Chapter 4 - Managing conflicts of interest for GPs

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Managing conflicts of interest for GPs (Extract).

 

This chapter contains:

 

1.     An introduction to the issues raised by conflicts of interest.

2.     The Nolan Principles.

3.     What is an “interest”?

4.     Registration of Interests by a CCG.

5.     The duty on CCGs to make arrangements to manage conflicts of interest.

6.     What arrangements for managing conflicts of interest are suggested by the CCG Model Constitution?

7.     What rules are necessary to ensure that an interest does not affect and is not seen to affect the integrity of the decision making process?

8.     Potential legal consequences where decisions are made in breach of the rules about managing conflicts of interest.

 

1.              An introduction to the issues raised by conflicts of interest.

1.1          Managing actual or potential conflicts of interest is essential for every professional.  General Practitioners are in no different position to lawyers, accountants or many other professionals who ply their professional trade for the benefit of clients but, to a greater or lesser extent, are not paid by clients but by a third party (and often the government).  No professional can avoid conflicts of interest, every professional must be acutely aware of them, understand how differing interests are seen by others and act in a professional manner to manage these interests properly.  This is far from easy for all professionals but the present NHS structures have created particularly difficult issues around conflict of interests for GPs.

 

1.2          NHS England has published Guidance concerning the management of conflicts of interest.  It explains their understanding of a conflict of interest as follows:

 

“A conflict of interest occurs where an individual’s ability to exercise judgement or act in one role is or could be impaired or otherwise influenced by his or her involvement in another role or relationship. The individual does not need to exploit his or her position or obtain an actual benefit, financial or otherwise. A potential for competing interests and/or a perception of impaired judgement or undue influence can also be a conflict of interest”

 

1.3          Helpful guidance on identifying what is meant by a conflict of interest is also set out in a Paper prepared by the NHS Confederation and the Royal College of General Practitioners dated September 2011.  This defined a conflict of interest as follows:

 

“A conflict of interest can be defined as: “a set of conditions in which professional judgement concerning a primary interest (such as patients’ welfare or the validity of research) tends to be unduly influenced by a secondary interest (such as financial

gain)”  or a situation in which “one’s ability to exercise judgement in one role is impaired by one’s obligation in another”.

 

For a GP or other clinical commissioner, therefore, a conflict of interest may arise when their own judgment as an NHS commissioner could be, or be perceived to be, influenced and impaired by their own concerns and obligations as a healthcare provider or as a member of a particular peer, professional or special interest group, or those of a close family member”

 

1.4          It is impossible to describe and provide guidance about every single all factual situation which might give rise to a conflict of interest for GPs in practice.  The arrangements which have been set up the government which involve GPs in commissioning will inevitably involve GPs in many situations where they potentially have more than one interest in a proposed decision.  However it is important to remember that conflicts of interest can never be eliminated.  They existed for GPs before the creation of CCGs (in particular under the old fundholding system) are an inevitable feature of all professional practice. 

 

1.5          Hence the key requirements for GPs are to identify where conflicts arise and to make sure that these are properly disclosed and registered, and then managed in accordance the arrangements that CCGs have put in place are the proper disclosure and management of actual and potential conflicts. 

 

1.6          Every GP Practice which holds an NHS practice contract is required to be a member of the local Clinical Commissioning Group (“CCG”) : See section 14A(1) of the NHS Act.  The constitution of the CCG will define how members of a practice can become involved in the workings of the CCG, stand for election to its committees and otherwise become involved in its work.  There is an obvious potential for conflicts of interest where a GP practice, which is a member of a CCG, bids for a contract where the NHS commissioner is the local CCG.

 

1.7          However there are many other circumstances where a GP, acting perfectly properly, may become involved in a situation where a conflict of interest or potential conflict of interest arises.  Many GPs are also shareholders, directors, employees or partners in medical or social care businesses that provide medical services to NHS patients or provide primary medical services to such businesses.  These businesses may have contracts with NHS commissioners.  There is a potential conflict of interest if any of these businesses tender for a contract with the CCG of which the GP is a part.

 

1.8          There can be both legal and professional consequences for a GP who fails to recognise and properly manage a conflict of interest.  However managing conflicts of interest is part of the professional duties of a GP as the Royal College of GPs and NHS Confederation observed in their Paper in September 2011:

 

“..  seeking to eliminate conflicts of interest completely is unlikely to be possible or desirable”

 

1.9          Issues around conflicts of interest do not usually arise with general practice contracts (i.e. GMS, PMS and APMS contracts) because those contracts are awarded and managed by NHS England and not by the local CCG.  However local GP practices, either individually or through consortia, are in a prime position to contract for the delivery of a large number of services in addition to those governed by GMS, PMS and APMS contracts.  These are very often contracts which are let by the local CCG, whose members are the local GP practices.  The transfer of NHS services out of hospital settings and into the community over the coming years means that the volume of such contracts is certain to increase and hence managing the actual and potential conflicts of interest inherent in such arrangements will become a problem that GPs, CCGs and those who advise them will need to focus on with particular care.

 

1.10       The legal obligations on practising doctors concerning conflicts of interest arise in a number of different ways.  There are provisions of the GMC Code about managing conflicts of interest (which are set out below).  There are also provisions in both the NHS Act (as amended by the Health and Social Care 2012) and the in National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 (“the 2013 Regulations”) around managing conflicts of interest.  Rules for managing conflicts exist within CCG constitutions and standing orders and guidance on this subject has also been given by both NHS England and Monitor.  Much of this Guidance from different bodies covers the same grounds.

 

1.11       It follows that all GPs who are working the NHS must have a working understanding of the concepts that lie behind managing conflicts of interest and have a legal and professional duty to ensure that they know and abide by the national and local rules to manage potential conflicts.  Obligations of openness and proper management of conflicts of interest have been imposed on elected councillors and local government officers for many years.  These rules are, to a large extent, an inevitable consequence of their roles within a tax payer funded public service.  The rules referred in this chapter impose similar obligations on those working in the NHS.  Whilst GPs may resent the level of openness that properly managing conflicts inherently entails, doctors (and CCG staff) have to take difficult decisions about how tax-payers monies are spent and what services are received by NHS patients. Patients pay the taxes that fund the service.  The openness about decision making required by the present arrangements is part of the system under which those who make public service decisions are accountable to their paymasters for the decisions that are made.


David Lock QC

David Lock QC is a barrister at the Landmark Chambers.

180 Fleet Street
London, EC4A 2HG
DX 1042 (London)

He was called to the Bar in 1985 and was appointed Queens Counsel in 2011.

David Lock QC is Head of the Administrative & Public Law Group and the Judicial Review & high Court Challenges Group at No5 Chambers. - See more at: http://www.no5.com/barristers/barrister-details/137-david-lock-qc/#sthash.PcnGl1Eh.dpuf

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