There is continued debate around the potential conflicts of interests that will arise for GPs as a result of their new commissioning function introduced by the Health Bill.
The Bill envisages that SHAs and PCTs will be gradually phased-out, and GPs and other health care professionals will be responsible for commissioning healthcare services by April 2013 in clinical commissioning groups (CCGs), formerly GP consortia.
In many parts of the country, GP commissioning is already underway under the government’s pathfinder project.
Since the initial introduction of the Bill in January 2010, a new Clause 140A has been added which provides:
- Each… (CCG) must exercise its functions so as to ensure that any conflicts of interest, and personal and prejudicial interests, are dealt with.
- The secretary of state must issue guidance on how conflicts of interest and personal and prejudicial interests should be dealt with by… (CCGs) as part of their decision making.’
No guidance has been forthcoming from the DoH as yet. However, the RCGP and BMA have issued guidance.
RCGP Guidance – Managing conflicts of interest in clinical commissioning groups (September 2011)
The RCGP is presently developing broader, ethically based guidance. Current guidance can be found in the recent joint paper by the RCGP and NHS Confederation which identifies circumstances where a conflict may arise, which included:
- A member of a CCG or his/her family member who is a director or shareholder of an organisation doing business with the NHS.
- A commissioner could have a special interest in a particular condition or treatment due to his/her own experiences.
- Other non-financial incentives such as personal commitments to friends, colleagues and peers.
Conflicts of interest are to be expected and the RCGP considered that such conflicts are not necessarily a ‘bad thing’. CCGs will reflect the wealth of experience GPs can offer to the commissioning process.
For example, some GPs may have acquired experience working with a provider organisation that has been doing business with the NHS. There is, however, a need to maintain public confidence against actual (and perceived) conflicts of interest whilst ensuring the process of managing conflicts of interest does not become too complex or protracted.
The RCGP guidance focuses on the need for effective forward planning by CCGs: to foresee circumstances where a conflict may occur and to put mechanisms in place to manage the conflict. The guidance suggests that a CCG may borrow from principles used by NHS trusts and other public bodies to manage conflicts of interests. In particular:
- To develop a clear statement of conduct such as those used in the Nolan Principles of Public Life.
- For all members to declare their interest when joining the CCG and by maintaining a register of interests which is updated regularly.
- Specific conflicts pertinent to a particular meeting must be declared at the start and then recorded in the minutes. The CCG should develop a policy to address whether an interested person should have conditional participation, total or partial exclusion from the decision-making process for that particular matter.
- Procurement and contracting procedures should comply with good practice.
BMA -Ensuring Transparency and Probity (May 2011)
The BMA suggests more stringent guidelines and places most emphasis on conflicts of interest relating to financial matters:
- Directors of provider healthcare organisations or GPs with a significant financial holding in the organisation should not be part of a CCG if there is already a contract in place, or they are likely to enter into a contract with that CCG at some stage.
- The CCG’s accountable officer must be informed of member’s interests 28 days after the member takes office or within 28 days after any change to the members’ registered interest in a publicly available register.
- Members with a personal interest in a particular matter can remain in a meeting but are not allowed to speak unless the accountable officer and a quorate deem their interests as not prejudicial.
- The test of what is considered a ‘prejudicial interest’ should be addressed according to the standard of a member of the public with knowledge of the relevant facts.
- GP commissioners can still refer patients to a provider company in which they have a financial interest if they consider the patient’s best interests and current practice relating to disclosure. The same principles should be considered when addressing the allocation of any ‘quality premium’ to individual GPs or practices.
In certain circumstances it may be appropriate to use an independent body to verify decisions of the CCG to ensure independence, for example a large percentage of the CCG are affected by prejudicial interests. CCGs may also wish to provide training to their members relating to conflicts of interests.
It appears that the implications for conflicts of interest were not given due consideration in the Bill, despite earlier warnings that such conflicts would arise.
The DoH is expected to issue guidance on the constitution of CCGs shortly. It would be prudent for CCGs is to follow the guidance issued by the RCGP and BMA. Although, their guidance is not legally binding their practical considerations will be influential and it is likely to inform any later guidance issued by the DoH.
- Alun Griffith is a partner in the independent health team at law firm Hill Dickinson LLP.