The Nuffield Trust Conflicts of Interest Ross Clark, Partner 8 February 2012for more information visit us at www.hempsons.co.uk
Introduction• The new healthcare landscape• Conflicts of interest• Case studies
The new healthcare landscape DoH Monitor CQC NHS CB Clinical P Networks A FT’s T Clinical CCG’s Senates I E GP Provider Groups NGP Practices T S Third Sector Health and Primary Care Wellbeing Boards Private Sector
Conflicts of interest• the Bill• Towards Authorisation• the Governance Framework• Towards Establishment• other guidance• commentary on conflicts
Conflicts of interest• The Bill: • Clause 24 of the Bill introduces a new Section 14 to the National Health Service Act 2006 which deals with CCG’s • Clause 14B refers to provisions about the constitution of a CCG contained Part 1 of Schedule 1, which include that the constitution must: • specify the procedure to be followed in making decisions • make provision for dealing with conflicts of interest of members • Secure that there is transparency about decisions and the manner in which they are made
Conflicts of interest• Towards Authorisation: • One of the six domains in the Towards Authorisation Guidance is that a CCG must have “proper constitutional and governance arrangements” in place • In describing this domain, the guidance states that CCG’s “must be properly constituted with all the right governance arrangements” but, again, is short on detail • However, two technical appendices to the guidance provide further clarification
Conflicts of interest • Technical Appendix 3 contains principal corporate governance arrangements, which include: • Robust systems and processes in place for effective decision-making and to manage conflicts of interest • Decision-making structures clearly set out in the constitution, to include an independently chaired audit committee • A scheme of delegation with underpinning processes to delegate decision-making to an appropriate level
Conflicts of interest • Technical Appendix 4 refers to the publication of a Governance Framework for CCGs which will consider: • Why good governance is critical • Developing a model constitution • The Accountable Officer and other lead roles • Managing conflicts of interest
Conflicts of interest• The Governance Framework: • was scheduled for publication in autumn 2011 but has not yet been produced (as such) • however, the Towards Establishment guidance focuses heavily on creating responsive and accountable CCGs and deals with a number of governance issues • whilst this is not made explicit, it will probably form the basis of the Governance Framework
Conflicts of interest• Towards Establishment: • CCGs “will need to demonstrate probity and governance commensurate with their considerable responsibilities for their patients’ healthcare and tax payers’ money” • to do this, CCGs will have to be “effective and safe public bodies that embody Nolan principles.” • However, within these parameters, CCGs are to have flexibility to determine the arrangements that they judge will enable them to be effective organisations
Conflicts of interest• Towards Establishment: • There is a lot of detail in this guidance but, in summary, CCGs will be expected to: • act transparently • manage conflicts of interest • have proper checks and balances in place to provide assurance that decisions are taken in a way that protects patients’ best interests • promote continuous improvements in quality • provide assurance that public money is well managed
Conflicts of interest• Other guidance: • The Nolan Principles: • Selflessness • Honesty • Objectivity • Openness • Leadership • Accountability • Integrity
Conflicts of interest • The Good Governance Standard for Public Services: • performing effectively in clearly defined functions and roles • promoting values for the whole organisation and demonstrating the values of good governance through behaviour • taking informed, transparent decisions and managing risk
Conflicts of interest • Commentary on conflicts: • RCGP / NHS Confederation publication “Managing Conflicts of Interest in Clinical Commissioning Groups” • BMA Publication “Ensuring Transparency and Probity”
Case Studies• Out of Hours Procurement • A CCG is going to tender the local GP OOH Service. • The CCG asks two GPs who work for the current provider to help it draft the service specification. • Is there anything wrong with this? • What if those two GP’s are also members of the Governing Body of the CCG and will participate in the tender assessment process?
Case Studies• Drug and Alcohol Procurement • A CCG is going to tender for Drug and Alcohol services. • A GP who has been nominated to sit on the assessment panel declares a conflict of interest on the basis that he holds one share in a potential bidder. • How should the CCG deal with this? • What if he held no shares but his wife (also a GP) held one share in a potential bidder?
Case Studies• Request from unsuccessful tender participant • An unsuccessful tender participant writes to the CCG shortly after the announcement of the award of the tender. • The participant requests details of: • the basis upon which the decision was made; • who participated in the decision making process; and • what other interests (if any) they declared. • How does the CCG respond and what are the key issues here?