What NHS England isn’t telling you, and more indispensable weekly insight for commissioners, by Dave West

The great conflicts of interest crackdown?

Moves may be afoot to crack down on conflict of interest in commissioning, and it could well cause a stir.

Those following this debate will likely have sensed this direction, following developments over the past eight months:

Before considering where we are headed, let’s look at the history. It shows that any senior figure who has been involved in commissioning, yet claims conflicts of interest were not known to be a widespread and active reality in CCGs, is being disingenuous or is surprisingly ignorant.

Concerns were starkly visible from the early days of proposals to hand hard budgets to “GP consortia”.

Andrew Lansley’s original plans were substantially watered down as they progressed through Parliament: in the end CCG governance arrangements became more formalised and complex, with associated accounting and audit rules; requirements were put in place for two lay members and other non-GPs to take part in governance, for example.

But there remained huge potential for abuse of influence in many groups. As the Lansley system took off, it was obvious that potential conflict was woven into its fabric. This was clearly visible from a scan through governing body interest declarations.

In most cases, the reason GPs got involved in clinical commissioning was to develop and improve local services - particularly primary care. Inevitably, they are often heavily involved in providing the same services they are developing. Very many, including a number of our best clinical commissioning leaders, have some substantial form of extended provider interest. Plenty also have ties to medical technology or pharma. A phrase was occasionally used at the time: “Without conflict there is no interest.”

The investigators in the Barnet case express the current situation well:

“Given the lack of definitive guidance or statute on what constitutes the bounds of propriety in commissioning decisions, it is inevitable that individuals will occasionally interpret some situations and conversations differently…

“Given that CCGs are fledgling organisations it would be surprising if the issues faced in Barnet were not widely replicated across the country. Indeed, our own investigations and conversations with NHS England strongly suggest this is true…

“It is clear that at a point in the process they [conflicted GPs] must step aside when commissioning (ie: financial) decisions are taken.

“What is considerably less clear is when, exactly, they should leave the decision making (or indeed, influencing) activity. Given this lack of clarity, it is easy for individuals with different interpretations of the boundaries of propriety to take exception to behaviours that others may find unremarkable.”

It is important to say that, while the existence of conflicts is widespread, there is very little evidence about whether, how widely, and to what degree these have impacted on commissioning decisions. There is reason to think some CCGs are managing and mitigating the risks well, and there are no known examples of GPs or officials benefiting as a result of abusing their influence.

Since CCGs were launched, the line taken by officialdom has been that the existence of conflict of interest in commissioning itself is acceptable, and to point out the absence of examples of individuals using it for personal gain.

It has seemed that the existence of conflicts was a price that had to be paid – whether in order to secure a level of clinical engagement in commissioning; or to avoid the controversy and political difficulty of confronting it head on.

For many onlookers this didn’t allay their strongly held concerns, but the system overall seemed to be cool with conflict of interest.

Now, though, there is a sense that things are changing quickly. Conflict of interest is about to become very uncool indeed.

The context for the debate has changed. With every day that passes there is less desire to protect the Lansley legacy of uninhibited GP commissioning. There is a fresh revulsion at the appearance of misuse of public money; and an intolerance of bad publicity in general. Some national commissioning leaders were not involved in 2010-13. Although they really should have clocked it before, it’s plausible they didn’t realise how widespread conflicts were in CCGs. They do now.

In these circumstances, it seems like we could be in for a fairly draconian crackdown. Assuming NHS England is about to take a tougher line, what options are available?

  • Its approach so far has been to put in place guidance/rules for declaring and managing conflict and gifts/hospitality received, and to boost the role of lay members (non-executive directors in old money). It could opt for a substantial tightening of all this, with the risk of getting substantial push back from CCGs (which would have to shoulder additional paperwork/costs) and GPs. It seems doubtful these kinds of moves would eliminate the risk of abuse of conflicts in CCGs, although they could give people more confidence in mitigating them.
  • Further watering down the role of GPs in CCGs. At present there is a requirement for two lay members on governing bodies. This could be increased, as could the role of full-time managers and other non-GPs. More than four in five CCGs already have non-GP majorities on governing bodies - although they may have GP majorities on other committees or influencing in other ways. 
  • Encourage a shift to new models of commissioning. Some of this could help - for example sharing commissioning functions with local government or delegating it to providers - although these would be big steps just to deal with conflicts. The idea that new models of care or accountable care organisations are a panacea to conflict of interest, though, is absurd. Passing commissioning budgets to multispecialty community providers, which might well be private GP led organisations, has the potential to exacerbate the risk of conflicts. This could be at least as risky as the original Lansley vision for “consortia”, which CCG governance was built to mitigate.

There will be many who support a substantial tightening of the rules. Shining sunlight on the NHS’s many hidden interactions with the private sector is the right thing to do.

Whether it will improve commissioning is less clear. There will be justified about preserving the progress made in clinical engagement, which can easily slip away; and about spending excessive time and resource on micromanaging conflicts.

This week’s: STP developments

Those running sustainability and transformation planning nationally injected some positivity into the process on Tuesday with the announcement of some decent leaders for eight STPs. These included local authority chief executives for Greater Manchester and Birmingham and Solihull, some of the strongest acute chief executives, and three excellent CCG leaders: Amanda Doyle (Blackpool CCG chief clinical officer) for Lancashire and South Cumbria footprint; David Smith (Oxfordshire chief executive); and Toby Sanders (West Leicestershire accountable officer) for Leicester, Leicestershire and Rutland footprint.

It has also been confirmed that the 44 STP footprints are as per our map published last week.

Let’s hope NHS England and NHS Improvement are not too many difficult conversations away from naming leaders for the remaining 36 patches.

About The Commissioner

This is the fourth outing for HSJ’s new weekly email briefing on the NHS commissioning sector.

Please give me feedback on how I can improve this email, tips on what I should be covering, and comments/complaints on our new series of email briefings in the round.

The Commissioner was away last week - apologies.

Dave West, senior bureau chief, HSJ

Share this on Twitter

If someone forwarded this to you, click here to get your own copy.