A systemic conflict of interest? (CCGs)

On April 1st, all around England, the new Clinical Commissioning Groups (CCGs) will formally come into being and will henceforth be spending millions of pounds of public money on health care services. This role was fulfilled by Primary Care Trusts before. CCGs are a big part of the Government's NHS reforms. The stated purpose of the CCGs is to put General Practitioners in the driving seat of shaping health services to meet the health care needs and wishes of local people and patients.

However, a recent article (Many GPs have interests in private firms in PublicService.co.uk) begins with this paragraph:

Marketisation' and privatisation of the NHS are back in the spotlight after a study has claimed to have revealed potential conflicts of interest because 36 per cent of GPs running clinical commissioning groups (CCGs) have connections with private companies.

And so I got to wondering what the situation was in my locality...

In our locality, this role will be fulfilled by the Aylesbury Vale CCG, details of which can be found here: www.aylesburyvaleccg.nhs.uk/unitedcomm. Eight members of the Board of this new body have declared interests in a variety of other organisations and property. Two of these eight people (Dr Karen West, Executive Clinical Lead and Dr Graham Jackson, Chairman of the CCG) have declared that they have shareholdings in a company called Vale Health.

What is Vale Health? On the website of Vale Health (www.valehealth.co.uk), it states that "Vale Health Limited was established in 2006 as a for-profit, limited company to exploit the very real, significant and arguably unique business opportunity created by practice based commissioning conferring great advantage on general practice" and "since 2007 Vale Health Limited has been providing a range of NHS clinical services for the people of Buckinghamshire".

The website also goes onto say that "Vale Health intends to work with the General Practice Commissioners and position itself at the heart of the effort to change the way services have hitherto been delivered"

I have added some highlighting there.

So, two main board members of the new NHS commissioning body for our area have shareholdings in a profit making company that will (almost certainly) be bidding for contracts from the same body.

Now, there are published arrangements around handling conflicts of interest: there is a 14 page policy accessible here. This policy states, for example:

At meetings – at the start of each meeting, all attendees will be asked to declare any interest they have in any agenda item before it is discussed or as soon as it becomes apparent. Even if an interest has already been declared in the Register of Interests, it should be declared in meetings where matters relating to that interest are discussed. Declarations of interest will be recorded in the minutes of the meeting as well as being included on the register. If the withdrawal of a CCG member has the effect of rendering the meeting in question inquorate, the chair reserves the right to adjourn and reconvene the meeting when appropriate membership can be ensured.

If 'the chair reserves the right...' (and I have already established that the Chairman has a shareholding in what could be a key bidder in a procurement process) will the Chair always exercise this right? I would contend that the policy should say "If the withdrawal of a CCG member has the effect of rendering the meeting in question inquorate, the chair must adjourn and reconvene the meeting when appropriate membership can be ensured and quorum established"

The policy goes on:

7. Declaration of Interests in relation to procurement

Where a relevant and material interest or position of influence exists in the context of the specification for, or award of, a contract the Committee member will be expected to:

• Declare the interest;
• Ensure that the interest is recorded in the register;
• Withdraw from all discussion on the specification or award;
• Not have a vote in relation to the specification or award.

Members will be expected to declare any interest early in any procurement process if they are to be a potential bidder in that process. Failure to do this could result in the procurement process being declared invalid and possible suspension of the relevant member from the CCG.

So it would seem that two of the eight main board members may well have to absent themselves from all discussions (assuming that is what 'withdraw from all discussion' means rather than just stay quietly in the room) in many of the procurement processes (which is huge part of the work of CCGs, I would add).

Is that good governance when a quarter of your decision making capacity, including the Chairman has, to 'step outside the room' on a regular basis? Since agendas may not be that linear, I can also imagine some meetings of the board involving people hopping in and out of the meeting on several occasions and chairing of the discussions swapping back and forward. I do not envy the minute taker!

The policy goes onto to cite extracts from Guidance within the GMC’s core guidance Good Medical Practice (2006) and reiterated in its document Conflicts of Interest (2008) Indicates, in such cases, that:

• “You must act in your patients best interests when making referrals and when providing or arranging treatment of care. You must not ask for or accept any inducement, gift or hospitality which may affect or be seen to affect the way you prescribe, treat or refer patients. You must not offer such inducements to colleagues. 
• if you have financial or commercial interest in organisations providing healthcare or in pharmaceutical or other biomedical companies, these interests must not affect the way you prescribe for, treat or refer patients.
• if you have a financial or commercial interest in an organisation to which you plan to refer a patient for treatment or investigation, you must also tell the patient about your interest. When treating NHS patients you must also tell the healthcare provider.”

The GMC also provides the following general guidance:

• you may wish to note on the patient’s record when an unavoidable conflict of interest arises; and
• if you have a financial interest in an institution and are working under an NHS employers’ policy you should satisfy yourself, or seek other assurance from your employing or contracting body, that systems are in place to ensure transparency and to avoid, or minimise the effects of, conflicts interest. You must follow the procedures governing the schemes.

This is all very well, but it does not mention commissioning as such. This General Medical Council guidance relates to the specific treatment of individual patients. The broader role of commissioning which includes market making, slicing & dicing services to create tendering opportunities, deciding on overall priorities and strategic plans (as well as the practice of procurement itself) is not really covered by this GMC Guidance, I would argue. 

Within the new NHS commissioning arrangements, the commercial suppliers who will succeed and make healthy profits will be the ones who understand the market place in detail and/or may have had influence over the shape of that market place. The published policy on conflicts of interest for AVCCG covers mostly arrangements for declaring interests and withdrawing from specific discussions within CCG meetings where there is a conflict of interest. I do not see anything in this policy paper which relates to the passing of information / intelligence / insight out to other bodies, or the setting up of blind trusts (such as happens with Government ministers where their financial interests could be seen to be in conflict), or indeed the creation of robust firewalls between the CCG and potential providers. 

Now (for the sake of loud public record), I am not, of course accusing any of the CCG board members of any impropriety, corruption or exploitation of interests. Nor am I suggesting that Vale Health have done anything unethical or illegal.

The policy states (with added emphasis from me) "All CCG members are required to declare any relevant and material personal or business interests and any relevant and material personal or business interests of their spouse; civil partner; cohabite; family member or any other relationship which may influence or may be perceived to influence their judgement" and that the "principles and aims of the policy" are to "avoid potential conflicts of interest, manage conflicts of interest where unavoidable, ensure equity, support openness and transparency, [and] adopt appropriate and proportionate safeguards".

• Is the fact that two members of main board have financial interests in a likely local supplier an 'avoidable' conflict of interest? (They could easily sell their shareholdings, for example.) 

• Given the current circumstances, might the people of Aylesbury Vale 'perceive' an influential conflict of interest?

• Are the current arrangements, which only really cover decision making within CCG meetings and the declaration of interests, adequately providing 'appropriate and proportionate safeguards'?

• Are there any systemic conflicts of interest here? (By systemic I mean inherent in the current system no matter what mitigating procedures are put in place.)

• Given that the policy says that declarations of interest should include "Any role or relationship which the public could perceive would impair or otherwise influence the individual’s judgement or actions in their role within the CCG", the highly political nature of these new arrangements are there any memberships or relationships which might have been overlooked (political parties, professional associations, free masonry etc)?

• What do you think should happen now?