Commissioning consortia in the making should waste no time in ascertaining the legal duties and considerations heading their way, advises Mark Johnson

The new goal for GPs and their commissioning consortia is to deliver a more personalised health system that costs less to run. GP commissioners will be expected to assess the health needs of their population, ration resources and commission services that provide high-quality, efficient care for all.

How should GPs be preparing?

Commentators have said a population size of 40,000 could work, while others cite 100,000 as the minimum. It seems unlikely the government will prescribe a model. GPs have the opportunity to seize the initiative and craft something that works for their locality.

It is not clear yet whether consortia will be statutory public corporations or independent social enterprises but there is merit in starting to put in place governance structures now which facilitate leadership, cooperation and decision making across a large group of practices. Experience from shaping practice-based commissioning consortia is that it can take two years to get buy-in from practices, populate the board and agree the work programme. There is no time to lose (see diagram).

Education and training

An important aspect of successful consortia will be their ability to drive behavioural change. In the practice-based commissioning consortia we have assisted, an attractive feature for members has been an extensive programme of education and training to help influence behaviour on referrals and prescribing, coupled with an incentive scheme.

One of the main areas of risk is inherited liabilities from primary care trusts. These could originate from two main sources. First, the cost base and liabilities associated with any staff inherited from PCTs. Consortia will need to consider carefully whether support services could be outsourced or instead provided in-house by former PCT staff. TUPE regulations could operate to transfer whole swathes of PCT staff across. Care will be needed in assessing the payroll, pension and other costs associated with these staff.

Second, consortia need to avoid unwittingly taking on any structural debt or long-term liabilities when PCTs are wound up in 2013. Due diligence investigations need to be conducted on private sector contracts, leases and so on.

Consortia will need to develop or source skills to run tender processes, let, manage and, crucially, enforce contracts with service providers. Advice will be required on compliance with public procurement regulations for certain types of contract.

Consortia may also be subject to the Freedom of Information Act. This will require dedicated resources to manage mandatory disclosures, data protection and patient confidentiality rules.

Stewards of public funds

As stewards of public funds, consortia will need to manage conflicts of interest. Written policies will be required to ensure GPs with an interest in the letting of a contract to their practice or a provider in which they have a stake absent themselves from decision making on that issue. Consortia may find it beneficial to keep the functions of care pathway design completely separate from those of actually letting and managing contracts. Accountable officers will need training in their legal duties.

How will a consortium censure or even expel a practice that fails to toe the line? We have found accountability agreements between practice-based commissioning companies and their member practices have been useful tools in managing errant practices.

Prospective consortia should begin preparing now.