Managing conflicts of interest within the NHS, Clinical Commissioning Groups (CCGs) and wider across the public sector.
Attain’s Commercial team have considerable experience of providing guidance and support around the management of potential conflicts of interest throughout the whole health and care system.
Rod Skinner and Sarah Clark, both Senior Managers within the Commercial team at Attain, provide some key insights and tips for CCG organisations that may help them mitigate and manage real or perceived conflict of interest risks throughout their healthcare procurements thus increasing public confidence in CCG decision making and accountability.
Conflicts of interest… a term that seems to resonate with CCGs, but despite numerous guidance being issued by NHS England there are still public concerns in regard to how CCGs are managing real or perceived conflicts of interest. Through CCGs, clinicians are given public money in order to commission healthcare which may potentially be provided by themselves and colleagues (as providers of healthcare, such as, emergent ACOs, GP Federations, Super Partnerships) thus creating real or perceived conflicts of interest.
This is not to say that CCGs are not taking responsibilities for their statutory duties under these regulations, however with so much guidance out there it can be very difficult balance the level of risk and to understand exactly what you need to do in order to ensure the right processes are not only in place, but are disseminated through organisations and followed in every day practice.
As public authorities, CCGs have a responsibility to manage NHS Public Procurement process within the public procurement framework and principles. Personal preferences, and those family, friends and associates, should not influence, or not perceive to influence, how CCGs make decisions when undertaking a healthcare procurement.
Definition: what is a conflict of interest?
A situation in which a person is in a position to derive personal benefit from actions or decisions made in their official capacity.
Since the inception of CCGs, as GP member organisations, this has been more important than ever before. GPs often wear two different hats:
- Being part of CCG Boards and making commissioning decisions about how public money is spent
- Being providers of healthcare services. This means that they are potentially making decisions about commissioning services from themselves, which means that they have a vested interest as they stand to gain financially from the outcome of that decision.
Of course it’s not just in the commissioning decision where conflicts can occur, and conflicts are not restricted to GPs; this is applicable to the whole of the commissioning cycle inclusive of service design and the procurement of new contracts.
The challenge for commissioners of services is that expert clinical input into these processes is not only important but absolutely essential. By involving expert clinicians we are ensuring we have a good understanding of the issues in delivering those services so that we can commission services which are effective and meet the needs of local populations. After all, who knows better than those providing these services on the ground, they’re the people who are closest to the patients and understand their needs. Failure to engage expert clinical stakeholders in procurement can not only be a potential barrier to achieving support across the system but also to achieving the best overall outcome. It is imperative for current issues, geographical challenges, and inherent pitfalls to be recognised and fully understood before entering a procurement competition.
How can we effectively manage these conflicts of interest?
We can further break this down into stages of the commissioning cycle as the way conflicts are effectively managed can differ through these stages:
- Details of conflicts are recorded at the start of any meetings and any identified conflicts mitigated
- Increasing transparency and publishing registers of conflicts on CCG websites
- Redacting sensitive information which may stop a decision maker from being objective from papers where possible
- Diluting the impact of any one provider in the design phase by utilising a range of stakeholders, including expert clinicians to inform the requirements
- Involvement of the patients and populations specifically around needs assessment
- Ensuring that any finalised requirements are not geared towards any specific provider’s delivery model
- Those with conflicts can be excused from meetings when their conflict exists is discussed
- Ensuring that commissioners keep a clear audit trail of any provider engagement to demonstrate equality of treatment and non-discrimination
- Ensure that all evaluators involved in a procurement declare any potential conflicts. Where conflicts have been identified ensure that these are acted on and all mitigating actions recorded and followed through
- All meetings have clear notes and records of decisions taken
- Providers are also requested to declare conflicts when bidding to deliver services
- Involve clinicians from out of the area, or retired GPs who understand the local demographics and need
Attain supports a number CCGs through a range of healthcare procurements using different routes to market – including the Any Qualified Provider procurement processes (AQP).
In supporting one particular CCG through an AQP process, half of the CCG board were made up of GPs and these GP board members were also members of organisations that had submitted accreditation submissions for the AQP service in question. This presented a problem in terms of how to ensure the necessary CCG board level assurance on AQP process recommendations.
Asking the conflicted Board member GPs to leave the room whilst the remaining non-conflicted board members consider the procurement outcome would of course have been the logical approach but this would have meant half of the board missing and thus the board would not have the necessary quoracy.
The solution was to set up a conflicts of interest committee made up of non-conflicted members where initial approval on proposed AQP accredited providers was sought and then a smaller paper was taken to the CCG Board asking for them to approve the conflicts of interest committee’s decision without giving the Board details on the AQP, therefore ensuring a conflict free Board final decision.
With GPs, individually, or by way of Federations, beginning to play a bigger part in delivering CCG procured services, this solution presents a way to manage potential conflicts of interest in this scenario.
Attain supports a number CCGs through a range of healthcare procurements using different routes to market – including the Competitive Dialogue Process.
A client CCG had a strong desire for the Chair of the CCG (a GP) to be involved in both the ‘dialogue’ sessions and evaluations of submitted bids (in order to gain primary care buy-in to any winning bidder). The Chair’s GP practice was part of a newly formed federation therefore creating a perceived conflict of interest in the submission or association with any bid submission
Attain was asked to provide conflict of interest mitigating solutions to enable the CCG Chair to participate in the procurement dialogue sessions and evaluation of bids without compromising the process and inviting challenges. The following steps have been taken to mitigate against any conflict of interest challenge for the Chair:
- The Chair is not acting as the ‘Federation lead’ within her practice for the duration of the procurement
- The Chair is not involved in, or party to, any meetings or discussions within her practice or any Federation regarding a) their involvement as a supply chain partner of any organisation bidding to become a ‘Prime Provider’ or b) any information relating to the procurement.
The steps outlined above have helped to ensure that the CCG runs a fair, open, and transparent procurement process which secures the right level of clinical input from local GPs, whilst at the same time safeguarding against any conflicts of interest (perceived or otherwise) associated with her involvement (or the involvement of any local GP) in the process.
Furthermore the CCG has sought assurance and statements from both the practice and Federation to assure themselves that the Chair has been excluded from any such discussions (for example in the form of meeting minutes and attendees):
‘I will be excluded from any ‘federation of federation’ meetings (or for specific agenda items) relating to the Community Service procurement – including any Federation’s bid or involvement as a supply chain partner of any bidder.’
It is important for commissioning organisations to recognise the risk and have robust processes in place to deal with any real, or perceived, conflict of interest during the course of the commissioning cycle and have due consideration for statutory and regulatory requirements.
Guidance and support is available from NHS England to enable organisations to put in place robust processes to deal with conflicts of interest. With these processes in place, backed up by a dedicated Conflicts of Interest ‘Guardian’ as well as a willingness to ensure transparency, equal treatment and non-discrimination in decision making, all potential conflicts of interest can be mitigated in a clear and auditable way that provides the necessary confidence to the public about how public money has been spent and will: i) ensure appropriate expert clinician involvement, ii) discharge their statutory duties, and iii) mitigate against risk of challenge.