Managing Conflicts of Interest Policy · update Author / Reviewer Approving Committee (s) Date of...

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MANAGING CONFLICTS OF INTEREST POLICY

v 2.4

Date approved: 9th July 2014 Date for review: July 2016 Lead Director: Director of Corporate Affairs, Performance and Quality Lead Manager: Business Manager NOTE: This is a CONTROLLED document. Any documents appearing in paper form are not controlled and should be checked against the server file version prior to use.

The Health and Social Care Act sets out clear requirements for CCGs to make arrangements for managing conflicts of interests and potential conflicts of interests, to ensure they do not affect or appear to affect the integrity of the CCG’s decision making processes.

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DOCUMENT CONTROL AND AMENDMENT RECORD

Version Date Details of reason for review or update

Author / Reviewer

Approving Committee (s)

Date of Approval

1.0 (final) 18 June 2012

Effective from 1st October, 2012 A McMylor/ S Hickey

Board 22/06/2012

1.1 (draft) April 2013 NHS England guidance received March 2013 – policy updated to reflect new guidance

S Allingham

1.2 (draft) August 2013

Revisions following comments received.

G Mackenzie S Hickey

1.3 (draft) October 2013

Comments received from IGC and Counter Fraud incorporated

IGC R Chappell

1.4 (draft) January 2014

Comments from Audit Committee incorporated

S Allingham

2.0 (final) April 2014 Policy approved S Allingham Board 09/04/2014

2.1 (draft) January 2015

New NHS England guidance published in December 2014

S Allingham

2.2 (draft) February 2015

Comments received from IGC and Internal Audit incorporated

S Allingham

2.3 (draft) February 2015

Comments incorporated from IGC S Allingham

2.4 (draft) March 2015

Comments incorporated from NJ, SH, GM

S Allingham

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CONTENTS

Page

1. Introduction ……..……………………………………………………………….. 5 2. Definitions ……………………………………………………………………….. 6 3. What are Conflicts of Interest? ………………………………………………… 7 4. General Safeguards ……………………………………………………………. 9 5. Managing Conflicts of Interest ………………………………………………… 11

Register of Interests ……………………………………………………….. 11 Declaration of Interests ……………………………………………………. 12 Board Members …………………………………………………………….. 13 General ………………………………………………………………………. 14 Waiver ………………………………………………………………………… 14

6. Transparency in Procuring Services …………………………………………. 16

Where GPs are potential providers of CCG-commissioned services …. 16 Contractors ………………………………………………………………….. 17 Designing service requirements ………………………………………….. 17

7. Preserving integrity of decision-making process when all or most GPs have an Interest in a decision …………………………………………………………… 19

8. Dispute Resolution …………………………………..…………………………. 21 9. Code of Conduct ……………………………………………..…………………. 23 10. Record Keeping ………………..……………………………………………….. 24 11. Role of Commissioning Support ………………………………………………. 25 12. Role of NHS England ……………………………………………………………. 25 13. Linked Policies/Guidance …………………………………………………..….. 25

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Appendices: 1 – Declaration of Interests for Members of the CCG, Board Members, Committee members, and employees template …………………………….. 26 2 – Declaration of Conflict of Interests for bidders/contractors template ……….. 28 3 – Procurement template …………………………………………………………… 30 4 – General Practice Resources Committee Terms of Reference …………. 32 5 – South West London Collaborative Commissioning – Joint Committee Draft Terms of Reference …………………………………………………………. 34 6 – 10 key questions …………………………………………………………………… 42 7 – NHS Clinical Commissioners, Royal College of General Practitioners and British Medical Association – Shared principles on conflicts of interest when CCGs are commissioning from member practices ……………………………… 43 8 – Section 7 of Monitor’s Substantive Guidance on the Procurement, Patient Choice and Competition Regulations ……………………………………………. 49 9 – Conflict of Interest Discussion Scenarios ………………………………………. 53

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1. INTRODUCTION The Health and Social Care Act sets out clear requirements for Clinical Commissioning Groups (CCGs) to make effective arrangements for managing conflicts of interest or potential conflicts of interest, to ensure they do not affect or appear to affect the integrity of the CCG’s decision making processes. By identifying where and how conflicts may arise and dealing with them appropriately, CCGs will be able to ensure proper governance, robust decision making and appropriate decisions about the use of public money. Clinical involvement in commissioning may lead to a perception amongst patients and the public of conflicts of interest, therefore, effective handling of such conflicts is crucial for the maintenance of public trust in the commissioning system. Importantly, it also serves to give confidence to patients, providers, Parliament and tax payers that CCG commissioning decisions are robust, fair, transparent and offer value for money. In May 2014, NHSE offered CCGs the opportunity to take on an increased responsibility for the commissioning of primary care. This would enable CCGs to commission care for their patients and populations in more coherent and joined-up ways, but would also create exposure to a greater risk of conflicts of interest, both real and perceived. Following consultation with national stakeholders, NHS England (NHSE) published further guidance to strengthen the management of conflicts of interest. This guidance builds on and incorporates relevant aspects of existing NHSE guidance, and supersedes the extant NHSE guidance. The Wandsworth CCG Vision and Values state: “We are part of the NHS and will ensure that we uphold its principles and values as reflected in the NHS Constitution. We will demonstrate honesty and integrity in all our work. We will be thoughtful and transparent in our decision making and governance. We will be responsible stewards of public money, ensuring that we make adequate provision for adverse times.” The Constitution makes provision for dealing with conflicts of interest, of which this policy should be considered part through its enactment. The policy sets out how the CCG will manage conflicts of interest arising from the operation of the business of the organisation. The policy applies to all employees and appointed individuals, who are working for Wandsworth CCG, persons serving on committees and other decision-making groups, and members of the Board. The CCG will view instances where this policy is not followed as serious and may take disciplinary action against individuals, which may result in dismissal.

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2. DEFINITIONS

Members of the Wandsworth CCG Board

Members appointed to the Board in accordance with the Constitution.

Member Practices A Practice which has successfully completed the application process for Membership of the CCG and whose name is recorded in the Register of Members in accordance with paragraph 3.4 of the Constitution (and “Membership”) shall be construed accordingly).

Member Representative An individual nominated by a Member Practice to represent that Member Practice on the Members’ Forum in accordance with paragraph 3.6.1 of the Constitution.

Practice An individual or organisation that is a provider of primary medical services pursuant to: a general medical services contract; arrangements under section 83(2) of the Act; or arrangements under section 92 of the Act, for the provision of primary medical services of a prescribed description.

Register of Members A written register as amended from time to time of the names and addresses of the Members of the CCG established and maintained in accordance with the Constitution.

Register of Interests A written register as amended from time to time of the interests of each member of the Board or Members’ Forum as described in the Constitution.

Member of the CCG A Practice may become a Member of the CCG if it is situated with the London Borough of Wandsworth and is a provider of primary medical services.

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3. WHAT ARE CONFLICTS OF INTEREST? 3.1 A conflict of interest occurs where an individual’s ability to exercise judgement or act in

one role is or could be impaired or otherwise influenced by his or her involvement in another role or relationship. The individual does not need to exploit his or her position or obtain an actual benefit, financial or otherwise. A potential for competing interests and/or a perception of impaired judgement or undue influence can also be a conflict of interest.

3.2 Conflicts can arise from:

a direct financial interest – for example, where an individual may financially benefit from the consequences of a commissioning decision (eg as a provider of services);

an indirect financial interest – for example, where an individual is a partner, member or shareholder in an organisation that will benefit financially from the consequences of a commissioning decision;

a non-financial interest – for example, where an individual holds a non-remunerative or not-for-profit interest in an organisation, that will benefit from the consequences of a commissioning decision (eg where an individual is a trustee of a voluntary provider that is bidding for a contract);

a non-financial personal benefit – where an individual may enjoy a qualitative benefit from the consequence of a commissioning decision which cannot be given a monetary value (eg a reconfiguration of hospital services that might result in the closure of a busy clinic next door to an individual’s house);

conflicts of loyalty (eg in respect of an organisation of which the individual is a member or has an affiliation);

personal or professional relationships with others, eg where the role or interest of a family member, friend or acquaintance may influence an individual’s judgement or actions, or could be perceived to do so.

3.3 For a GP or any other individual involved in commissioning, a conflict of interest may,

therefore, arise when their own judgement as an NHS commissioner could be, or be perceived to be, influenced and impaired by their own concerns and obligations as a healthcare or related provider, as a member of a particular peer, professional or special interest group, or as a friend or family member (Appendix 9 presents a number of discussion scenarios). Such conflicts may create problems such as inhibiting free discussion which could result in decisions or actions that are not in the interests of the CCG, and risk giving the impression that the CCG had acted improperly.

3.4 Conflicts may arise in a number of situations including, but not limited to:

Appointing a Board;

Designing service requirements;

Procurement of services where clinical commissioning leaders have a financial interest in a provider company;

Direct or indirect financial interests: where GPs may refer their patients to a provider company in which they have a financial interest;

Non-financial or personal conflicts;

Where enhanced services are commissioned that could be provided by member practices;

Where LMC officers are also key officials in the CCG;

Conflicts of loyalties;

Conflict of professional duties and responsibilities. 3.5 In determining what needs to be declared, individuals should ask themselves the

following questions:

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Am I, or might I be, in a position where I or my family or associates could be perceived to gain from the connection between my private interests and my employment with the CCG?

Do I have access to information which could be perceived to influence purchasing decisions?

Could my outside interest be perceived in any way detrimental to the CCG or to patients’ interests?

Do I have any other reason to think I may be risking a conflict of interest?

