Viewpoint - When commissioners' interests clash

Ross Clark advises groups not to panic and to wait for the provisions ultimately included in the Health and Social Care Bill.

GP commissioners' practices could provide GPSI services, such as dermatology (Photograph: JH Lancy)
GP commissioners' practices could provide GPSI services, such as dermatology (Photograph: JH Lancy)

Despite a proliferation of articles and opinion on conflicts of interest for GPs, so far there has been no official guidance and none is likely until – probably in 2012 - the Health and Social Care Bill is passed.

So if you are the one responsible for your clinical commissioning group’s (CCG’s) constitution and more importantly how it might be applied, do not despair. 

The only clear, specific requirement at this stage is that a CCG must exercise its functions so as to ensure that any conflicts of interest and personal and prejudicial interests are dealt with. 

All the key opinion-formers writing on this topic can be seen as influential (to a lesser or greater extent), but opinion is not binding. Their different views are simply adding to GPs’ confusion around what the precise requirements of the Bill will ultimately be. 

We will simply have to wait to find out. 

Bill amendment
The Health and Social Care Bill will resume its progress through Parliament on 3 September when it reaches its report stage. At the Bill’s committee stage before the summer recess, several notices of amendments were issued. However there was only one change relevant to conflicts of interest. Issued on 2 June this states that:

  • Each CCG must exercise its functions so as to ensure that any conflicts of interest and personal and prejudicial interests are dealt with.
  • The health secretary 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.

Meanwhile, in my view the organisations making the most interesting (and possibly influential) contributions to the debate are the RCGP (jointly with the NHS Confederation) and the BMA.

RCGP/NHS Confederation viewpoint
The RCGP/NHS Confederation publication Managing Conflicts of interest in Clinical Commissioning Groups sets out some draft principles that GP commisisioners might adopt while recognising there is nothing inherently wrong in having conflicts of interest. It states that trying to avoid or eliminate them entirely is unlikely to be possible or desirable.

These draft principles include:

  • Being clear on what is acceptable before individuals are elected.
  • Inducting members properly to the CCG board.
  • Agreeing in advance how a range of different situations and scenarios will be handled.

The document also raises some policy questions over matters such as who will monitor and assess CCGs on how they are managing conflicts. And whether healthcare professionals should be made to choose explicitly between pursuing a commissioner or a provider role.

BMA viewpoint
The BMA’s Ensuring Transparency and Probity guidance takes a more robust approach, starting with the concept that ‘the taint of conflict of interest is almost as damaging as the reality’ and that there is ‘a real risk that a doctor’s probity may come into question’.

It suggests CCGs put in place clinical and corporate governance structures to ensure that the process around commissioning is sound and strong and in line with specific principles:

  • Directors of provider healthcare organisations or GPs with significant financial holdings in them should not be on a consortium management board at all if there is already a contract in place or if there is any likelihood of a contract with the CCG concerned.
  • CCGs should maintain a register of interests of all members who must declare if they have a personal interest and its nature before the matter is discussed or as soon as it becomes apparent.
  • Members who declare a personal interest will be able to remain in a meeting but not to speak [or vote] on the issue unless their interest is deemed not prejudicial by the CCG’s accountable officer, as confirmed by a vote of the other members present that the interest is not prejudicial. Such members may not vote on the issue under any circumstances.
  • Where the most appropriate service for a patient referral is one in which the GP has a vested financial interest, the GP must tell the patient this.
  • Any commissioning decisions where there is a conflict/ likelihood of conflict should automatically be referred to the CCG’s oversight and scrutiny committee (or equivalent body) for verification and to ensure the decision is fair and appropriate.
  • Ross Clark is a partner at specialist medical solicitor Hempsons (www.hempsons.co.uk), focusing on CCGs

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