Conflict of interest has been an issue for GP commissioners since the days of primary care groups, but the reforms are set to open a whole new can of worms, reports Alisdair Stirling
Under PBC, concerns about conflicts of interest often overtook service redesign issues, but the realisation that GPs have always been commissioners to some extent was normally enough to allay fears. But with the latest reforms, conflicts of interest could be centre stage again.
Last month, the Co-operation and Competition Panel (CCP) approved a Warwickshire hospital taking over three GP practices – if they overcome potential conflicts of interest, for instance by displaying signs and leaflets at the surgeries making it clear the premises are owned by the trust. The model was being introduced under Transforming Community Services.
The BMA is keeping a close eye on such trends and is opposed to the blurring of the boundaries. Dr Nigel Watson, GPC member and chief executive of Wessex LMCs, says: ‘I can't see why a hospital would want to run a general practice. They have no experience of it. I can see no benefit and lots of problems.'
The prospect of entire care pathways being put out to tender, which GPs will be allowed to bid for, also pushes conflicts of interest into new territory.
And earlier this year, Pulse reported on proposals that GP consortia pool commissioning budgets and hand them to private companies in which GPs would own a 20% stake. Not an option likely to be pursued by most consortia, but the potential for conflicts of interest are obvious.
Probity and transparency
Tim Jones, an independent commissioning specialist working with WG Consultancy, says: ‘The possibility for conflict of interest is being ramped up by a factor of around 100. For example, GP providers are represented by LMCs and GP commissioners by consortia – but in some places you have GPs on both bodies. The boundaries between core GMS and proactive primary care are not obvious and vary from place to place.'
It is only just becoming clear how big this can of worms is. When the Health Select Committee scrutinised the Health and Social Care Bill, it recommended commissioning be overseen by a wider spread of health professionals to mitigate conflicting interests.
New guidance on probity and transparency – both from the Government and the BMA – is rumoured to be imminent. But Dr Nigel Watson believes the matter should be easy to sort out:
‘If you're in a provider company, you shouldn't commission. If you're an LMC officer, you shouldn't be on the consortium commissioning board. If you're a GP provider company director, you can't be a commissioning decision-maker. In terms of the individual GP's conflict of interest, this happened under fundholding. But patients are smart. They know when their GP is doing the best for them.'
The lack of clear rules on the commissioner/provider split and the power of Monitor and the new NHS Commissioning Board have suggested the Government has purposely created a lawyer's charter – not to mention open season on GPs.
And lawyers are keenly aware of the perils that await. Ben Troke and Oliver Pritchard, partners in Browne Jacobson solicitors, cite two main legal risks arising from conflict of interest.
Oliver Pritchard says: ‘We've seen two cases in the last fortnight where acute trusts are being invited by GP consortia to collaborate and set up provider ventures. There's no suggestion of anything improper, but if another provider loses out to a provider organisation part owned by a group of GPs, they might smell a rat.'
He says it is only a matter of time before GPs face a challenge from an unsuccessful provider organisation. ‘PCTs regularly get challenged. This hasn't gone as far as court – it's dealt with by internal process. However, private providers have challenged decisions successfully. And as more non-NHS providers come in, they're more likely to go to court.'
Ben Troke says another major legal risk for GPs will come from patients' perceptions of the quality premiums GPs will receive for achieving quality and financial standards: ‘If you take quality as a given, the only payment will appear to be for saving money. GPs could be seen as getting a cash incentive not to spend all the budget.
‘I think we're heading towards the perfect storm. Downward pressure on budgets, higher patient expectations, no open debate about rationing, increased demand. There will be more legal challenges that will be harder to deal with than ever before. The postcode lottery will be worse. NICE is being cut back. Patients will be shopping around.'
‘The next few years will be all about patients challenging when GPs say ‘‘no''. GPs used to be able to blame the PCT or NICE – but this is the double-edged sword of being given the budgets.'
Will conflicts of interest dominate the NHS reforms?