3.6 If in doubt, the individual concerned should assume that a potential conflict of interest exists.

3.7 The Bribery Act 2010, which repealed existing Corruption legislation, introduced the offences of offering and or receiving a bribe. It also places specific responsibility on organisations to have in position sufficient and adequate procedures to prevent bribery and corruption taking place. Under the Act, bribery is defined as “Inducement for an action which is illegal, unethical or a breach of trust. Inducements can take the form of gifts, loans, fees, rewards or other privileges”. No actual gain or loss has to be made. Corruption is broadly defined as the offering or acceptance of inducements, gifts, favours, payment or benefit-in-kind which may influence the improper action of any person. Corruption does not always result in a loss. The corrupt person may not benefit directly from their deeds; however, they may be unreasonably using their position to give some advantage to another. To demonstrate that NHS Wandsworth has sufficient and adequate procedures in place and to demonstrate openness and transparency, all staff are required to comply with the Managing Conflicts of Interest policy. For a more detailed explanation, please see the CCG’s Anti-Bribery Policy. Should employees wish to report any concerns or allegations, they should contact their Local Counter Fraud Specialist.

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4 GENERAL SAFEGUARDS

4.1 The following principles are used to manage conflicts of interest, depending on which stage in the commissioning cycle decisions are being made. These are integral to the commissioning of all services:

Doing business appropriately – ensuring needs assessments, consultation mechanisms, commissioning strategies and procurement procedures are right from the outset, conflicts of interest become much easier to identify, avoid and/or manage, because the rationale for all decision-making will be clear and transparent and should withstand scrutiny;

Being proactive, not reactive – seek to identify and minimise the risk of conflicts of interest at the earliest possible opportunity, for instance by:

o Considering potential conflicts of interest when electing or selecting individuals to join the Board or other decision-making bodies;

o Ensuring individuals receive proper induction and training so that they understand their obligations to declare conflicts of interest.

o Establish and maintain registers of interests, and agree in advance how a range of possible situations and scenarios will be handled, rather than waiting until they arise.

Assuming that individuals will seek to act ethically and professionally, but may not always be sensitive to all conflicts of interest – rules should assume people will volunteer information about conflicts and, where necessary, exclude themselves from decision-making, but there should also be prompts and checks to reinforce this;

Being balanced and proportionate – rules should be clear and robust but not overly prescriptive or restrictive to ensure that decision-making is transparent and fair, but not constrain people by making it overly complex or cumbersome;

Openness – ensuring early engagement with patients, the public and with Health and Wellbeing Boards in relation to proposed commissioning plans;

Transparency – documenting clearly the approach that will be taken at every stage in the commissioning cycle so that a clear audit trail is evident;

Responsiveness and best practice – ensuring that commissioning intentions are based on local health needs and reflect evidence of best practice; securing ‘buy-in’ from patients and clinicians to the clinical case for change;

Securing expert advice – ensuring that plans take into account advice from appropriate health and social care professionals, and draw on commissioning support as required;

Engaging with providers – early engagement with both incumbent and potential new providers over potential changes to the services commissioned for a local population;

Creating clear and transparent commissioning specifications – that reflect the depth of engagement and set out the basis on which any contract will be awarded;

Following proper procurement processes and legal arrangements, including even handed approaches to providers;

Ensuring sound record keeping, including an up-to-date register of interests – applying best practice in sound record keeping, making appropriate information available and accessible, and maintaining a register of interest with a clear system for declaration of interests;

Dispute resolution – having systems for resolving disputes, clearly set out in advance.

4.2 In addition to the principles above, the following will also need to be considered:

Planning which services or pathways need to be commissioned differently or de-commissioned, eg engaging with a wide range of providers, securing independent clinical advise and specifying services on the basis of best practice and outcomes;

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Agreeing which services or pathways should be commissioned or de-commissioned, eg identifying potential conflicts, designing the decision making processes to avoid such conflicts and using contractual mechanisms to mitigate any residual risk; and

Monitoring the services commissioned, to ensure they are delivering to the agree specification, eg securing patient involvement and independent clinical advice in monitoring the quality of the services commissioned.

4.3 These general processes and safeguards should apply at all stages of the

commissioning process, but will be particularly important at key decision-making points leading up to, during, and after the actual procurement of services, and in deciding whether to go out to procurement.

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5 MANAGING CONFLICTS OF INTEREST

5.1 Wandsworth CCG has put in place arrangements, as outlined in this document, to manage conflicts and potential conflicts of interest so that decisions will be taken, and seen to be taken, without any influence by external or private interest.

5.2 The Lay Member of the Board with responsibility for Governance, will be available to

provide advice to any individual who believes they have, or may have, a conflict of interest.

5.3 The Board will take such steps as it deems appropriate, and request information from

individuals it deems appropriate, to ensure that all conflicts of interest and potential conflicts of interest are declared and published.

5.4 Register of Interests:

5.4.1 Wandsworth CCG has established a Register of Declarations of Interest and will maintain one or more registers of the interests of:

Practice Leads (representative of the Membership of the CCG);

Members of the Wandsworth CCG Board;

Members of its Committees or sub-committees, and the Committees or sub-committees of the CCG Board;

Clinical leads;

CCG employees. 5.4.2 The representative of Member Practices will be expected to declare individual and partnership interest. 5.4.3 The Register for Board Members will be updated on a six-monthly basis, to be reviewed by the Board twice per year. Members are required to notify any changes during the year. The Registers for Locality Commissioning Groups and CCG senior employees will be reviewed by the Audit Committee. 5.4.4 A copy of the Register for Board Members will be available in the following ways:

A summary of Board Members’ interests will be included with the papers for Board meetings to be held in public;

Upon application (either by post or email);

A copy of the Register will be published on the website (www.wandsworthccg.nhs.uk)

5.5 Declaration of Interests:

5.5.1 ‘Relevant and material interests’ (requiring declaration) as defined as:

Roles and responsibilities held within Member practices.

Directorships, including non-executive directorships, held in private companies or public limited companies (with the exception of those of dormant companies).

Ownership, or part ownership, of companies, businesses or consultancies which may seek to do business with the CCG.

Shareholders (more than 1% or £10,000 in value) of companies in the field of health and social care.

Membership of or a position of authority or trust in an organisation (eg charity professional body, or voluntary organisation) in the field of health and social care.

Any connection with a voluntary or other organisation contracting for NHS services.

Research funding/grants that may be received by the individual or any organisation they have an interest or role in.

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Interests in pooled funds that are under separate management (any relevant company included in this fund that has a potential relationship with the CCG must be declared).

Formal interest with a position of influence in a political party or organisation.

Current contracts with the CCG in which the individual has a beneficial interest.

Any other employment, business involvement or relationship, or that of a spouse or partner that conflicts, or may potentially conflict with the interests of the CCG.

Personal health care needs or those of a spouse or partner that conflicts, or may potentially conflict with the interests of the CCG.

Media appearances where members appear in the capacity of a health professional. 5.5.2 Declarations of Interests will be made in the following ways:

On appointment – When an appointment to the Board is made, a formal declaration of interests should be requested and recorded. The Chair and Accountable Officer will consider whether conflicts of interest should exclude individuals from taking up appointment – this will include an assessment of the materiality and extent of the interest. Any individual who has a material interest in an organisation, which provides or is likely to provide substantial business to the CCG (either as a provider of healthcare, or commissioning support services), should not be a member of the Board. It has been agreed that Directors of GP Provider Federations would be precluded from Board membership. Guidance on this has been issued by the Royal College of General Practitioners and British Medical Association (see Appendix 7). The Chair and Chief Officer will use discretion when considering the materiality of interest with reference to the guidance.

Bi-annually – All interests will be confirmed on a six-monthly basis.

At meetings – All meeting Agendas will include a standing item at the beginning of the meeting for Declaration of Interests pertaining to the items to be discussed. Even if an interest has previously been declared in the Register of Interests, it should be declared in meetings where matters relating to that interest are discussed. Declarations of interest will be recorded in Minutes of meetings.

On changing role or responsibility – Where an individual changes role or responsibility within the Board or Membership of the CCG, any change to the individual’s interests should be declared.

On any other change of circumstances – Wherever an individual’s circumstances change in a way that affects the individual’s interests (eg where an individual takes on a new role outside the CCG or sets up a new business or relationship), a further declaration should be made to reflect the change in circumstances. This could involve a conflict of interest ceasing to exist or a new one materialising.

5.5.3 Individuals will declare any interest that they have, in relation to a decision to be made by Wandsworth CCG, in writing to the Board, as soon as they become aware of it and in any event not later than 28 days after becoming aware. (Appendix 1) 5.5.4 Where an individual is unable to provide a declaration in writing, for example, if a conflict becomes apparent in the course of a meeting, they will make an oral declaration before witnesses, and if appropriate, provide a written declaration as soon as possible thereafter to the Board. 5.5.5 Where an individual has an interest, or becomes aware of an interest that could lead to a conflict of interest, that potential conflict is subject to the provisions of this policy and the Constitution.

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5.5.6 Any declared interests should be reported to the Business Manager, who has responsibility for updating the register accordingly.

