GPs intent on establishing commissioning consortia need to make sure they quickly understand the most important governance issues, such as board accountability and director liability, to meet the demanding challenges they are about to face.
In particular, GPs need to get to grips with the concepts of governance, accountability and liability, because life as a director on the board of a commissioning consortia will present new challenges.
Those who are partners in practices - although jointly and severally liable for the actions of their partners from a legal perspective - are effectively shielded from major financial risk by virtue of the contracts and financial arrangements they have with NHS commissioners.
However, GPs who are directors of commissioning consortia boards may find that they are retaining risks as commissioners through the contracts those consortia let with providers. They could also acquire unexpected liability for the actions of practices (possibly their own) that contract with the consortia.
GPs need to understand and plan for the very different responsibilities that will rest on their shoulders as individuals depending on whether they are sitting on the managing boards of their practice, of the practice cluster, of a PEC, a GP cabinet, or the consortium itself when they are formally established.
Interim arrangements also present challenges. GPs will work next year in partnership with PCTs preparing for the transition to formal commissioning responsibilities the following year. PCTs may create subcommittees and invite GPs to serve on them.
GPs need to be alert to the personal responsibilities that they acquire by doing so, and understand the protection (if any) they will have. PCTs will also need to understand and manage their ongoing statutory accountability during this stage.
GPs serving on a variety of boards and committees need to understand that their status may be different on each. They may be used to serving on the board of a cluster as a representative where they look after the interests of the practice. They will need to adopt a quite different mindset if they become a director on the board of the consortium since, as director of a statutory organisation, their legal responsibility will be to promote the interests of the consortium itself and not the practice they come from or the cluster that may have elected them.
This tricky distinction has caught out directors of a number of private and public sector organisations in the past, and it would be all too easy for GPs to carry across a pattern of behaviour that was right for one organisation but wholly inappropriate for another.
In order to have a registered patient list, practices must be members of consortia, while in order to provide a full range of services, consortia will need to contract with GP practices and others for services. They may have to police practices for compliance with national frameworks and locally agreed pathways or other protocols. Consortia may need to apply sanctions or even (in theory) expel practices.
This all provides plenty of potential for conflicts of interest to arise, possibly with a frequency that could make it impractical for individuals concerned to “step out of the room”. Governance arrangements will have to allow interests to be identified and declared so GPs can continue to participate appropriately in discussions and service provision, while providing an audit trail to show that no improper considerations have influenced either contractual or referral decisions.
This will not be straightforward and, although not beyond the scope of good corporate governance systems, GPs do need to start thinking now about the concept of conflict of interest so that they can identify these issues before they arrive, and be alert to the circumstances that would give rise to them.
Governance infrastructure – what should it look like?
- GPs have little appetite for bureaucracy and the size of the future management allowance will also mean that the governance structure of consortia must be as lean as it is effective.
- Governance structures, mechanisms and processes must avoid consortia being immobilised by inertia, support safe and effective management, and allow the organisation to adapt and react quickly to what will inevitably be very fast-changing circumstances in the future.
- The management structure must provide for a clear accountability framework in which everything is someone’s responsibility and everyone knows what they are responsible for and the authority they have.
- As for governance, any committee must be justified by specifying how it supports its parent body to fulfil its responsibilities, including providing assurance. Terms of reference must be crystal clear.
The NHS Alliance is an invaluable source of guidance and support, and GPs should also not hesitate to draw upon the experience of those in PCTs who have been given the task of supporting them and have the knowledge and experience to do so.
Ray Tarling is a senior advisor and Anne Crofts is a partner at Beachcroft LLP