What is a force majeure clause?

A force majeure clause typically excuses one or both parties from performance of a contract in some way following the occurrence of certain events. Its underlying principle is that on the occurrence of certain events which are outside a party's control (for example a prison lockdown), the party is excused from, or entitled to suspend performance of all or parts of its obligations and so will not be liable for its failure to perform the relevant obligations.

Prison healthcare contracts

In a prison healthcare context, there are generally three primary care contracts:

  • Alternative provider medical services (APMS) for the provision of GP services
  • Personal dental services (PDS) for the provision of dental services
  • General ophthalmic services (GOS), for the provision of ophthalmic services

Various pieces of legislation mandate the majority of the content of APMS, PDS, and GOS contracts and there are national standard templates available for each.

Historically, in a prison context, these services would have been commissioned separately from three different providers. However, more recently, the trend has been to move to a prime provider/prime contractor model, which attempts to bring all these services under one provider roof (see our tips below if you are looking to set up this model).

How should force majeure be used?

Force majeure is a good example of a contractual boilerplate clause and provides the opportunity to bring contractual certainty to an otherwise grey area for the unique prison environment.

The standard APMS, PDS, and GOS contracts were not drafted with prisons in mind. In standard PDS and GOS contracts, an event of force majeure is very broadly defined as an event ‘caused by circumstances or events beyond the reasonable control of a party’. Whilst the standard APMS contract is more prescriptive, it nevertheless is also likely to include a prison lockdown within the concept of an event of force majeure, triggering the provider’s right to suspend all services.

This is helpful to providers but could be problematic for commissioners trying to secure the provision of healthcare services, albeit on a diluted basis, during a prison lockdown.

Commissioners are likely to require more sophisticated provisions to deal with prison lockdowns and may want to specify precisely what is required of providers during prison lockdowns, even expressly excluding them as events of force majeure.

The same is true of similar standard contract provisions which do not sit comfortably in a prison context; commissioners and providers might wish to take the opportunity to reflect the prison healthcare context in a more suitable and appropriate way within an overarching contract that brings together the mandated APMS, PDS and GOS contracts.

If you have any questions about this article or require any assistance in finalising contractual arrangements please do get in touch.

Tips when setting up a prime provider/prime contractor model

The main obstacle to overcome in the prime provider/prime contractor model is the PDS contract. Regulations mandate that a dentist must be on the board of the provider organisation in order for that provider to hold a PDS contract. Increasingly in a prison healthcare environment, independent sector providers (ISP) are securing contracts to deliver the full suite of primary medical services, but find that they stumble at the PDS hurdle.

There are various solutions to this problem, such as the ISP establishing a new company with a dentist on the board. However, generally speaking, ISPs will have a specific dental sub-contractor in mind when they bid for the contract to provide prison healthcare services. In this situation, the most common way to overcome the PDS hurdle is for this dental provider to enter into two separate contracts: one directly with the commissioner (as is required by dental regulations); and a second, tripartite contract, with the commissioner and the prime provider/prime contractor. This second contract, an overarching contract, will govern the relationship between the commissioner, the prime provider/prime contractor and the dentist.