5.6 Board:

5.6.1 Individual members of the Board, its Committees and senior employees will comply with the arrangements for managing conflicts or potential conflicts of interest as set out in this policy. 5.6.2 Any conflicts of interests pertaining to scheduled business should be declared orally at the start of each meeting. If a material interest is declared, the individual should either be excluded from relevant parts of the meetings, or join in the discussion but not participate in the decision-making itself (ie not have a vote). 5.6.3 The Chair of the meeting has responsibility for deciding whether there is a conflict of interest and the appropriate course of corresponding action. In making such decisions, the Chair may wish to consult the Lay Member for Governance. All decisions, and details of how any conflict of interest issue has been managed, should be recorded in the Minutes of the meeting and published in the registers. 5.6.4 If a conflict, or potential conflict, of interests has been identified relating to the CCG Chair, the Deputy Chair may require the CCG Chair to withdraw from the meeting or part of it. Where there is no Deputy Chair, the members of the Board meeting will select one. 5.6.5 Where a Board member is aware of an interest which has not been declared, either in the Register or orally, they will declare this at the start of the meeting. The Board will then determine how this should be managed and inform the member of their decision. The member will comply with these arrangements, which must be recorded in the Minutes of the meeting. The interest must subsequently be reported to the Business Manager for recording in the Register. 5.6.6 In making this decision, the Chair will consider whether the meeting is quorate, in accordance with the Standing Orders/Constitution. Where the meeting is not quorate, owing to the absence of certain members, the discussion will be deferred until such time as a quorum can be convened. 5.6.7 Where a quorum cannot be convened from the membership of the Board, owing to the arrangements for managing conflicts of interest or potential conflicts of interests, the Chair may invite on a temporary basis one or more of the following to make up the quorum so that the Wandsworth CCG can progress the item of business:

a non-Voting member of the Wandsworth CCG;

a member of another CCG Board (through a previously agreed formal arrangement).

5.6.8 In this event, the following process will be implemented:

Conflicts of interest and quoracy will be identified, wherever possible, in advance of the meeting following review of the draft Agenda;

A discussion will be held with the Chair and Chief Officer to decide if another individual is required to be co-opted for specific items of business to be progressed;

The Chair and Chief Officer will decide whether a clinician from the GP list should be co-opted for clinical decisions, or a non-voting member of the CCG Board for non-clinical decisions.

The Business Manager will be responsible for inviting the appropriate individual to attend, and arrange a pre-briefing session with the appropriate CCG lead.

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5.6.9 Wandsworth CCG will work with NHS England to determine if any alternate arrangements may be required. 5.6.10 These arrangements must be recorded in the Minutes.

5.7 Decisions taken where a Board or Committee member has an interest

5.7.1 In the event of a committee having to decide upon a question in which a Committee member has an interest, all decisions will be made by vote, with a simple majority required. A quorum must be present for the discussion and decision; interested parties will not be counted when deciding whether the meeting meets quorum. Interested Committee members must not vote on matters affecting their own interests. All decisions will be reported in the Minutes. 5.7.2 Where a Committee member benefits from the decision, this will be reported in the Annual Report and Accounts, as a matter of best practice.

5.8 General:

The following process will be followed for all meetings where a conflict, or potential conflict, is identified:

5.8.1 Where a conflict is declared in advance of a meeting, the Chair, or officer on his/her behalf, will explain the arrangements for managing the conflict or potential conflict of interests to the individual confirming at what point the individual should withdraw from specified activity, on a temporary or permanent basis. The individual will not be able to vote on the issue under any circumstances. 5.8.2 In the event of a conflict of interest being declared during the course of a meeting, the Chair of that meeting may require the individual to withdraw from the meeting or part of it. The Chair’s decision will be final in the matter and the individual will comply with the arrangements, which must be recorded in the Minutes of the meeting.

5.8.3 Where the Chair of a meeting has a personal interest in relation to the business of the meeting, they must make a declaration and the Deputy Chair will act as Chair for the relevant part of the meeting. If no Deputy Chair has been nominated the members of the relevant committee, sub-group, or working group, will elect one of the membership to act as Chair. 5.8.4 In any transaction undertaken in support of the Wandsworth CCG’s commissioning functions (including conversations between two or more individuals, emails, correspondence and other communications), individuals must ensure that, where they are aware of an interest, they conform to the arrangements confirmed for the management of that interest.

5.9 Waiver

The application of a waiver can be used where:

a member of the Board is a clinical professional providing healthcare services to the CCG that do not exceed the average for other practices and NHS entities commissioned to provide services by the CCG; or

the Board member has a pecuniary interest arising out of the delivery of some professional service on behalf of the CCG, and the conflict has been adjudged by the Chair and the Lay Member for Governance not to bestow any greater pecuniary benefit to the member requesting the waiver than to other professionals in a similar relationship with the CCG.

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Where the Chair and the Lay Member for Governance have approved the use of the waiver, the Chair must have discussed it with the Accountable Officer before the meeting. In such circumstances where the waiver is used, the Board member:

must disclose the interest as soon as practicable at the start of the meeting;

may participate in the discussion of the matter under consideration; but

must not vote on the subject under discussion.

The Minutes of the meeting will formally record that the waiver has been used, and that this policy and governing document provisions have been observed in managing that authorised conflict. Where a member has withdrawn from the meeting for a particular item, the Business Manager will ensure that the member is protected from further exposure with relation to their conflict of interest through the restricted circulation of Minutes. The member has an obligation to ensure that they remain mindful of their declared conflict and work with the Business Manager to limit their exposure to information relevant to the conflict while supporting the efficient business administration of the Board.

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6 TRANSPARENCY IN PROCURING SERVICES:

6.1 Wandsworth CCG recognises the importance in making decisions about the services it procures in a way that does not call into question the motives behind the decision. The CCG will procure services in a manner that is open, transparent, non-discriminatory and fair to all potential providers, ensuring that:

conflicts and potential conflicts of interests are managed when awarding a contract by prohibiting the award of a contract where the integrity of the award has been or appears to have been affected by a conflict, and

appropriate records are kept of how any conflicts in individual cases have been managed.

6.2 Potential conflicts of interests will vary to some degree depending on the way in which a service is commissioned:

6.3 Competitive Tender – Where a CCG is commissioning a service through competitive tender (ie seeking to identify the best provider or set of providers for a service), a conflict could arise where GP practices or other providers in which CCG members have an interest are amongst those bidding.

6.4 Any Qualified Provider – Where a CCG wants patients to be able to choose from a range of possible providers and is therefore commissioning a service through Any Qualified Provider, a conflict could arise where one or more GP practices (or other providers in which CCG members have an interest) are amongst the qualified providers from which patients can choose. In these circumstances (and more generally), there are a number of options for demonstrating that GP practices have offered fully informed choice at the point of referral and for auditing and publishing referral patterns. These will build on well-established procedures for declaring interests when GPs or other clinicians make a referral.

6.5 Commissioning services from GP practices on a single tender basis – Where a CCG is commissioning a service from GP practices where there are no other capable providers and the proposed service goes beyond the scope of the services provided by GP practices under their GP contract (Appendix 3).

6.6 The CCG will publish a Procurement Strategy approved by the Board, which will ensure that:

all members of the relevant Clinical Reference Group are engaged in the development of the specifications to procure services;

service redesign, pilot projects and procurement processes are conducted in an open, transparent, non-discriminatory and fair way.

6.7 Wandsworth CCG receives commissioning support for the procurement process currently from the South London Commissioning Support Unit and Joint Commissioning Unit with Wandsworth Borough Council. The Register of Interests must be referred to as part of the procurement process.

Where GPs are potential providers of CCG-commissioned services:

6.8 It is essential that Wandsworth CCG should be able to commission a range of community based services, including primary care services, to improve quality and outcomes for patients. Where the provider for these services might be within general practice, the CCG will need to be able to demonstrate that those services:

clearly meet local health needs and have been planned appropriately;

go beyond the scope of the GP contract; and

the appropriate procurement approach is used.

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“The Code of Conduct: Managing conflicts of interest where GP practices are potential providers of CCG-commissioned services” (NHS Commissioning Board, July 2012) sets out additional safeguards that CCGs are advised to use when commissioning services for which GPs could be potential providers. The proposed additional safeguards are designed to:

maintain confidence and trust between patients and GPs;

enable CCGs and member practices to demonstrate that they are acting fairly and transparently and that members of CCGs will always put their duty to patients before any personal financial interest;

ensure that CCGs operate within the legal framework but are not bound by over-prescriptive rules that risk stifling innovation or slowing down services they wish to commission to improve quality and productivity; and

build on existing guidance, in particular the Procurement Guide for commissioners of NHS-funded services and Principles and Rules of Cooperation and Competition.

6.9 The template at Appendix 3 sets out the factors that the Board will assure itself upon when commissioning services from GP practices, including provider consortia or organisations in which GPs have a financial interest. That may include scenarios in which one or more of the CCG’s Member Practices are anticipated to bid, whether that is under competitive tender, Any Qualified Provider procurement, or through single tender.

6.10 Where decisions are being made on such matters either at the Board or Committees of the CCG, GP practice members who have declared a specific interest in the matter, or all GP practice members at the meeting will be excluded from relevant parts of the meeting. Alternatively, if deemed appropriate by the Chair of the meeting (or Deputy Chair of the meeting if the Chair of the meeting has declared an interest in the matter) they may join in the discussions, but not take part in the decision making itself and would normally be asked to leave the room until a decision has been made. In such circumstances the quorum arrangements for the Board will apply.

6.11 If the Board considers it prudent in a particular circumstance, to seek additional scrutiny for assurance purposes on such a decision they may refer the matter to the CCG’s Audit Committee for additional review of the proposal; this will take place prior to a final decision on the matter by the CCG Board or one of its committees as relevant.

Contractors:

6.12 Anyone seeking information in relation to a procurement, or participating in a procurement, or otherwise engaging with the CCG in relation to the potential provision of services or facilities, will be required to make a declaration of interest (Appendix 2).

6.13 Anyone contracted to provide services or facilities directly to the CCG will be subject to the same provisions of this Constitution in relation to managing conflicts of interests. This requirement will be set out in the contract for their services.

Designing service requirements:

6.14 It is good practice to engage relevant providers, especially clinicians, in confirming the design of service specifications. Such engagement, done transparently and fairly, is entirely legal and not contrary to competition law. However, conflicts of interest can occur if a commissioner engages selectively with only certain providers in developing a service specification for a contract for which they may later bid.

6.15 The CCG will seek, as far as possible, to involve stakeholders in the design of services and to specify the outcomes to be delivered through a new service, rather than the way in which these outcomes are to be achieved. As well as supporting innovation, this helps prevent bias towards particular providers in the specification of services.

