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Conflicts of Interest
Commissioning, decommissioning, and the doctor / patient relationship
Ben Troke & Jonathan HaydenBrowne Jacobson LLP
Lawyers…
Conflicts at CCG level
• Managing conflicts is not a new problem either in the NHS or private sector
• … but how CCGs handle conflicts will be closely scrutinised
• Note recent coverage of Virgin (formerly Assura)• What is a conflict of interest?
No statutory definition of a conflict of interest, but model CCG constitution contained an example
Conflicts at CCG level
• Model CCG constitution example conflict of interest definition contained the following categories:– Direct pecuniary interest– Indirect pecuniary interest– Non-pecuniary interest– Non-pecuniary personal benefitor situations where a person is a friend of, or in
relationship with, anyone in any of the above categories
Conflicts at CCG level
• CCG’s constitution must specify its arrangements regarding registers of interests and management of conflicts (and potential conflicts) of interests
• Includes a requirement to: “make arrangements for managing conflicts and potential conflicts of interest in such a way as to ensure that they do not, and do not appear to, affect the integrity of the group's decision-making processes”
Conflicts at CCG level
• CCG must comply with:– Forthcoming procurement, choice, competition
and conflict regulations (consultation for which closed on 26 October 2012)
– generally accepted principles of good governance, inc Nolan principles
• CCG must also have regard to NHSCB guidance
Conflicts at CCG level
• Nolan Principles– Selflessness– Integrity– Objectivity– Accountability– Openness – Honesty – Leadership
Conflicts at CCG level
• CCG’s arrangements regarding conflicts will be publicly available
• … as will its registers of interests• CCG must maintain registers of the interests of—
– the members of the group,– the members of its governing body,– the members of its committees or sub-committees or of
committees or sub-committees of its governing body, and
– its employees.
Conflicts at CCG level
• How are those registers compiled?• Declarations of conflicts (and potential
conflicts) of interest– Periodic and when arise
• Regular review of registers
Conflicts at CCG level
• Once interests declared and recorded they must also be managed
• Managing conflicts (and potential conflicts) of interests– Limit involvement / withdrawal (NB recent guidance on managing conflicts
where GP practices are potential providers) – Remember the need for quorum
Conflicts at CCG level
• Statutory requirement • NHSCB guidance and forthcoming regulations• Good governance principles inc Nolan principles• Conflicts and potential conflicts• Perception of wrongdoing or impairment can be
as detrimental as actual – if in doubt, disclose!• Remember the need to comply with
procurement law and policy too
The challenge
• Decommissioning = More challenges & scrutiny
Demand, expectations and entitlement
What does the NHS provide?
– Secretary of State must provide throughout England, to such extent as he considers necessary to meet all reasonable requirements
– hospitals, medical services etc … as he considers necessary
NHS Act 2006 s3 duty of Secretary of State
What will the NHS provide?
– A CCG must arrange for the provision of the following to such extent as it considers necessary to meet the reasonable requirements of the persons for whom it has responsibility
– hospitals, medical services etc … as it considers necessary
Amended NHS Act 2006 s3 duty on CCGs
Managing expectations
GMC guidance
• GMC Guidance– “Make the care of your patient your first
concern”– “protect and promote the health of patients
and the public”
– always had a duty to take account of resources and “distributive justice”
Quality premium (NHS Act 2006, s223K)
• “Payments in respect of quality”• “Improvement in quality” may trigger
payment• Removes advance payment provision• Regulations may provide for how to spend it,
including distribution to GP members• CCG “must publish an explanation of how the
consortium has spent any payment…”
How to not get sued ?
The power of “Yes!”
Summary
• Conflicts are inevitable• Focus on managing them not just trying
(unrealistically) to avoid them• Law and Guidance offers support and
protection• Managing patient expectations is critical• Doctor / patient relationships and public
perception are the battleground, but are also your best defence
Medicine, Money and Law …
Questions
Contact details:
Ben Troke 0115 976 6263 [email protected]
Jonathan Hayden 0121 237 4551 [email protected]
