CCG leaders have been advised to tie themselves to ‘comprehensive’ confidentiality clauses with private companies running commissioning support organisations to prevent commercial details of contracts leaking out.
The advice comes in advice drawn up by the board on implementing service level agreements with commissioning support organisations. These agreements are set to be finalised by the end of this month, in order to have sufficient amount of time to transition and recruit staff before the CCGs go live on 1 April.
But commissioning leaders have warned the agreements must not block transparency with regards to how the CCG is spending public money.
The board said the backbone of the agreement will be a full description of the services to be provided set against a corresponding set of client requirements, as well as identifying the scope of each service, what is included and what is not, to be clear on responsibilities.
The parties should also pre-arrange payment mechanisms,including the payment frequency, terms, penalties for late payment, VAT handling, and so on.
The NHS CB advises that agreements should be limited to 18-months to allow time for CCGs to procure their support but that termination rights should be granted to both parties, subject to a pre-arranged notice period. They should also agree on variations to the contract.
As for disputes, the agreement should set out that the first port of call should be negotiation and compromise with a backup plan should this fail, including agreeingto share costs of a mediator.
The advice says: ‘In the course of conducting business, it is likely that confidential information will be passed between client and provider.
‘Any material marked as commercial in confidence should be treated appropriately for the duration of any agreement, and at the expiry or earlier termination of the agreement either returned to its rightful owner or destroyed.
‘The drafting of the confidentiality clause should be comprehensive given the level of commerciality inherent within the developing market.’
But NAPC chair Dr Charles Alessi said that this requirement must be balanced with the need for the public to have access to information on how their taxes are spent.
He said: ‘There is a balance to be struck. You must protect information regarding commercially sensitive contracts but also there has to be a degree of candour and transparency with regards to spending public money.’
He added: ‘The role of CCGs will be fundamentally different to PCTs and commissioning support is going to be terribly, terribly important.’
The NHS CB said: ‘Whilst local agreements are likely to include a variety of clauses to reflect the different needs of CCGs, this document describes some of the key minimum clauses that the NHS Commissioning Board would expect to see within any standard SLA.’
The SLAs will go live as of 1 April next year when CCGs begin to formally procure commissioning support from CSUs. But since the CSUs do not become separate entities from the NHS until 2016, the contracts are not legally binding in the interim period.