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6.16 Engagement with potential providers when designing service specifications will follow the main principles below:

Use engagement to help shape the requirement but take care not to gear the requirement in favour of any particular provider(s).

Ensure at all stages that potential providers are aware of how the service will be commissioned, eg through competitive procurement or through the ‘Any Qualified Provider’ route.

Work with participants on an equal basis, eg ensure openness of access to staff and information.

Be transparent about procedures.

Maintain commercial confidentiality of information received from providers. 6.17 Occasionally, Members may be asked, as subject matter experts, to be involved in development of service specifications or other procurement documents. Where this occurs, all declarations will be proactively sought at the outset and prior to convening for the first time from those forming the group, even if it is only to make a recommendation of the specification or a decision to another body.

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7 PRESERVING INTEGRITY OF DECISION-MAKING PROCESS WHEN ALL OR MOST GPS HAVE AN INTEREST IN A DECISION

7.1 Where certain Members have a material interest, they should either be excluded from relevant parts of meetings, or join in the discussion but not participate in the decision-making itself (ie not have a vote).

7.2 In the majority of cases, where a limited number of GPs have an interest, exclusion of relevant individuals from decision-making will be straightforward.

7.3 In other cases, where all of the GPs or other practice representatives on the decision-making body could have a material interest in a decision not related to primary care arrangements the CCG will:

refer the decision to the Board and exclude all GPs or other practice representatives, with an interest from the decision making process, so that the decision is made only by the non-GP members of the Board including the Lay Members, Registered Nurse and Secondary Care Doctor;

ensure that rules on being quorate at meetings enable decisions to be made; and

plan ahead to ensure that meetings are quorate.

7.4 Depending on the nature of the conflict, GPs or other representatives could be permitted to join in the Board’s discussion about the proposed decision, but should not take part in any vote on the decision. This arrangement will be noted in the Minutes.

7.5 The General Practice Resources Committee has been established to provide oversight of CCG commissioning of services from GP practices in order to minimise the risk of conflicts of interest between the CCG as a statutory NHS commissioning body and the GP practices that comprise the membership of the CCG.

7.5.1 The committee will provide recommendations to the Board on issues relating to the commissioning of services from General Practice, ensure clarity on the respective roles and decisions of the CCG and the South West London Joint Committee in relation to commissioning services from General Practice, and undertake independent work to support the delivery of General Practice functions where there otherwise would be a conflict of interest for Members of the CCG. The Terms of Reference for the committee has been included as Appendix 4.

7.5.2 For Wandsworth-specific GP services procured directly by the CCG, the General Practice Resources committee will provide detailed oversight and advice, including review of business cases, investment and efficiency proposals, and procurement processes. No GP associated with a Wandsworth CCG Member Practice may participate in the work of the committee.

7.5.3 From April 2015 other primary care commissioning will be handled by a Joint Committee established by the SWL CCGs and NHS England. The Terms of Reference have been included as Appendix 5. It is designed to ensure that conflicts of interests are avoided, for example by requiring a Lay Member Chair and a majority on the committee of Lay and Executive members.

7.6 Delegated and Joint Commissioning:

7.6.1 In some cases, all of the GPs or other practice representatives on the Wandsworth CCG Board could have a material interest in a decision. Where such a situation relates to primary medical services, the following arrangements provide a mechanism for decision-making: 7.6.1.1 Procurement decisions relating to the commissioning of primary medical services should be made by a committee of the CCG Board in the form of the South

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West London Collaborative Commissioning Joint Committee established between the SWL CCGs and NHSE. 7.6.1.2 The membership of the committee will be constituted to ensure that the majority is held by Lay and Executive members – as set out in the Terms of Reference (Appendix 5) 7.6.1.3 Any conflicts of interest issues would be considered on an individual basis. 7.6.1.4 The arrangements for primary medical care decision making do not preclude GP participation in strategic discussions on primary care issues, subject to appropriate management of conflicts of interest. They apply to decision-making on procurement issues and the deliberations leading up to the decision.

7.7 The arrangements at both CCG and Joint Committee levels are intended to ensure that a strong clinical, including GP, voice in the strategy for primary care services can be maintained while ensuring specific procurement decisions are reached independently of those with a particular material or related interest.

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8 DISPUTE RESOLUTION

8.1 It is anticipated that disputes arising as a result of conflicts of interests will normally be resolved informally, without recourse to a formal process. If, however, the dispute cannot be resolved informally, the process by which any perceived breach would be handled is set out below. The procedure is based on the principle that disputes should be resolved at the most local level possible. If the dispute is not successfully resolved by the CCG, the complaint should then be heard by NHS England.

Objectives: 8.2 The objectives of the procedure are as follows:

To provide the CCG with an appropriate mechanism for dealing with disputes about conflict of interests.

To resolve disputes transparently, fairly and consistently.

To assure bidders and service providers that the process is fair and transparent.

To mitigate risks and protect the reputation of the CCG.

To prevent, where possible, legal challenge/expensive referral processes.

8.3 When handling disputes the CCG will:

Commit to transparency.

Communicate the process and decision making criteria widely and in advance.

Engage all relevant stakeholders.

Publish findings within and across the CCG to enable consistency.

Be objective and base the analysis and the decision on objective information and criteria.

Maintain an audit trail.

Procedure:

8.4 The Wandsworth CCG dispute resolution procedure in relation to conflicts of interests is made up of the following stages:

Stage 1: Making the Complaint – Any complaint must be submitted to the Chair of the Wandsworth CCG in writing within sixty days of the decision. The complaint will be acknowledged within five working days. If a complaint relates to the Chair of Wandsworth CCG, the complaint must be submitted to the Deputy Chair of Wandsworth CCG. Stage 2: Triage – Following receipt of the complaint, the Chair may contact the complainant to request clarification or further information. If the complaint is not deemed by the Chair to warrant proceeding further, the complainant will be notified that the complaint will not progress.

8.5 If the complaint should be fast tracked to another organisation for legal, governance or safety reasons, the complainant will be informed of the course of action.

8.6 Where a complaint is in scope and not subject to fast tracking, it will proceed to the next stage. In most cases, the triage process should be carried out within five working days.

Stage 3: Chair Review – Following triage, the Wandsworth CCG Chair will review the complaint to determine whether a swift resolution can be achieved without the need to

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involve the Board. The Chair may call a meeting of the parties concerned to discuss the matter informally and without prejudice. If the Chair is unavailable or if the complaint involves the Chair, the Chief Officer will review the complaint and act in accordance with this procedure as appropriate. The Lay Member for Governance will be made aware, and will make him/herself available for advice.

Stage 4: The Board – If the complaint cannot be resolved by the Chair, an appropriate committee of the Board, chaired by the Lay Member for Governance will then formally review the complaint (with external advice as required). Stage 5: The Decision – Following review of the complaint, the CCG will notify the complainant of the decision, explaining the rationale and, if necessary, any required course of action. The CCG will also notify the NHS England of the dispute and the outcome.

8.7 It is expected that the procedure as a whole should not take longer than three months.

Right of Appeal:

8.8 The CCG expects that most complaints will be successfully resolved. However, if the complainant is unsatisfied by the results of this procedure, they can refer the complaint to the NHS England process. Appeals to NHS England must be made within three calendar months of the complainant being notified of the CCG’s decision.

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9 CODE OF CONDUCT

9.1 All individuals, including Membership of the CCG, Board and staff, will at all times comply with the Constitution, Wandsworth CCG Standards of Business Conduct, and the requirements set out in this policy for managing conflicts of interest, being aware of their responsibilities as outlined in that document.

9.2 They should act in good faith and in the interests of the Wandsworth CCG and Wandsworth patients and should follow the Seven Principles of Public Life, as set out by the Nolan Principles and incorporated into the Constitution.

9.3 Individuals contracted to work on behalf of the Wandsworth CCG, or otherwise providing services or facilities to the Wandsworth CCG, will be made aware of their obligation with regard to declaring conflicts or potential conflicts of interest. This requirement is written into the Consultancy Agreement.

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10 RECORD KEEPING

10.1 A clear record of any breaches of conflicts of interest will be kept by the CCG Business Manager.

10.2 Records will be kept of all procurement decisions made, and details of how any conflicts that arose in the context of the decision have been managed.

10.3 The CCG will publish details of all contracts, including the contract values, on the

website as soon as contracts are agreed. For services commissioned through AQP, the CCG will publish on the website the type of services being commissioned and the agreed price for each service. Where services are commissioned through an AQP approach, information on the providers who qualify to provide the service will be made publicly available.

10.4 The Annual Report will include a link to information relating to any breaches of conflicts

of interest.

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11 ROLE OF COMMISSIONING SUPPORT

11.1 The CCG receives procurement support from an external provider. They will advise the CCG in deciding the most appropriate procurement route, and managing contracts in ways that minimise conflicts of interest and preserve integrity of decision making. The CCG will require assurance from the procurement provider that their business processes are robust to enable the CCG to meet its duties in relation to procurement.

11.2 To ensure the CCG is acting fairly and transparently, the CSU will prepare and present

information on bids, including an assessment of whether providers meet pre-qualifying criteria and an assessment of which provider provides best value for money.

11.3 The CCG cannot lawfully sub-delegate commissioning decisions to an external provider of commissioning support. Although the CSU will play a key role in helping to develop specifications, preparing tender document, inviting expressions of interest and inviting tenders, the CCG will:

Sign off the specification and evaluation criteria;

Sign off decisions on which providers to invite to tender; and

Make final decisions on the selection of the provider.

12 ROLE OF NHS ENGLAND

12.1 NHS England will support the CCG, where necessary, in meeting the duties in relation to managing conflicts of interest. In the context of co-commissioning, NHSE will work with NHS Clinical Commissioners to develop a governance training programme for Lay Members to assist them with their role as members of joint or delegated commissioning committees. It will be important for CCGs to support their Lay Members to attend this training.

