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Picking apart the guidance for common scenarios

Conflict of interest in PBC has many guises and clear guidance exists for all of them. Emma Wilkinson asked the experts to interpret the guidance relating to four common situations

Conflict of interest in PBC has many guises and clear guidance exists for all of them. Emma Wilkinson asked the experts to interpret the guidance relating to four common situations

Scenario 1: We need to put it out to tender

What's happening

PCTs have been quick to put anything and everything out to tender because of fears of breaking competition rules and having too many players on the field.

But misunderstanding around tendering has caused conflict of interest to raise its head more frequently than is necessary.

If PCTs used the any willing provider model (AWP), many perceived problems around conflict of interest would disappear.

Expert opinion

Dr Stewart Findlay, practice-based commissioning chair at Durham Dales cluster, says there has been reluctance by PCTs to use the AWP model because they are worried about relinquishing control.

‘The guidance is that unless you are going for a single provider you should use AWP. For example, if you're going to have a dermatology service, you should allow, at any time of the year, any willing provider to come along and say "we can provide the service or a bit of the service, here are our quality standards, here's what we're going to do and here's the targets we're going to achieve for you".

‘In our PCT they have said, "We need to go out to tender because a lot of people are interested." But it is not the job of the PCT to restrict the number of providers and it would be impossible for them to do so.'

The AWP model also gets around EU rules on thresholds at which services must be put out to tender. If, as a PCT, a single provider for a costly service such as forensic psychiatry is needed, it must go to tender.

But for most specialities, such as dermatology, urology, gynaecology, cardiology, and so on, there is a tariff so the AWP model is appropriate, even if the service costs £500,000.

‘Perceived conflict of interest has caused problems. But actually for the little providers – the GPs – if you use the AWP model it doesn't really matter,' says Dr Findlay.

‘There's no reason why GPs can't just come up with a provider plan – if they have a good idea, let's help them get on with it.

‘It gives PCTs more control because they can spend their time performance managing, which should be their main role.'

The guidance to quote

Clinical commissioning: our vision for practice-based commissioning, 2009

‘What is clear is that robust governance has too often been mistaken to mean drawn-out approval processes or open tendering for all new services, sometimes linked to simplistic views about commissioning and provision.

‘There will be occasions where a single service provider is needed and where it is right to test the market through competitive tender.

‘World-class commissioners will, however, increasingly use any willing provider arrangements to stimulate a range of providers for more specialist services and extend patient choice into community settings.'

Scenario 2: There is concern GPs on the PEC will be able to influence commissioning decisions to their benefit

What's happening

There are GPs who wear many hats, so separating their roles and responsibilities and working out what is, and what is not, a conflict of interest may be tricky.

For example, GPs involved in developing service specifications or business cases may also be present on the PEC or other decision-making board. As such they would be involved in approving them and/or deciding on the procurement method to use.

The guidelines clearly state that to ensure the board can arrive at a decision based on high-quality informed dialogue, the PCT needs the technical expertise and population knowledge of GPs.

This kind of situation should not be a barrier but GPs with an interest in a decision need to say so and exclude themselves.

Expert opinion

NAPC chair Dr Johnny Marshall says in his experience as chair of both a commissioning collaborative and a separate provider organisation, this can be a problem, but if everyone is up-front and transparent about their interests at the start, it needn't be.

‘It's how you manage it that is crucial and the very first point is everyone being open and honest about the different roles they have. If I'm in a commissioning meeting and there's a potential for conflict of interest and people start to get uncomfortable, I can be excluded from that decision or that meeting.

‘It cannot be about how you remove it, but the default position of PCTs seems to be to take away the risk completely, which is not realistic,' explains Dr Marshall.

He says the original guidance said PCTs could take four weeks to consider a business plan or eight weeks if they needed outside advice. ‘For example, if every member of the PEC was a potential provider then you need to go outside for advice. What shouldn't happen is that the decision is made without clinical input or not made at all.'

The guidance to quote

Practice based commissioning: practical implementation, 2006

‘PCTs regularly draw upon clinical expertise to help shape and steer plans to improve the health of local communities. This means there may be a potential conflict of interest for clinicians such as GPs who are involved in the assessment of PBC business cases in which they may have a direct interest.

‘To avoid conflicts of interest in the re-provision of services through PBC, there should be clear accountability to the PCT board through a committee or subcommittee of the PCT. Clinicians must exclude themselves from decisions on any PBC business cases in which they have an interest or with which they are associated.'

