CODE OF CONDUCT WHERE GP PRACTICES OR CONSORTIA ARE POTENTIAL 1. Introduction PROVIDERS OF CCG COMMISISONED SERVICES 1.1. Managing potential conflicts of interest appropriately is needed to protect the integrity of the NHS commissioning system and protect clinical commissioning groups (CCGs) and GP Practices from any perception of wrong-doing. This Code of Conduct sets out the safeguards that South Kent Coast CCG has in place to manage any conflicts of interest that may arise when commissioning services where GP practices could be potential providers. 1.2. The Secretary of State for Health will make regulations under section 75 of the Health and Social Care Act 2012 placing requirements on the CCG to ensure that it adheres to good practice in relation to procurement, do not engage in anti-competitive behaviour and promote the rights of patients to make choices about their healthcare. 1.3. The CCG will decide where it is appropriate to commission community-based services through competitive tender or an Any Qualified Provider (AQP) approach where through single tender. In general commissioning through competitive tender or AQP will provide greater transparency and help reduce the scope for conflicts. However, there may be circumstances where the CCG could reasonably commission services from GP practices on a single tender basis. This may occur where the GP practice is the only capable provider of the service or the service is of minimal value. This Code of Conduct is in place to ensure transparency and scrutiny of the CCGs decisions but will ensure the CCG can commission the best service, whether or not this is provided by a GP, an organisation that a Governing Body member has a stake in or from another community, private or acute provider. 1.4. Some worked through examples of how the CCG will manage a range of potential situations is provided in Appendix 1. 2. Provision of Assurance 2.1. Appendix 2: Template Commissioning Services from GP practices, including provider consortia, or organisations in which GPs have a financial interest. This checklist will be used by the CCG when commissioning services that may potentially be provided by GP practices or organisations in which GPs have a financial interest to assure itself, the local community, the Health and Wellbeing Board and others that the highest levels of probity has been maintained and that the decision making is robust and without reasonable challenge. 2.2. The checklist is to be used when commissioning services: 2.2.1. Through competitive tender where GP practices are likely to bid; 2.2.2. Through Any Qualified Provider approach, where GP practices are likely to be among the qualified providers able to offer the service; 2.2.3. Through single tender from GP practices (Only to be carried out exceptionally with the agreement of the Head of Governance and the Accountable Officer).
2.3. The CCG will need to be able to clearly answer each of the relevant questions. The first set of questions, most of which are also relevant when commissioning services from non-gps, focus on demonstrating that the service meets local needs and priorities and has been developed in an inclusive fashion, involving other health professionals and patients and public as appropriate. 2.4. The question on pricing applies to AQP and Single Tender Waivers and where national tariffs do not apply the CCG will work with a range of providers to determine the cost base of providing services and collate appropriate cost information upon which to base prices. There is existing guidance for commissioners to determine prices in the Currency and Pricing Options for Community Services guidance issued by Department of Health. 2.5. There are specific questions on AQP to ensure that patients are aware of the range of choices available to them. In relation to single tenders from GP practices assurance needs to be sought and provided to show that there are no other capable providers. 2.6. The Governance and Risk Committee receive all single tender waivers which are reviewed in detail. In addition the Committee will receive any completed Appendix 1 which should provide appropriate assurance that; a robust process has been followed in deciding to commission the service, in selecting the appropriate procurement route and in addressing potential conflicts. In addition it will receive a list of all payments over 25k so that they can cross-reference the information. 3. Decision-making 3.1. Where a member of the Governing Body or Committee has a material interest in the decision, they should declare the interest and agree with the Chair whether they should remain in the meeting to provide background, before removing themselves to allow free discussion or whether they should leave the meeting at the outset of the discussion. 3.2. Where a quorum cannot be convened from the membership of the meeting, owing to the arrangements for managing conflicts of interest or potential conflicts of interests, the Chair of the meeting shall consult with the Head of Governance or Chief Finance Officer on the action to be taken, which may include: 3.2.1. requiring another of the Group s committees or sub-committees, the Group s Governing Body or the Governing Body s committees or sub-committees (as appropriate) which can be quorate to progress the item of business, or if this is not possible, 3.2.2. inviting on a temporary basis one or more of the following to make up the quorum (where these are permitted members of the Governing Body or committee / subcommittee in question) so that the Group can progress the item of business: i) a member of the Group who is an individual; ii) iii) iv) an individual appointed by a Member to act on his/ her behalf in the dealings between it and the Group; a member of a relevant Health and Wellbeing Board; a member of a Governing Body of another Clinical Commissioning Group.