13 LINKED POLICIES/GUIDANCE

Wandsworth CCG Constitution

Wandsworth CCG Standards of Business Conduct

Standards of Business Conduct for NHS Staff (HSG (93) 5): (document is available on the Department of Health website: http://www.dh.gov.uk/en/Publicationsandstatistics/Lettersandcirculars/Healthserviceguidelines/DH_4017845)

Code of Conduct for NHS Managers (documents are available on the Department of Health website: http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/Browsable/DH_4097226)

Commercial Sponsorship – Ethical Standards for the NHS (document is available on the Department of Health website: http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4076078.pdf)

Procurement Policy

Terms of Reference for all Committees

National guidance

http://www.dh.gov.uk/en/Publicationsandstatistics/Lettersandcirculars/Healthserviceguidelines/DH_4017845

http://www.dh.gov.uk/en/Publicationsandstatistics/Lettersandcirculars/Healthserviceguidelines/DH_4017845

http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/Browsable/DH_4097226

http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/Browsable/DH_4097226

http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4076078.pdf

http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4076078.pdf

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http://www.england.nhs.uk/wp-content/uploads/2014/12/man-confl-int-guid-1214.pdf

http://www.england.nhs.uk/wp-content/uploads/2014/12/man-confl-int-guid-1214.pdf

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Appendix 1 - Declaration of Interests for Members of the CCG, Board members, Committee members (including committees and sub-committees), and employees template All CCG Members, Board members, Committee members and employees are required to declare any relevant and material personal or business interest(s) and any relevant and material personal or business interest(s) of their spouse; civil partner; cohabite; family member or any other relationship which may influence or may be perceived to influence their judgement. Interests that must be declared include:

Roles and responsibilities held within Member practices;

Directorships, including non-executive directorships, held in private companies or PLCs;

Ownership or part-ownership of private companies, businesses or consultancies likely or possible seeking to do business with the CCG and/or with NHS England;

Shareholdings (more than 5%) of companies in the field of health and social care;

A position of authority in an organisation (eg charity or voluntary organisation) in the field of health and social care;

Any connection with a voluntary or other organisation (public or private) contracting for NHS services;

Research/funding grants that may be received by the individual or any organisation in which they have an interest or role;

Any other role or relationship which the public could perceive would impair or otherwise influence the individual’s judgement or actions in their role within the CCG.

Guidance Notes:

A declaration must be made of any interest likely to lead to a conflict or potential conflict as soon as the individual becomes aware of it, and within 28 days.

If any assistance is required to complete this form please contact the Business Manager.

The signed copy of the completed form should be sent by both email and hard copy to the Business Manager.

Any changes to interests declared must also be registered within 28 days of the relevant event by completing and submitting a new declaration form.

The register will be published in the Annual Report and available on the Wandsworth CCG website.

Members and employees completing this declaration form must provide sufficient detail of each interest, and the potential for conflicts with the interests of the CCG and/or NHS England and the public for whom they commission services, to enable a lay person to understand the implications and why the interest needs to be registered.

If in doubt as to whether a conflict of interest could arise, a declaration of the interest must be made.

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DECLARATION OF INTERESTS

Name:

Position within or relationship with, the CCG or NHS England:

Type of Interest Details Materiality Personal interest/family member/other acquaintance? Value

Roles and Responsibilities held within member practices

Directorships, including non-executive directorships, held in private companies or PLCs

Ownerships or part-ownership of private companies, businesses or consultancies likely or possibly seeking to do business with the CCG and/or with NHS England

Shareholdings (more than 5%) of companies in the field of health and social care

Positions of authority in an organisation (eg charity or voluntary organisation) in the field of health and social care

Any connection with a voluntary or other organisation contracting for NHS services

Research funding/grants that may be received by the individual or any organisation they have an interest or role in

Other specific areas? Please state

Any other role or relationship which the public could perceive would impair or otherwise influence the individual’s judgement or actions in their role within the CCG and/or with NHS England

No interests to declare

Membership of all CCG Committees, sub-committees, Working Groups etc

To the best of my knowledge and belief, the above information is complete and correct. I undertake to update as necessary the information provided and to review the accuracy of the information provided regularly and no longer than annually. I give my consent for the information to be used for the purposes described in the CCG’s Constitution and published accordingly. Signed: ……………………………………………………………… Date: ………………………………………………………………...

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Appendix 2 - Declaration of conflict of interests for bidders / contractors template

Bidders/potential contractors/service providers’ declaration form: financial and other interests This form is required to be completed in accordance with Wandsworth CCG’s Constitution, and s140 of the NHS Act 2006 (as amended by the Health and Social Care Act 2012) and the NHS (Procurement, Patient Choice and Competition) (No2) Regulations 2013 and related guidance. Notes:

All potential bidders/contractors/service providers, including sub-contractors, members of a GP Provider Federation, advisers or other associated parties (Relevant Organisation) are required to identify any potential conflicts of interest that could arise if the Relevant Organisation were to take part in any procurement process and/or provide services under, or otherwise enter into any contract with, Wandsworth CCG, or with NHS England in circumstances where the CCG is jointly commissioning the service with, or acting under a delegation from, NHS England.

If any assistance is required in order to complete this form, then the Relevant Organisation should contact the Director of Commissioning and Planning.

The completed form should be sent to the Director of Commissioning and Planning.

Any changes to interests declared either during the procurement process or during the term of any contract subsequently entered into by the Relevant Organisation and the CCG must be notified to the CCG by completing a new declaration form and submitting it to the Director of Commissioning and Planning.

Relevant Organisations completing this declaration form must provide sufficient detail of each interest so that the CCG, NHS England and also a member of the public would be able to understand clearly the sort of financial or other interest the person concerned has and the circumstances in which a conflict of interest with the business or running of the CCG or NHS England (including the award of a contract) might arise.

If in doubt as to whether a conflict of interests could arise, a declaration of the interests should be made.

Interests that must be declared (whether such interests are those of the Relevant Person themselves or of a family member, close friend or other acquaintance of the Relevant Person), include the following:

the Relevant Organisation or any person employed or engaged by or otherwise connected with a Relevant Organisation (Relevant Person) has provided or is providing services or other work for the CCG or NHS England;

a Relevant Organisation or Relevant Person is providing services or other work for any other potential bidder in respect of this project or procurement process;

the Relevant Organisation or any Relevant Person has any other connection with Wandsworth CCG, whether personal or professional, which the public could perceive may impair or otherwise influence the CCG’s or any of its members’ or employees’ judgements, decisions or actions.

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Declarations:

Name of Relevant Organisation:

Interests

Type of Interest Details

Provision of services or other work for Wandsworth CCG or NHS England

Provision of services or other work for any other potential bidder in respect of this project or procurement process

Any other connection with Wandsworth CCG or NHS England, whether personal or professional, which the public could perceive may impair or otherwise influence the CCG’s or any of its members’ or employees’ judgements, decisions or actions

Name of Relevant Person [complete for all Relevant Persons]

Interests

Type of Interest Details Personal interest or that of a family member, close friend or other acquaintance?

Provision of services or other work for Wandsworth CCG or NHS England

Provision of services or other work for any other potential bidder in respect of this project or procurement process

Any other connection with Wandsworth CCG or NHS England, whether personal or professional, which the public could perceive may impair or otherwise influence the CCG’s or any of its members’ or employees’ judgements, decisions or actions

To the best of my knowledge and belief, the above information is complete and correct. I undertake to update as necessary the information.

Signed: ………………………………………………………

On behalf of: ………………………………………………..

Date: …………………………………………………………

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Appendix 3 - Procurement template

To be used when commissioning services from GP practices, including provider consortia, or organisations in which GPs have a financial interest

Service:

Question Comment/Evidence

Questions for all three procurement routes

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 Wandsworth 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 the Wandsworth Health and Wellbeing Board? 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?

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Why have you chosen this procurement route?1

What additional external involvement will there be in scrutinising the proposed decisions?

How will Wandsworth CCG make its final commissioning decision in ways that preserve the integrity of the decision-making process and award of any contract?0

Additional question when qualifying a provider on a list or framework or pre selection for tender (including but not limited to any qualified provider) or direct award (for services where national tariffs do not apply)

How have you determined a fair price for the service?

Additional questions when qualifying a provider on a list or framework or pre selection for tender (including but not limited to any qualified provider) 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 proposed direct awards to 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?

1Taking into account all relevant regulations (e.g. the NHS (Procurement, patient choice and competition) regulations 2013 and guidance (e.g. that of Monitor).

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Appendix 4 – GP Resources Committee Terms of Reference

GENERAL PRACTICE RESOURCES COMMITTEE

Terms of Reference

Purpose The General Practice Resources sub-committee has been established to provide oversight of CCG commissioning resources pertaining to GP practices in Wandsworth, including the objective review of business cases, investment and efficiency proposals. The sub-committee has been formed to minimise the risk of conflicts of interest between the CCG as a statutory NHS commissioning body and the GP practices that comprise the membership of the CCG.

Responsibilities The sub-committee has been established to:

Provide recommendations to the Governing Body on issues relating to the commissioning of services from General Practice within the remit of the CCG;

Provide recommendations to the Governing Body on issues relating to the commissioning of services from General Practice that may otherwise have resulted in a conflict of interest;

Adhere to the conflict of interest policy and where appropriate seek legal and/or independent advice on issues relating to the commissioning of General Practice;

Ensure clarity on the respective roles and decisions of the CCG and the South West London Joint Committee in relation to commissioning services from general practice;

Undertake independent work to support the delivery of General Practice functions where there otherwise would be a conflict of interest for members of the CCG.

