One important issue facing the emerging CCG community is how to engage members of their governing bodies. Here we look at the available options.
This article was part of the Commissioning Legal Adviser channel, in association with Mills & Reeve. The channel is no longer being updated.
A clinical commissioning group’s governing body must have at least six members (including its chair and deputy chair). Each member of the governing body other than the accountable officer is to be appointed by the CCG for a term to be determined by the CCG.
CCG boards will require:
- individuals acting on behalf of member GP practices. These are likely to be practising GPs or other staff of GP practices (a practice nurse for example)
- deputy chair
- lay members to be “strategic and impartial” including:
- one with a lead role in patient/public involvement
- one with a lead role in governance to also act as chair of the CCG audit committee
- clinical member being a “secondary care specialist”, so not a GP
- clinical member being a nurse
- accountable officer
- chief finance officer
The reference to a “term to be determined by the CCG” suggests that appointments should be on a fixed term basis, except for the accountable officer role and in all likelihood the chief finance officer too.
The phrase “fixed term” often brings to mind a fixed term employment contract but, except for the accountable officer and chief finance officer, who should be employed in any event, it is not necessary, and indeed may be undesirable and inappropriate for the CCG to employ members of its governing body.
The preferred engagement route for the chair, deputy chair and lay members is through letters of appointment as an officer-holder for a limited term, making it clear that the appointees are not employees. These arrangements are similar to those issued currently to PCT chairs and NEDs.
GPs, the secondary care doctor and the nurse members are all employees of other bodies or in the case of GPs may be partners or possibly sole traders in a GP practice. To that end, they do not need to be, and ought not to be, employees of the CCGs. It is up to the CCG to decide how to contract with members of its governing body but the simple options are:
- for members who are already employees of the CCG, membership is simply part of their role, so they will remain CCG employees;
- for GPs, the CCG can contract with the GP individually or their practice. This will be either as a self-employed GP providing services to the CCG on a sessional basis (so like a consultancy arrangement) or by agreement with the practice under which they provide a specific GP for periods and the practice is remunerated/compensated so they can back fill with, say, a locum GP (this contract will also look rather like a consultancy arrangement);
- for other staff of GP practices, as for GPs above; and
- for the secondary care clinician and the nurse the CCG can contract with their employer for their services, so this will actually be like a secondment where the CCG pays their employer. Alternatively the CCG could contract with them directly, although there is no good reason to do this in the circumstances.
The benefits of having non-employees as members of the governing body are many. Members cannot claim unfair dismissal, have no redundancy rights, are not required to have a comprehensive contract of employment, and can be flexible with attendance times, location and so on.
These individuals may still be workers (depending on exactly what they do) so they would still have rights not to be discriminated against, the requirements of the working time regulations would apply, and they cannot be treated detrimentally for raising public interest disclosures, for example. But, certainly while CCGs are finding their feet in the new NHS, this may still be preferable to the rigours of employment and all that entails.
Martin Brewer, partner, Mills & Reeve
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Options for engaging members of the CCG governing body