PBC has the potential to increase the quality and range of services available to patients, but PCTs must exercise caution to avoid conflicts of interest. Alison Moore reports
You are the commissioning director of a primary care trust. Your go-ahead practice-based commissioning consortium is eager to bring in more providers to deal with common problems that currently end up being dealt with in the acute sector. You are happy to discuss the design of a new community-based service with them.
But when you advertise for potential providers, who is likely to respond? Probably organisations formed by some of the GPs in the consortium or working with individual practices.
They have the local knowledge and skills - perhaps as GPs with a special interest - and the enthusiasm to deliver the service. But could appointing them create a conflict of interest? That dilemma is beginning to crop up for PCTs as GPs are increasingly providing services in the community as well as playing a leading role in commissioning - the old purchaser-provider divide issue in miniature.
How can public service standards of probity be guaranteed, given this overlap? And how can the public be reassured that there is no conflict of interest, either when GPs are chosen to provide a service or when their GP is recommending a particular course of action to them?
Conflict of interest
'I think some conflict of interest is inherent in practice-based commissioning, but it's also actually a strength of PBC,' says King's Fund senior fellow Richard Lewis. 'The point of PBC is to give GPs a make-or-buy decision - should they do it themselves or buy it?
'When GPs decide to go down the PBC route and follow the incentive, it is a bit surprising if we cry foul. Regulation is the role of PCTs and it is one they find difficult. This is an area where the NHS is running fast to catch up with policy.'
A complicating factor may be that there are many forms of GP involvement in providing services, from simply doing more investigations on patients in-house and reducing referrals, to setting up substantial companies looking to do work across a wide area.
While few people would worry about GPs carrying out the first of these - and then using underspends to build up new services - there is a greater need for regulation when they provide services in a wider arena and operate like a commercial organisation.
NHS Alliance chair Dr Michael Dixon expects there will be many grey areas. But what should PCTs do to ensure conflicts of interest are recognised and dealt with?
The government wants to maintain probity in public services, but one of the main aims of PBC is to bring in alternative providers and innovative services and to enable this to happen quickly.
Government guidance says there is no need to insist on tenders under the willing provider mechanism - where providers work for a fixed price per case but with no guarantee of volume - unless it creates a local monopoly.
Willing providers have to convince patients to come to them, just as acute providers do under patient choice. Opening hours and accessibility may be a big part of this, but so will GPs' recommendations.
However, the guidance does stress that clinicians must exclude themselves from decisions on business cases in which they have an interest or with which they are associated and that a PCT committee or subcommittee should be set up to deal with such decisions.
The General Medical Council also says doctors should satisfy themselves that systems are in place to ensure transparency and to avoid, or minimise the effects of, any conflict of interest.
In addition, there is a more general duty to inform patients if they have any financial interest in an organisation they plan to refer them to and not to let any commercial interests affect decisions about the referral or treatment of patients.
This guidance provides a framework within which doctors and PCTs must work, but there are a lot of practical issues to deal with.
The first of these is that GPs are often in a preferential position to provide services. Dr Dixon says this might not be a bad thing; GPs are generally there for the long haul and are trusted by their patients.
'What you don't want is providers in primary care who are simply there to make the most sales of their provider products and pay off their shareholders,' he says. 'We should not over-agonise [about GP involvement].
'But there do need to be transparent and fair practices [to ensure] a PCT and a practice would not mind being on the front of the local newspaper or in front of a health scrutiny committee. The trick is that when decisions are made they are made by disinterested clinicians and managers.'
Mr Lewis says that one of the things PCTs need to do as a local regulator is ensure that alternative providers have access to the market and that patients have a choice.
Selecting potential providers
This can be through advertising. Some PCTs have recently advertised for willing providers. Kingston PCT has started a register of potential providers and has said any specifications of services will be made available through its website.
However, local GPs may still have an advantage, simply by knowing what services are causing dissatisfaction and may be ripe for alternative providers. PBC consortia are also likely to have strong views on what service model will work best and PCTs will need to draw on clinical advice when writing specifications: another area where conflicts of interest could arise.
