Update: Shashikanth Case and GP Practices opting to be an NHS (Health Service) Body or not
Written: 09 March 2025
Many colleagues will have seen the recent publicity around the recently announced Shashikanth judgment, and we are writing to all colleagues to clarify the issues involved.
Health Service Body or Non-Health Service Body
All GP practices (whether holding a GMS or PMS Contract) can choose whether, for the purpose of their contract, they are considered to be a health service body or not. This is included within the standard GMS contract as below:
PART 3
3.1. NHS Contract (footnote 16)
The Contractor has [not] elected to be regarded as a health service body for the purposes of section 9 of the 2006 Act. Accordingly, this Contract is [not] an NHS contract. (footnote 17)
(see explanatory footnotes 16 and 17)
(footnote16) If the Contractor has elected to be regarded as a health service body for the purposes of section 9 of the 2006 Act pursuant to regulation 10 of the Regulations, then the Contract must state that it is an NHS contract: see regulation 14 of the Regulations.
(footnote 17) Where the contract is an NHS contract, it is not enforceable in the courts but instead is subject to the dispute resolution procedures set out in clause 25.3 of the Contract and paragraph 41 of Schedule 6 and Part 12 to the Regulations. Therefore, the Contract must specify whether or not the Contractor has elected to be regarded as a health service body, and if it has, the Contractor must indicate that the Contract is an NHS contract.
The implication of this decision is that, if a practice decides to be a health service body, then the contract (whether GMS or PMS) is an NHS Contract. This means that contract disputes will have to be dealt with through the NHS dispute resolution process specified in the contract, which if local resolution fails, means the dispute will be decided by NHS Resolution (NHSR) (formerly known as the NHS Litigation Authority). There is no alternative. NHSR will be more familiar to GP colleagues for its role in administering the Central Negligence Scheme for General Practice (CNSGP).
If the practice decides to be considered as non-health service body, it has the choice of either using the NHS dispute procedure (as described above) or litigating in the Courts in relation to any particular dispute.
Shashikanth court case
The Shashikanth case related to Dr Shashikanth’s decision by a CCG (as the commissioning body at the time) to terminate his GMS Contract following a dispute over participation in the PCN DES and associated sharing of patient related data. Dr Shashikanth’s practice, although having opted to be a non-health service body, decided to go through the NHS dispute resolution procedure.
The High Court found that the decision of NHSR (through an adjudicator) was made in error. However, despite this, it held that the decision could not be challenged by judicial review because it did not involve the exercise of a public function. This meant that Dr Shashikanth could not challenge the decision even though it was made in error.
Dr Shashikanth appealed this interpretation to the Court of Appeal and his case was supported by the BMA. The Court of Appeal reversed the decision of the High Court, holding that GMS Contract holders, whether or not they have opted to be non-health service bodies, have the right to seek a judicial review of decisions made by NHSR.
The full judgment is available at:
Implications of the Shashikanth judgment
In terms of GP practices’ decision whether to be a health service body or a non-health service body, this decision now clarifies that practices have more options by opting to be non-health service body. This means that, if a dispute occurs, they can choose to have the matter considered either through the NHS dispute resolution process or in the courts. Health service bodies are restricted to the NHS dispute resolution process.
The LMC recommends GP practices review their contracts to see if they have decided to be a health service body or not. At this point, the LMC recommends all practices opt to be considered as non-health service body because this gives maximum discretion in terms of their options if a dispute occurs. If a practice is currently a health service body, this can be changed at any time by writing to your ICB Contract Managers. Practices are recommended to save the ICB’s confirmation of this changed status.
In all cases where a GP practice believes a dispute exists between itself and the commissioners, both parties should make reasonable attempts to resolve the matter(s) before moving on to a dispute resolution process. The Contract specifies that both the practice and the commissioners may ask the LMC to support such actions, which the LMC will always do. (See Section 25 of the Standard GMS Contract, PMS Contracts have equivalent provisions).
This is distinct from disputes within the Partnership, where the commissioners have no formal role.
We hope this background is helpful. The LMC has written to each ICB as in Appendix A to this letter.
Dr Julius Parker, Chief Executive
Appendix A - letter to ICBs re:GP Contracts: NHS Body/non-NHS Body Status
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Updated on Tuesday 11 March 2025
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