Clinical Commissioning Groups (CCGs) are required by virtue of the National Health Service Act 2006 to make arrangements for managing conflicts of interest and potential conflicts of interest to ensure that they do not effect or appear to effect the integrity of the CCG’s decision making processes.
In addition, Regulation 6(1) of the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 (the Procurement, Patient Choice and Competition Regulations) prohibits commissioners from awarding contracts for NHS healthcare services where conflicts, or potential conflicts between the interests involved in commissioning such services and the interests involved in providing them affect or appear to affect the integrity of the award of that contract.
The opportunity offered by NHS England to CCGs to take on responsibility for the co-commissioning of primary care means CCGs are exposing themselves to greater risk of conflicts of interest both real and perceived.
NHS England issued on 18 December 2014 revised guidance “Managing conflicts of interest: Statutory guidance for CCGs” which supersedes previous conflicts of interest guidance issued in March 2013. The revised statutory guidance specifically addresses conflicts of interest relating to the co-commissioning of primary medical care as well as conflicts of interest issues that may arise in connection with procurement.
The revised guidance also builds on guidance from other national bodies, in particular Monitor’s guidance on the Procurement, Patient Choice and Competition Regulations and also includes at Annex 5, ten key questions to act as a prompt for CCGs in considering key issues when reviewing their current arrangements for managing conflicts of interest.
CCGs may already have reviewed and amended provisions in their constitutions dealing with conflicts of interest to take account of the revised conflict of interest guidance, as part of the process for approval of amendments to their constitutions, particularly if they have chosen to engage in joint or delegated models of co-commissioning.
However, all CCGs must have regard to the revised guidance and be prepared to explain why they have not followed it. In addition, the revised guidance states that CCGs who take on delegated or joint commissioning, will be required through their audit committee chair and accountable officer, to provide direct formal attestation to NHS England that their CCG has complied with the revised guidance. In the future, such attestations will form part of an annual certification.
CCGs need to ensure that they identify and manage potential actual conflicts from the outset. Failure to do so could lead to a complaint to Monitor or a challenge in the courts that a conflict of interest has affected the integrity of any contract award, possibly resulting in the suspension of a procurement process, having to abandon and re-run it and possible damages claims. Challenges either through the courts or as a result of a complaint to Monitor are becoming increasingly common and even if unsuccessful, can result in delays, disruption and legal costs.
NHS England’s publication of the revised conflicts of interest guidance comes at a time when more than half of CCGs are reported to have submitted detailed plans to co-commission primary medical services and when CCGs will be considering what to do about community services as contracts entered into as part of the Transforming Community Services programme are about to expire. The revised guidance is a timely reminder that the management of conflicts of interest should be at the forefront of CCGs’ minds.