Scenario 3: You're told it's a conflict of interest to refer patients to your own service

What's happening

Patient choice has been central to Department of Health policy in recent years but maintaining the ‘integrity of choice' in the era of alternative PBC provider services has caused headaches. There has been much confusion over the conflict of when a GP is both provider and referrer (in effect commissioner), yet the solution is clear.

A GP who decides to provide an additional service to patients on the practice's registered list does not have to worry about this issue.

Expert opinion

Dr James Kingsland, NAPC president, explains: ‘If a practice says we want to extend care to our patients – say initiating insulin which has traditionally been done in secondary care – and they're only going to do that for their registered population and it is not contestable, then there isn't a problem.'

It is an issue where a practice or consortium becomes a provider for a wider population.

‘Let's take gastroscopy as an example.

A consortium of 10 practices has got a scoper who has been practising in the hospital, and they decide to set up their own company and get the GP to do the scopes for them.

‘The majority of GPs don't scope, they don't have the facilities for that so you need to make it available to all patients. In that case, you are a "willing provider" and you have an AWP contract.

‘It means that when you refer to that service, you need to ensure your patients are getting choice,' he says.

Through Choose and Book it should be relatively straightforward. The patient sees they have three options locally and they ask the GP about them. At that point the GP needs to declare that they have a financial interest in option number three. As long as they inform the patient, they are fulfilling choice and competition rules.

Dr Kingsland says he is not sure why there has been so much confusion over this perceived conflict of interest as the guidance is very clear.

‘We just need to read the rules. The problem is that the policy on PBC has not been developed in a consistent way. It is a basic concept but there has been a lack of understanding.'

The guidance to quote

Good Medical Practice, GMC 2006 – and click on ‘Guidance'

‘If you have a financial or commercial interest in an organisation to which you plan to refer a patient for treatment or investigation, you must tell the patient about your interest.

‘When treating NHS patients you must also tell the healthcare purchaser.'

Scenario 4: Claims that gPs can't be commissioner and provider

What's happening

PBC clusters may have been set up with a commissioning role in mind but what happens when they make the leap into providing services as well?

There is misunderstanding around whether practices or consortiums can act as both commissioner and provider, when ultimately GPs have been doing both roles since long before PBC began.

Expert opinion

Dr Mike Dixon, NHS Alliance chair, agrees that there is a conflict between the commissioner and provider role but says it is overplayed.

‘PCTs have been commissioners and providers all along so to suddenly focus in on the conflict between commissioning and provision at the practice level seems a bit post hoc. Necessarily, practices are going to do both and that's how it should be.

‘We need to accept there's dichotomy but we need strong leadership to stop the whole thing becoming needlessly bureaucratic and there needs to be an element of trust.

‘One of the problems we see is that practices give up on the commissioning role and just look at their provider role, which is a real pity,' he says.

A simple solution, says Dr Dixon, is to set up what are in effect two different companies, so the cluster has a commissioning arm and a provider arm.

‘You can have practices having different roles, with a commissioning face and a provider face and many are doing that initially.'

The other way to avoid the issue is by setting up a community enterprise.

‘If you are explicitly putting profits back into the local community, it seems to me you can be a provider as well as a commissioner – and that's a model I would personally advocate.

‘If you go with a limited company you have to split into two.

‘But there's no problem and frankly it's quite preferable if the membership is the same because you're lining yourselves up nicely for integrated provision of care in the same organisation,' he says.

The guidance to quote

Clinical commissioning: our vision for practice-based commissioning, 2009

‘PCTs need to have clear frameworks for procurement of new services (in line with the Principles and Rules for Cooperation and Competition and the PCT Procurement Guide), including arrangements for declaring and documenting interests and protecting against real or perceived conflicts. It is also essential to ensure any service is governed by a clear contractual relationship and that there is clear clinical accountability for the service.

‘A robust system of governance should, however, enable PCTs to meet these requirements whilst drawing strength and power from an enhanced role for clinicians in both commissioning and providing services.'

Emma Wilkinson is a freelance journalist

Untangling the guidance on conflict of interest is often simpler than it first seems Email us for expert advice

Have you got a conflict of interest dilemma?
Practical Commissioning has lined up lawyer Mark Johnson of TPP Law to answer some questions from readers.


Email your questions to smcnulty@cmpmedica.com

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