Membership Members

Chair – Lay member (Governance)

Lay member (PPI)

Associate lay member x 2

Chief Officer

Director of Primary Care Development

Chief Financial Officer

NHS England (London Regional Team) General Practice contracting lead

WCCG Secondary Care consultant

General Practitioner (not within South West London)

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Additional attendees may be co-opted to join the sub-committee for relevant items at the discretion of the chair. Co-opted members may be drawn from but not limited to, the following:

Other WCCG executive officers as required

Other NHS E (London) officers

Four members of the sub-committee must be present for the meeting to be quorate, to include a minimum of one lay member and at least one of either the Chief Officer or Chief Financial Officer.

The chair of the sub-committee will ordinarily be the lay member for governance. In his absence, the lay member for PPI will act as chair.

No GP associated with a Wandsworth CCG member practice may participate in the work of the sub-committee unless invited by the chair to provide further information on a stated agenda item.

Decision-Making The sub-committee does not hold formal decision making powers, but will make recommendations to the CCG Governing Body. The sub-committee shall seek to determine their recommendations through consensus.

Accountability The Committee is accountable and will report to the CCG Governing Body. It will take into account the work of the SWL Joint Committee for Primary Medical Services, but is not accountable to it.

Frequency of Meetings The sub-committee will meet quarterly. Meetings will be added to the CCGs Corporate Cycle of Business.

Review The terms of reference of the group will be reviewed in 12 months ahead of the 2016/17 financial year.

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Appendix 5 – South West London Collaborative Commissioning - Joint Committee Draft Terms of Reference

Final version to be included

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Appendix 6 – 10 key questions These questions are provided as a prompt to CCGs in considering key issues when reviewing their current arrangements for managing conflicts of interest.

1. Do you have a process to identify, manage and record potential (real or perceived)

conflicts of interest that could affect, or appear to affect, the integrity of an award of a contract, including those that could arise in relation to co- commissioning of primary care?

2. How will the CCG make its final commissioning decisions in ways that preserve the

integrity of the decision-making process?

3. Have all conflicts and potential conflicts of interests been appropriately declared and

entered in registers, including an explanation of how the conflict has been managed?

4. Have you made arrangements to make registers of interest accessible to the public?

5. Have you set out how you will you ensure fair, open and transparent decisions about:

priorities for investment in new services

the specification of services and outcomes

the choice of procurement route?

6. How will you involve patients, and the public, and work with your partners on the Health

and Wellbeing Boards and providers (old and new) in informing these decisions?

7. What process will you use to resolve disputes with potential providers?

8. Have you summarised your intended approach in your constitution, and thought through

how your Board will be empowered to oversee these systems and processes – both how they will be put in place and how they will be implemented?

9. What systems will there be to monitor the patterns of decision making and how any

conflicts of interest were managed?

10. Has your decision making body identified and documented in the constitution the

process for remaining quorate where multiple members are conflicted?

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Appendix 7: NHS Clinical Commissioners, Royal College of General

Practitioners and British Medical Association - Shared principles on conflicts

of interest when CCGs are commissioning from member practices

December 2014 1. Introduction

The ability for CCGs to become involved in co-commissioning General Practice and primary care services has the potential to bring many benefits but it also brings with it the potential for perceived and actual conflicts of interest.

NHS Clinical Commissioners (NHSCC), the Royal College of General Practitioners (RCGP) and the British Medical Association (BMA) have decided to collectively outline their high level starting principles in managing conflicts of interest when CCGs commission from member practices. In large part this has brought together principles articulated in previous lines/guidance/steer from the above organisations and NHS England.

Our principles are applicable to each of the three primary care commissioning models open to CCGs and should not be seen as being directive or be interpreted to mean that we prefer one model over another. These decisions need to remain a local, professionally led, decision.

In developing these shared principles we would like them to sit alongside NHS England’s updated guidance on Managing Conflicts of Interest (December 2014). We are on a journey regarding the co-commissioning of primary care and we will review these principles when needed and as CCGs work through the guidance.

It should be noted that this paper is not designed to address the issue of perceived or actual conflicts of interest in CCGs holding and performance managing GP contracts under co-commissioning arrangements.

2. Our headline shared principles around conflicts of interest

We collectively agree the following in relation to managing conflicts of interest when CCGs commission from member practices:

If CCGs are doing business properly (needs assessments, consultation mechanisms, commissioning strategies and procurement procedures), then the rationale for what and how they are commissioning is clearer and easier to withstand scrutiny.

Decisions regarding resource allocation should be Evidence based, and there should be robust mechanisms to ensure open and transparent decision making.

CCGs must have robust governance plans in place to maintain confidence in the probity of their own commissioning, and maintain confidence in the integrity of clinicians.

CCGs should assume that those making commissioning decisions will behave ethically, but individuals may not realise that they are conflicted, or lack awareness of rules and procedures. To mitigate against this, CCGs should ensure that formal prompts, training and checks are implemented to make sure people are complying with the rules. As a rule of thumb, ‘if in doubt, disclose’

CCGs should anticipate many possible conflicts when electing/selecting individuals to commissioning roles, and where necessary provide commissioners with training to ensure individuals understand and agree in advance how different scenarios will be dealt with.

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It is important to be balanced and proportionate – the purpose of these tools is not to constrain decision-making to be complex or slow.

3. Addressing perceived as well as actual conflicts of interest

Conflicts of interest in the NHS are not new and they are not always avoidable. The documents we reviewed to produce this paper were all clear that the existence of a conflict is not the same as impropriety and focus on how to avoid potential or perceived wrongdoing. Most importantly all acknowledge that perceived wrongdoing can be as detrimental as actual wrongdoing, and risks losing confidence in the probity of CCGs and the integrity of wider clinicians such as GPs in networks/federations, individual practices and partners.

The RCGP/NHS Confederation also notes evidence from the BMJ that people think they aren’t biased by potential conflicts but often are so the common theme is - if in any doubt it’s important to disclose.

The RCGP/NHS Confederation and NHS England Guidance identify four types of potential conflict of interest:

direct financial;

Indirect financial (for example a spouse has a financial interest in a provider);

Non-financial (i.e. reputation) and;

Loyalty, i.e., to professional bodies

The BMA recognises that for CCGs there will be situations where the best decision for the population and taxpayers is not in the best interest of individual patients (for whom GPs are required to advocate) and that this can create a perceived conflict. The RCGP/NHS Confederation paper acknowledges this but in terms of the governance when commissioning services.

4. Planning for populations

CCGs must always demonstrate that their commissioned services meet the needs of their local populations, as such CCGs will need to work with their Health and Wellbeing Board’s or other local strategic bodies to ensure there is alignment to local strategic plans.

What is clear from all the existing guidance is that CCGs will need to identify the situations where they are involving their Board clinicians to strategically plan for their population, and situations where their Board clinicians need to be separated from procurement, planning and decision-making processes. In the former it is critically important to secure clinical expertise. In the latter, the CCG will need to manage risks around perceived and actual conflicts in relation to the tendering of services.

The BMA outlines that decisions regarding resource allocation should be evidence based, and there should be robust mechanisms to ensure open and transparent decision making. As such, GP involvement must be agreed at each stage of the commissioning and procurement process so that potential risks of conflicts are appropriately defined and mitigated early on.

5. Good practice – for CCGs

All the guidance suggests CCGs must have robust governance plans in place to maintain confidence in the probity of their own commissioning, and maintain confidence in the integrity of clinicians.

The RCGP/NHS Confederation suggests using existing NHS guidance as a starting point:

Identify potential conflicts

Declare interests in a register

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Exclude individuals from discussion or decision making if financial interest exceeds 1% equity in the provider organisation - depending on the nature of the discussion (we would also add that includes considering the share of the contract value to make sure there are no loopholes, this might also apply to practices with profit sharing arrangements).

Continue to manage conflicts post-decision i.e. contract managing (carefully separating overall strategy development for populations from individual procurement processes. The former will be important for CCG lay involvement will be important and include secondary care clinicians and non-executive Board nurses, the latter can be managed by managers.

NHS England guidance also says that an individual with a ‘material interest’ in an organisation which provides or is likely to provide significant business should not be member of CCG Board. The BMA suggests anything above 5% equity is a material interest. The RCGP/NHS Confederation reference this threshold but also say that something lower than a 1% stake could also be a material interest (if the size of the bid is significant).

Clearly these thresholds need to be considered in relation to individual practices and GP partners once co-commissioning is in place. The perceived risks must be recognised early on and we feel some worked case study examples would be helpful for CCGs as they work through the updated guidance. NHSCC, the RCGP and the BMA are planning to work with NHS England and Monitor to identify these examples.

NHSCC believe that CCG lay members, secondary care doctors and nurses on governing bodies play a vital role in both the design, implementation, leadership and monitoring of conflicts of interest systems and processes. They can provide robust challenge and ultimately a protection for GPs working in both the commissioning and provision of health care. Enabling them to carry out their roles in this regard is vital.

CCGs should also be proactive in their approach when considering conflicts when electing/selecting people, doing a proper induction (i.e. include continuous training and review at both Board and membership (assembly level) and ensuring understanding from individuals, and agree in advance how different scenarios will be dealt with. The CCG should ensure individuals are prompted to declare an interest but not absolved from their responsibility to declare as well. Again, CCG lay members, secondary care doctors and nurse members of the Board have a critical role in this process, as an independent arbiter and as those providing appropriate scrutiny and oversight.

NHS England’s Code of Conduct guidance specifically explores when CCGs are commissioning services from their own GP member practices. When CCGs are commissioning from federations of practices, the same guidance should apply.

As practical support NHS England have also produced an updated code of conduct template for use when drawing up local plans (see their updated guidance). The template asks a series of questions to provide assurance to Health and Wellbeing Boards that the service meets local needs, and to the Audit Committee or external auditors that robust process was used to commission the service, select the appropriate procurement route and address potential conflicts of interest.

