practice. Any major examination of general practice would inevitably have implications for the public provision of general practitioner services.
The IMO and the ICGP produced a Joint Vision Statement on the Future Development of General Practice (2000). The Health Board CEOs undertook their own review which was ultimately submitted to Government in March 2001.
The publication in November 2001 of the new National Health Strategy and Primary Care Strategies set out a vision of an integrated, quality based and patient-centred health service. The achievement of these goals required general practice to be much more integrated than previously.
At the same time, there was increasing pressure for wide- ranging and fundamental structural reform across the entire healthcare system. The Brennan Report (2003) and Prospectus Report (2003) outlined proposals for a radical shake-up in the way health services should be delivered.
A review of organizational structures of the GMS Scheme by Deloitte & Touche (Management Consultants) was carried out in 2002. The GMS Information Project was carried out in 2003 and looked at the contractual and information issues affecting the Scheme.
There have also been calls for a full re-negotiation of the GP GMS Scheme contract from a number of parties. All of the above will obviously impact on the GMS Scheme in the next few years.