NHS Confederation PCT network director David Stout urges PCTs to be as transparent as possible in their decision-making and to involve all stakeholders at an early stage.
He says the PCT's obligation to make sure it is getting value for money out of any service is an important safeguard. PCTs have to approve the PBC plans and ensure they provide value for money and fit in with their overall strategy.
But there is a danger that these decisions will be seen as being made behind closed doors: PCT committees are likely to be held in private, where in the past a major change of provider was likely to be discussed in public. One commentator suggests this could look 'less than wonderful' to the public and press.
There is also doubt about whether appointing new willing providers has to go out to public consultation. Consultation is needed in cases of significant service change and it is arguable whether introducing new providers, with no guarantees of volume, amounts to significant change.
Over time, this could lead to a significant loss of work for established providers, such as acute trusts, and could undermine services. This is a concern in areas such as dermatology, where consultants fear easier cases will be treated by GPs with a special interest, while complex cases, only paid at tariff, will end up in hospitals.
Whatever happens, more checks will be built into the system to ensure that what happens is ethical and transparent. GP and NHS Alliance PBC spokesman Dr David Jenner says this is inevitable once market values are introduced into the NHS.
'PCTs are potentially quite naive,' he says. 'But I think they have a lot less to fear from GP-run companies than they do from overseas providers with overseas shareholders.
'Once you commercialise things, you get a different set of rules. The people who join the NHS have often made a decision to join it to avoid the rather murky world of business.'
Another area of concern is patients making the choice of where to be treated if several willing providers are accepted. As Dr Jenner points out, they often prefer to make the choice with a primary care professional. And they may even prefer to choose something associated with their GP, given the evidence that GPs are widely trusted. As GPs have a lot of public trust to lose, they are likely to be keen to be seen to be acting ethically.
Assura Medical - which is interested in becoming a willing provider in association with GPs - is planning 'back checks' to monitor what information patients are given. This will be introduced in Liverpool, where it has been accepted as a willing provider for community dermatology services (see 'Case study: Liverpool PCT', below).
Pauline Johnson, a former PCT chief executive who is contracts manager for the firm, says it will be checking that choice of provider is offered by the referring GP. 'We have very strong governance in place because of the conflicts of interest,' she says. 'Every patient will be given a questionnaire to check patients have been asked about choice.'
She believes the service on offer - which should involve a GP with a special interest, a consultant and a specialist nurse to see patients - will be very popular as it offers appointments until 10pm.
Crucially, the firm believes it can set up services within 12 weeks of approval. It has drafted pathways for services which can be tailored to suit local circumstances.
Regulating the market
Few PCTs have had to think about such issues before now, but how they manage markets may be the next pressing issue. Mr Lewis says: 'PCTs need to develop a clear view of how they want to regulate their local market and the balance between protecting the public purse and the interests of patients, and the need to stimulate and allow innovation in primary care.'
NHS Alliance provider network lead Rick Stern concludes: 'PCTs have to realise that they can't distance themselves from this sort of stuff - it will remain their responsibility to ensure there is good governance.'
But he warns that regulation or market management should not be so heavy as to scare off the sort of innovative, flexible GPs who can design better healthcare. 'These are people we want in there and we need to manage conflicts of interest.'
Case study: Liverpool PCT
Liverpool PCT recently advertised for 'willing providers' of community-based dermatology services in the south central area of the city on behalf of the practice-based commissioning group in the area.
The two companies it accepted - Assura Liverpool Local Partnership and Our Care Ltd - have links with GPs in the PBC consortium.
Assura LLP is a joint venture between GPs and Assura Medical, which provides business and management expertise. One of the GPs who helped design the specification of the service advertised by the PCT is from a practice that has since formed links with Assura.
Our Care has several GPs from the area on its board.
The potential conflict of interest was spotted by the PCT, which took legal advice on what to do to avoid problems.
The PCT kept records of any potential conflict of interest and ensured that recommendations on which providers to appoint were made by PCT employees, rather than GPs.
The final decision was made by the PBC committee of the PCT board.
But as the PCT admits: 'The nature of PBC is such that GPs who are keen to be involved are also often keen to extend the provision of services.'