6. Good practice - for individuals

The current guidance suggests that individuals making decisions in CCGs do so with the Nolan principles of public life in mind: selflessness, integrity, objectivity, accountability, openness, honesty, and leadership.

They also refer to the guidance the General Medical Council (GMC) has produced for doctors including:

http://www.england.nhs.uk/wp-content/uploads/2012/09/c-of-c-conflicts-of-interest.pdf

http://www.gmc-uk.org/guidance/ethical_guidance/21161.asp

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You must not allow any interests you have to affect the way you prescribe for, treat, refer or commission services for patients.

If you are faced with a conflict of interest, you must be open about the conflict, declaring your interest informally, and you should be prepared to exclude yourself from decision making.

You must not try to influence patients’ choice of healthcare services to benefit you, someone close to you, or your employer. If you plan to refer a patient for investigation, treatment or care at an organization in.NHS England guidance indicates that individuals must declare an interest as soon as they come aware of it, and within 28 days. More informally, the RCGP/NHS Confederation also suggested the simple ‘Paxman test’ - whether explaining the situation to an investigative reporter/journalist like Jeremy Paxman would cause embarrassment. We think it would be helpful to develop this type of text into a tool for CCGs to use locally.

NHS England guidance indicates that individuals must declare an interest as soon as they come aware of it, and within 28 days.

Finally, the BMA suggested that commissioner doctors:

Declare all interests, even if they are potential conflicts or the individual is unsure whether it counts as a conflict, as soon as possible.

Update a register of interests every three months.

Doctors must be familiar with their organisation’s formal guidance.

If individual doctors have any questions, they should seek advice from colleagues, err on the side of being open about conflicts of interest, or seek external advice from professional or regulatory bodies.

In addition to the above, the RCGP suggests there should also be a requirement to update the register of interests if a material difference arises in the circumstances of an individual at any point. 7. Procurement processes – CCGs and member practices

According to the BMA guidance, when CCGs are procuring community level services, these contracts are often below threshold requiring a competitive tender process.

There are a number of procurement options for CCGs in this situation – for example a few may include: 1. Competitive tender where GP practices are likely to bid 2. AQP where GP providers are likely to be among the qualified providers 3. Single tender from GP practices From the guidance that exists different questions arise around conflicts of interest when the above procurement processes are used. For example:

Identifying whether approaches such as AQP are being used with the safeguards to ensure that patients are aware of the choices available to them.

If single tender is the route used, CCGs will need to demonstrate a few things-

depending on the nature of the procurement. For example that there are no other capable providers, why the successful bid was preferred to the others and the impact of disproportionate tendering costs. (Monitor’s procurement guidance provides many useful steers on what CCGs will need to demonstrate)

For primary care co-commissioning, NHSCC believes one of the elements to include on procurement processes are the issues around standing financial orders and schemes of delegation which should not allow CCGs to divide primary care budgets into smaller budgets to circumvent the procurement process. NHSCC’s lay member network will have examples/steer on the correct wording to use from previous local experiences.

https://www.gov.uk/government/publications/procurement-patient-choice-and-competition-regulations-guidance

https://www.gov.uk/government/publications/procurement-patient-choice-and-competition-regulations-guidance

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Regardless of what the local application is the most important part of this process is transparency. NHS England says to set out the details, including the value of all contracts on the CCG website. If they are using AQP, the types and prices of services they are commissioning should be on the website. All of this information should also be in the CCG’s annual report.

When making procurement decisions, the current guidance suggests that anyone with a perceived or material conflict should be excluded from decision making, either both excluded from voting or from discussion and voting. What is not clear in the guidance is how far back this rule goes – i.e. to the planning stage or just the development of the specification and procurement. CCGs will need to agree that line locally.

According to the reviewed guidance if all GPs and practice representatives due to make a decision are conflicted, then the CCG should be:

Referring decisions to the Board, so that lay members / the nurse / the secondary care doctor can make the final decision. However this may weaken GP clinical input into decision making.

Co-opting individuals from the HWB or another CCG onto the Board, or invite the HWB / another CCG to review proposal to provide additional scrutiny (these individuals would only be able to participate in decision making if this was set out in the CCG constitution)

Ensure that quoracy rules enable decisions to be made in this circumstance

Plan ahead to ensure that agreed processes are followed.

Use an appropriately constituted arms-length external scrutiny committee to ensure probity (recommended by the BMA)

CCGs can use commissioning support services (CSS) to reduce potential conflicts, for example a CSS can help select the best procurement route and prepare bids etc. However, this cannot completely eliminate the conflict as CCGs are responsible for signing off specification and evaluation criteria, signing off which providers to invite to tender, and making the final decision on the selection of the provider. The CCG is responsible for ensuring that their CSS or other third parties are compliant with regulations in the same way that the CCG must be.

NHS England also suggest any questions about the service going beyond the scope of the GP contract should be discussed with NHS England area teams, clearly that would need review in light of new delegated co-commissioning arrangements.

Networks and Federations

We note that the increasing number of GP networks and federations could potentially present an added complication to local procurement processes. If most or all CCG

member practices are part of the local federation, then this could mean that a practice not part of the federation/excluded from a federation may not have the opportunity to win contracts through competitive tender – because the process is more suited to federated organisations. One way to mitigate this would be for the CCG to always design and procure service specifications according to best practice (with openness and transparency), thereby supporting all practices to bid. One area to be careful about is when all the GPs on a Board have a declared interest in local federations – this makes decision making and accountability complex and the CCG will need to work that through carefully with the input of its lay members and wider clinicians on the Board. Again, an external scrutiny committee with non-conflicted clinicians such as from a neighbouring CCG may be helpful.

8. Local engagement Separately, the BMA suggests that LMCs should be involved in CCGs either by formal consultation, a non-voting seat on Board, or as an observer on Board. They indicate that a

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non-voting Board seat would be the best option. Neither of the other two papers we reviewed address this.

9. Other conflicts of interest issues for consideration

Personal conflict The RCGP/NHS Confederation highlight that in CCG governing bodies a personal conflict can arise because CCG leaders are elected by their constituent GP members. There could be a perception that CCG governing bodies are favouring the most vocal or influential of their GP practice members. Related to this is the potential indirect interest for elected GPs to build a constituency of supporters within their CCG.

The CCG is responsible for ensuring that their CSS or other third parties are compliant with regulations in the same way that the CCG must be.

NHS England guidance suggests that in the case of every GP Board member being conflicted, the lay members, registered nurse and secondary care doctor make the decision (and that the constitution is written so that this is quorate). This could however mean that decisions would be taken without a GP perspective. Alternatively, CCGs may bring in members of the Health and Wellbeing Board or another CCG to provide oversight, or as the BMA suggests use an external scrutiny committee to make decisions.

Use of primary care incentive schemes In its guidance, the BMA highlights its concerns about the professional and ethical implications of CCGs applying incentive schemes to reduce referral or prescribing activity. The BMA urges any doctor, whether commissioner or provider, to consider the schemes carefully and ensure that scheme is based on clinical evidence. NHSCC suggests that one solution is to ensure the expertise of secondary care clinicians and nurses on governing bodies plays an important part in providing clinical input and lay members can scrutinize commercial/ financial and performance data.

The RCGP acknowledge that it is not ethical to under-treat or under-refer for financial gain, but is not unethical to ‘review and reflect’ on variations in referral/prescribing rates and try to reduce referrals in line with evidence or best practice. Note to the reader:

This paper has been developed from a review of three guidance documents and brings together previous lines/guidance from NHSCC, NHS England, the RCGP and the BMA.

BMA ‘Conflicts of interest in the new commissioning system: Doctors in commissioning roles’ April 2013

RCGP/NHS Confederation ‘Managing conflicts of interest in clinical commissioning

groups’ September 2011

NHS England ‘Managing conflicts of interest: guidance for clinical commissioning groups.’ March 2013 (includes Commissioning Board Document that precedes it). We have also read across the paper to the new version of this document published December 2014.

NHSCC have also supplemented the principles raised in this paper with some points for steer that have been raised by members of its lay member network.

http://bma.org.uk/-/media/files/pdfs/practical%20advice%20at%20work/commissioning/conflictsofinterestdoctorsascommissioners.pdf

http://www.rcgp.org.uk/policy/~/media/Files/CIRC/Managing_conflicts_of_interest.ashx

http://www.england.nhs.uk/wp-content/uploads/2013/03/manage-con-int.pdf

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Appendix 8: Section 7 of Monitor’s Substantive Guidance on the Procurement, Patient Choice and Competition Regulations

7.1 Introduction

This section provides guidance for commissioners on handling conflicts of interest. Regulation 6(1) of the Procurement, Patient Choice and Competition Regulations prohibits commissioners from awarding a contract for NHS health care services where conflicts, or potential conflicts, between the interests involved in commissioning such services and the interests in providing them affect, or appear to affect, the integrity of the award of that contract.

Regulation 6(2) requires commissioners to maintain a record of how any conflicts that have arisen have been managed.

S.14O of the National Health Service Act 2006 includes further requirements relating to conflicts of interest. Guidance on how to comply with these requirements (including managing conflicts of interest) has been published by NHS England and is available on NHS England’s website.

Members of commissioning organisations that are registered doctors will also need to ensure that they comply with their professional obligations, including those relating to conflicts of interest. These are described in the General Medical Council’s guidance, Good Medical Practice and Financial and commercial arrangements and conflicts of interest. These are available on the General Medical Council’s website.

7.2 What is a conflict?

Broadly, a conflict of interest is a situation where an individual’s ability to exercise judgment or act in one role is/could be impaired or influenced by that individual’s involvement in another role.

For the purposes of Regulation 6, a conflict will arise where an individual’s ability to exercise judgment or act in their role in the commissioning of services is impaired or influenced by their interests in the provision of those services.