3.2.3. These arrangements will be recorded in the minutes. 4. Transparency 4.1. The CCG will ensure that it conducts its procurement activities openly and in a manner that enables scrutiny so that its stakeholders can have confidence that Governing Body members do not have any advantage in the procurement process. Where possible the CCG will: 4.1.1. Publish information on its procurement strategies and intentions; 4.1.2. Take steps to ensure that providers are aware of its intentions to procure particular services, including by publishing contract opportunities; 4.1.3. When procuring services, provide feedback to any providers that where unsuccessful in their bid; 4.1.4. Publish details of the AQP contracts it has awarded in a timely manner; and 4.1.5. Maintain suitable records of the key decisions that it takes, including the reasons for those decisions. 4.2. This information will be maintained on a website managed by NHS England.
Appendix 1: Examples of Managing Conflicts of Interest Scenario 1 The diabetes lead of a CCG has been working on a community diabetes project for two years and has a plan to reduce diabetes out-patient activity by 50 per cent and to reinvest in education, patient education, more specialist nurses and community consultant sessions. A cornerstone of this new service is a proposal to fund local practices for providing additional services, previously provided in secondary care, to improve prevention, identification and management of diabetes within primary care. Discussion Rather than benefiting a particular organisation, in this scenario all GP practices/primary care providers in the area could potentially benefit from the proposals being developed by the CCG, at the expense of existing secondary care providers. The CCG may have to deal with the perception and challenge that it is favouring its members. However, this may be an appropriate commissioning decision, provided the CCG can demonstrate that: it is possible and appropriate to reduce the number of people being referred to hospital for the management of diabetes and related complications; it is expected to improve overall patient experience and outcomes; the benefits of having the service provided by GP practices and integrating it with the services they already provide for registered patients are so compelling that there are no other capable providers Action In these circumstances the CCG will: Set out and communicate the case for change and the rationale for the proposed service model clearly and transparently using the code of conduct template before taking, or recommending, the final decision to proceed. When developing its diabetes commissioning strategy consult on, and then be absolutely clear about, who will have the opportunity to provide the service model. This will be consistent with its existing commissioning strategy and procurement framework and with the joint health and wellbeing strategy of the relevant Health and Wellbeing Board. Ensure qualified providers are given the opportunity to provide those elements of the new service model not specifically embedded in general practice, for example, specialist nursing and community-based consultant sessions.
Scenario 2 Five GPs who are members of the governing body of a CCG have set up a Community Interest Company to provide health care and local services. Company X has recently paid for two local GPs to be trained as GPs with a special interest (GPwSIs) in gynaecology and has agreed to invest in the extension of a local surgery (where a commissioning group lead is a partner) and in purchasing ultrasound equipment so that a new GPwSI service can be set up. The CCG has recently begun developing its strategic commissioning plan, which sets out its intention to see a shift of up to 30 per cent of out-patient gynaecology services from acute hospitals to community-based settings over the next three years. The CCG intends to develop a specification for these community services to be delivered by Any Qualified Provider. Discussion A conflict clearly exists as they could make a personal financial gain as a result of the CCG s commissioning strategy. There is also a possibility that there could be a perception of actual wrongdoing. The CCG will need to consider whether Company X will have a competitive advantage over other providers or if these individuals have put themselves in a position to make a financial gain due to access to insider knowledge about the local commissioning intentions and if it has put sufficient measures in place to avoid or remedy this. The individuals concerned should have declared their interest in Company X and again at any meeting when the CCG began to discuss its commissioning strategy. Action The CCG has a Standards of Business Conduct policy (the Policy) that clearly identifies circumstances under which members of the governing body should not participate in certain activities and considers the material nature of any conflict and whether the individuals could successfully discharge their responsibilities. In this case the following action would be taken: The five GP members would not be included in the discussions and development of the strategy in relation to the gynaecology service specification. The five GP members would not be involved in the subsequent contract monitoring of the service. In order to ensure that the Governing Body was quorate and the strategy was formulated with the appropriate clinical input, the Lay Member for Governance would identify relevant individuals to support the development of the strategy and sit on the Governing Body when the strategy was to be approved. If it was unclear before the development of the gynaecology strategy that Company X would wish to tender to provide the service and then a tender was received, it would be rejected due to the fact that Company X had access to inside information which would give it an unfair advantage.
