Something which we are constantly being asked to advise on at the moment is conflicts of interest. Whether it be advising on the steps to take in commissioning particular services (especially where member practices have an interest in providing that service), or reviewing CCGs’ policies, there is no doubt that this is a hot topic for CCGs. Here are a few key points for CCGs on this issue:
- When commissioning a service, make sure that you consider and manage conflicts from the outset. You need to be thinking about conflicts from the planning and service design stages right through to the decision as to which provider will be used. It is not just the contract award decision but the integrity of the whole decision-making process that must be unaffected by conflicts (or potential conflicts).
- Don’t forget that the conflicts of interest rules are spread across a number of places and that CCGs need to comply with all of those different rules. This means complying with section 14O of the NHS Act 2006, your Constitution, your conflicts policy and the NHS (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013, as well as having regard to NHS England’s guidance on conflicts.
- Each CCG should have in place a conflicts policy and ensure that it complies with this. We are aware that a lot of CCGs have not finalised their conflicts policies yet. If you do not have a policy in place, this should be addressed.
- Be aware that included among the various registers of interests that CCGs must maintain and publish, is a register of the interests of CCG employees. Several CCGs we have spoken to have been unaware of this requirement and have focussed only on CCG members and the Governing Body.
- Whilst we advise erring on the side of caution in declaring and managing conflicts, it is also worth highlighting that the rules do not require conflicts to be eradicated and do not mean that, for example, it would not be possible to commission services from providers in which CCG members have an interest. The key thing is managing the conflicts appropriately and taking steps to ensure that the decision ultimately stands up to scrutiny. We have been doing lots of work with CCGs to guide them through this process so that their decisions should be defensible if challenged.
- Where there is a conflict or potential conflict between the interests in commissioning and providing a service, take extra care to comply and to demonstrate compliance. The CCG needs to be able to show how it managed the conflict, as well as demonstrating that the decision is robust and in the interests of patients. There is additional guidance from NHS England on this issue. External scrutiny is also particularly helpful in this area, to demonstrate that a decision is robust.
- Be aware of the provisions in the model CCG Constitution (and, therefore, probably your own Constitution) that relate to CCG contractors having conflicts. These include a requirement to include provision on conflicts in their contracts.
- Finally, we advise looking out for further (or updated) guidance in this area. For example, Monitor’s guidance on compliance with the procurement, patient choice and competition regulations is currently only in draft form.