Does my premises constitute a conflict of interest?
Lawyer Edwina Farrell advises GP commissioners and providers on an ethical question
A conflict of interest arises (or has the potential to arise) where the ability to act impartially is compromised as a result of some other factor. For example – and a concern in terms of GP involvements with CCGs – where a GP might exercise his judgment for the benefit of his own commercial interest rather than impartially as a commissioner of services for the community he or she serves.
If my premises are part of my partnership agreement, does it count as an ‘interest'?
There is some concern as to just how widely the issue of a conflict of interest might range and in particular with regard to GP surgery property.
GPs tend to have partnership deeds recording that their premises form part of the assets of the business. Even where the premises are not formally recorded as a partnership asset but are owned by GP partners who are going to be representatives of a practice on the local CCG, the GP in question needs to consider the position should a potential for conflict arise.
If a GP has a share or stake in the ownership of the property, the issue of whether or not it is declared within a deed to be a partnership asset is of secondary importance to the sheer fact that his ownership might constitute a conflict, as the award of a contract for the provision of a particular service to be carried out from that property may confer a financial benefit on him as an owner of the property.
However, simply owning a property from which a GP already carries out his NHS contract medical services should not in itself pose a major risk of conflict. A GP who provides the usual services from a property in respect of which he has a freehold or leasehold interest will (for the time being at least) attract reimbursement assessed by the district valuer.
If my premises counts as an ‘interest' do I need to list it on a Register of Interests?
If your property is only occupied by your own practice and is not likely to be used for separately commissioned services outside of your own NHS contract, it is unlikely it will be an interest that will produce the potential for a conflict.
There is guidance available from a number of regulatory bodies, including the GMC and RCGP, to aid GPs in terms of identifying and dealing with conflicts. However, any potential conflict will turn on its own facts so you should seek professional advice if you are in any doubt whatsoever.
As part of dealing with governance issues, registers of interests will be set up so that any GP on their local CCG can notify the group of his interest, and due consideration be given to the position in any instance. Where a party does have any form of financial interest it is unlikely that he can be involved in making a particular decision. To permit otherwise would have the potential for a conflict of interest to arise. The system is designed to allow a fair allocation of resources so that having an interest may not prevent altogether a contract being awarded, but simply ensure that a conflict does not arise by permitting decisions in situations where judgment may not be impartial.
If I provide a service under Any Qualified Provider at my surgery, does my premises count as an ‘interest'?
Many practitioners own properties that are partly let to other providers beyond their own practice. This does have the potential to create a conflict of interest. For example, in the event that GP premises are partly let to any qualified provider, a conflict could arise where a GP owner formed part of the decision-making panel with regard to a contract being awarded to that provider.
If there are two (or more) bidders for a contract, one of which is the tenant of a GP owner, a conflict could arise where the GP owner favoured the existing tenant, and thus the ongoing income stream within his premises. As such, a GP with an interest in premises that are partly let or occupied by other providers should consider declaring such an interest. If in doubt take advice!
Might disposing of or acquiring premises create a conflict of interest? How can I be sure I am complying with Estatecode requirements/Best Value?
If the disposal or acquisition of an interest in a property has an impact on a service that is being commissioned, or has the effect of altering the market for the benefit of a GP or their practice, then this could amount to a conflict of interest.
By and large, most acquisitions of surgery premises will not have such an impact and are usually required for internal partnership reasons. Again, this may require attention primarily where the premises comprise a location from which services beyond the delivery of the core GMS/PMS services are provided, especially if the property caters for a specialised service or activity.
However, in terms of premises costs, the district valuer will still assesses levels of reimbursement and whether particular premises constitute good value. Estate code may only be significant if lettings are being made to NHS bodies. Once again, taking professional advice before embarking on any such arrangements is the first step in ensuring any potential conflict is dealt with.
Why do conflicts of interest matter so much?
The issue of a conflict of interest – or even the potential for one – is of course all the more prominent now that GPs will be involved in commissioning services as part of the new health act. If every practice has to elect a member to sit on the CCG, and the CCG commissions local NHS services, then it is likely that a GP could be asked to make decisions that may have the result of conferring a benefit on his or her own practice.
Edwina Farrell is an associate at Hempsons