Scenario 3 Dr X is the chair of a CCG. He is married to Dr Y. Dr Y is the clinical director for Health R Us, a company that has developed risk stratification software designed to enable primary care providers to identify vulnerable patients at risk of going into hospital and help them to put measures in place to address this. Health R Us has offered to supply the software to Dr X s CCG free of charge for one year to help develop it. It will then be offered at a discounted price because of the work that the group would have done in developing it and acting as a demonstration site. Discussion There is no immediate financial gain to Drs X and Y from the decision to accept the software free of charge for a year. However, there is potential future gain to Dr Y (and therefore to her husband) as the clinical director of a company that could profit from a product that her husband s CCG has helped to develop, and from a preferential position as an incumbent supplier to that group. Action: The CCGs Standards of Business Conduct applies in this situation supported by its Procurement Strategy and published commissioning intentions Dr X must declare an interest and he should exclude himself from any decision-making about this project. Any decision subsequently taken by the CCG will depend on whether or not the product on offer would help it to achieve an existing, stated commissioning objective, and whether or not the deal being offered was in line with the CCG s existing policies for partnership working, joint ventures and sponsorship.. The CCG has a clear and prioritised commissioning strategy and policies for working with other organisations which will ensure that any decision made is appropriate The CCG will also undertake a review of other companies might be willing or able to offer the same or better before making any decision.
Scenario 4 Dr A is a member of a CCG with a longstanding interest in and commitment to improving health and social care services for older people. She has worked closely with local geriatrician, Dr B, for many years, including working as her clinical assistant in the past. They have developed a number of service improvement initiatives together during this time and consider themselves to be good personal friends. Recently, they have been working on a scheme to reduce unscheduled admissions to hospital from nursing homes. It involves Dr B visiting nursing homes and doing regular ward rounds together with community staff. It has been trialled and has had a measure of success which has been independently verified by a service evaluation. They would now like to extend the pilot, and the foundation trust that employs Dr B has suggested that a local tariff should be negotiated with the CCG for this out-reach service. The CCG has decided instead to run a tender for an integrated community support and admission avoidance scheme, with the specification to be informed by the outcomes of the pilot. Discussion Due to her own involvement in the original pilot, association with the incumbent provider and allegiance to her friend and colleague, Dr A has a conflict of interest Action: The CCGs Standards of Business Conduct applies in this situation supported by its Procurement Strategy and published commissioning intentions Dr A will not be involved in developing the tender, designing the criteria for selecting providers or in the final decision making even though she is a local expert. All members have signed up to the CCGs Constitution which contains the Standards of Business Conduct Policy and this outlines how they should declare their interests and how this works in practice. The CCG has a clear commissioning strategy and a procurement framework (setting out what kind of services would be tendered under what circumstances), so it will be clear to the foundation trust and the individuals why the CCG has run a tender. The CCGs will not discourage providers, or their own members, from being innovative and entrepreneurial but this is supported by clear and transparent procurement.
Appendix 2: Code of Conduct Template [To be used when commissioning services from GP practices, including provider consortia, or organisations in which GPs have a financial interest] NHS South Kent Coast Clinical Commissioning Group Service: Question Questions for all three procurement routes Comment/Evidence How does the proposal deliver good or improved outcomes and value for money what are the estimated costs and the estimated benefits? How does it reflect the CCG s proposed commissioning priorities? How have you involved the public in the decision to commission this service? What range of health professionals have been involved in designing the proposed service? What range of potential providers have been involved in considering the proposals? How have you involved your Health and Wellbeing Board(s)? How does the proposal support the priorities in the relevant joint health and wellbeing strategy (or strategies)? What are the proposals for monitoring the quality of the service? What systems will there be to monitor and publish data on referral patterns?
Have all conflicts and potential conflicts of interests been appropriately declared and entered in registers which are publicly available? Why have you chosen this procurement route? 1 What additional external involvement will there be in scrutinising the proposed decisions? How will the CCG make its final commissioning decision in ways that preserve the integrity of the decision-making process? Additional question for AQP or single tender (for services where national tariffs do not apply) How have you determined a fair price for the service? Additional questions for AQP only (where GP practices are likely to be qualified providers) How will you ensure that patients are aware of the full range of qualified providers from whom they can choose? Additional questions for single tenders from GP providers What steps have been taken to demonstrate that there are no other providers that could deliver this service? In what ways does the proposed service go above and beyond what GP practices should be expected to provide under the GP contract? What assurances will there be that a GP practice is providing high-quality services under the GP contract before it has the opportunity to provide any new services? 1 Taking into account S75 regulations and NHS Commissioning Board guidance that will be published in due course, Monitor guidance, and existing procurement rules.