7.3 What constitutes an interest?

Regulation 6 of the Procurement, Patient Choice and Competition Regulations makes it clear that an interest includes an interest of:

a member of the commissioner;

a member of the Board of the commissioner;

a member of the commissioner’s committees or sub-committees, or committees or sub-committees of its Board; or

an employee. Other interests that might give rise to a conflict include the interests of any individuals or organisations providing commissioning support to the commissioner, such as CSUs, who may be in a position to influence the decisions reached by the commissioner as a result of their role.

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7.4 What interests in the provision of services may conflict with the interests in commissioning them?

A range of interests in the provision of services may give rise to a conflict with the interests in commissioning them, including:

Direct financial interest - for example, a member of a CCG or NHS England who has a financial interest in a provider that is interested in providing the services being commissioned or that has an interest in other competing providers not being awarded a contract to provide those services. Financial interests will include, for example, being a shareholder, director, partner or employee of a provider, acting as a consultant for a provider, being in receipt of a grant from a provider and having a pension that is funded by a provider (where the value of this might be affected by the success or failure of the provider).

Indirect financial interest - for example, a member of a CCG or NHS England whose spouse has a financial interest in a provider that may be affected by a decision to reconfigure services. Whether an interest held by another person gives rise to a conflict of interests will depend on the nature of the relationship between that person and the member of the CCG or NHS England. Depending on the circumstances, interests held by a range of individuals could give rise to a conflict including, for example, the interests of a parent, child, sibling, friend or business partner.

Non-financial or personal interests - for example, a member of a CCG or NHS England whose reputation or standing as a practitioner may be affected by a decision to award a contract for services or who is an advocate or representative for a particular group of patients.

Professional duties or responsibilities. For example, a member of a CCG who has an interest in the award of a contract for services because of the interests of a particular patient at that member’s practice.

Commissioners will also need to consider whether any previous or prospective roles or relationships may give rise to a conflict of interest. A conflict of interest may arise, for example, where a person has an expectation of future work or employment with a provider that is bidding for a contract.

7.5 Conflicts that affect or appear to affect the integrity of an award

Even if a conflict of interest does not actually affect the integrity of a contract award, a conflict of interest that appears to do so can damage a commissioner’s reputation and public confidence in the NHS. Regulation 6 of the Procurement, Patient Choice and Competition Regulations therefore also prohibits commissioners from awarding contracts in these circumstances.

As well as affecting the decision to award a contract and to which provider, a conflict of interest may affect a variety of decisions made by a commissioner during the commissioning cycle in a way that affects, or appears to affect, the integrity of a contract award decision taken at a later point in time. For example, conflicts of interest might affect the prioritisation of services to be procured, the assessment of patients’ needs, the decision about what services to procure, the service specification/design, the determination of qualification criteria, as well as the award decision itself.

Conflicts might arise in many different situations. A conflict of interest might arise, for example where the spouse of a staff member of a local area team at NHS England is employed by a provider that is bidding for a contract. A conflict could also arise

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where a CCG is deciding whether to procure particular services from GP practices in the area or from a wider pool of providers, or where it is deciding whether to commission services that would reduce demand for services provided by GP practices under the NHS General Medical Services contract.

Depending on the circumstances of the case, there may be a number of different ways of managing a conflict or potential conflict of interest in order to prevent that conflict affecting or appearing to affect the integrity of the award of the contract.

It will often be straightforward to exclude a conflicted individual from taking part in decisions or activities where that individual’s involvement might affect or appear to affect the integrity of the award of a contract. The commissioner will need to consider whether in the circumstances of the case it would be appropriate to exclude the individual from involvement in any meetings or activities in the lead up to the award of a contract in relation to which the individual is conflicted, or whether it would be appropriate for the individual concerned to attend meetings and take part in discussions, having declared an interest, but not to take part in any decision-making (not having a vote in relation to relevant decisions). It is difficult to envisage circumstances where it would be appropriate for an individual with a material conflict of interest to vote on relevant decisions.

Where it is not practicable to manage a conflict by simply excluding the individual concerned from taking part in relevant decisions or activities, for example because of the number of conflicted individuals, the commissioner will need to consider alternative ways of managing the conflict. For example, depending on the circumstances of the case, it may be possible for a CCG to manage a conflict affecting a substantial proportion of its members by:

involving third parties who are not conflicted in the decision-making by the CCG, such as out-of-area GPs, other clinicians with relevant experience, individuals from a Health and Wellbeing Board or independent lay persons; or

inviting third parties who are not conflicted to review decisions throughout the process to provide ongoing scrutiny, for example the Health and Wellbeing Board or another CCG.

Whether a conflict of interests affects or appears to affect the integrity of a contract award (such that the commissioner may not award the contract) will depend on the circumstances of the case. The list of factors in the box below is not exhaustive, but covers some of the core factors that a commissioner is likely to need to consider in deciding whether it is appropriate to award a contract. See box below. Conflicts that affect or appear to affect the integrity of a contract award: Examples of factors that a commissioner is likely to need to consider in deciding whether or not it can award a contract:

the nature of the individual’s interest in the provision of services, including whether the interest is direct or indirect, financial or personal, and the magnitude of any interest;

whether and how the interest is declared, including at what stage in the process and to whom;

the extent of the individual’s involvement in the procurement process, including, for example, whether the individual has had a significant influence on service design/specification, has played a key role in setting award criteria, has been involved in deliberations about which provider or providers to award the contract to and/or has voted on the decision to award the contract; and

what steps have been taken to manage the actual or potential conflict (or example, via an external review of the decisions taken throughout the procurement process,

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including whether a conflict of a member of a CCG has been dealt with in accordance with the CCG’s constitution).

7.6 Recording how conflicts have been managed

Regulation 6 of the Procurement, Patient Choice and Competition Regulations also requires commissioners to maintain a record of how any conflicts that have arisen have been managed.

Commissioners will need to include all relevant information to demonstrate that the conflict was appropriately managed. See box below. Examples of what information a record might contain: Commissioners might include the following information in a record of how a conflict of interest has been managed:

the nature of the individual’s interest in the provision of services, including whether the interest is direct or indirect, financial or personal, and the magnitude of any interest;

whether and how the interest is declared, including at what stage in the process and to whom;

the extent of the individual’s involvement in the procurement process, including, for example, whether the individual has had a significant influence on service design/specification, has played a key role in setting award criteria, has been involved in deliberations about which provider or providers to award the contract to and/or has voted on the decision to award the contract; and

what steps have been taken to manage the actual or potential conflict (or example, via an external review of the decisions taken throughout the procurement process, including whether a conflict of a member of a CCG has been dealt with in accordance with the CCG’s constitution).

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Appendix 9 – Conflict of interest discussion scenarios Adapted from the RCGP/NHS Confederation brief on managing conflicts of interest September 2011

SCENARIO 1 Three GPs who are members of the Board of a CCG have recently bought a small number of shares in Company X – a company set up by an investor and 16 local GP practices to provide community health 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 outpatient 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 Although the GPs are not major shareholders in Company X, a conflict clearly exists as they could have made 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 has to consider whether Company X has been given 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 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 when they bought the shares, and again at any meeting when the CCG began to discuss its commissioning strategy. The CCG should have a policy that clearly identifies circumstances under which members of the Board should not participate in certain activities and considers the material nature of any conflict and whether the individuals could successfully discharge their responsibilities. The Board will need to consider whether this policy requires them to exclude these members from certain decisions about the commissioning strategy, even if this means removing three key decision-makers from a central part of the group’s business. Even if not excluded from discussion of the strategy, these individuals may well be excluded by the group’s policies from being involved in the development of the gynaecology service specifications (other than to the extent any other potential supplier might be involved in such service planning), or from any subsequent contract monitoring. CCGs may wish to consider whether or not involvement with a provider company likely to develop services and bid for contracts in this way is compatible with being a CCG Board member at all, as this scenario is likely to arise again. This situation should have been identified and dealt with at the point when individuals were being selected to join the CCG. A decision should have been taken at that point on whether or not it would be appropriate for owners, directors or shareholders of local community service providers to be members of the Board. If not, these individuals could not have been selected, or would have been required to resign at the point when they decided to buy the shares.

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SCENARIO 2 The diabetes lead of a CCG has been working on a community diabetes project for two years and has a plan to reduce diabetes outpatients 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

The CCG should have set out and communicated 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, the CCG should consult on, and then be absolutely clear about, who will have the opportunity to provide the service model. This should 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. Other qualified providers should be 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.

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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. Dr X should declare an interest and he should exclude himself from any decision-making about this project. Any decision subsequently taken by the CCG should depend on whether or not the product on offer would help it to achieve an existing, stated commissioning objective (that is to say the CCG should not accept it just because it is on offer), and whether or not the deal being offered was in line with the CCG’s existing policies for partnership working, joint ventures and sponsorship. If the CCG has a clear, prioritised commissioning strategy and policies for working with other organisations from the outset, this decision should be fairly straightforward. There is a question as to whether or not the group should accept this offer at all. Although it may meet an explicit commissioning objective, it may not be appropriate even then to accept the offer without some analysis of whether other companies might be willing or able to offer the same or better. The concern is not necessarily about the personal relationships involved, but more generally about whether this is an acceptable way for a public body to do business.

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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 She should 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. If the CCG has clear prompts and guidelines for its members, this should be obvious to Dr A, who should decide to exempt herself. If the CCG is clear at the outset about its commissioning priorities and strategy and its procurement framework (setting out what kind of services would be tendered under what circumstances), its decision to tender for the service should not come as a surprise to the trust, or to the individuals involved. CCGs need to ensure that they do not discourage providers, or their own members, from being innovative and entrepreneurial by being inconsistent or opaque in their commissioning decisions and activities.

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