Conflicts of Interest Commissioning, decommissioning, and the doctor / patient relationship Ben Troke & Jonathan Hayden Browne 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 benefit or 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 Jonathan Hayden