There has been much debate – both within and outside parliament – about management of conflicts within CCGs. The Health and Social Care Act not only requires that CCGs have arrangements for managing conflicts, but also that CCGs maintain registers of interests.
Who will need to be included on the registers?
The Act requires each CCG to maintain one or more registers of the interests of:
- members of the CCG,
- members of its governing body,
- members of committees and sub-committees of the CCG and its governing body, and
- its employees.
What interests need to be disclosed?
The requirements within the Act are quite broad, but the NHS Commissioning Board’s document “Managing conflicts of interests” provides useful guidance.
The type of interests that this guidance suggests would need to be disclosed include: roles within member practices; directorships (whether executive or non-exec); ownerships (part/whole) of organisations likely (or possibly seeking) to do business with the CCG, shareholdings (>5%) of companies in the field of health and social care; positions of authority in an organisation in the field of health and social care; connections with organisations contracting for NHS services; receipt of research funding/grants; and any other role or relationship which the public could perceive would impair or otherwise influence the individual’s judgement or actions.
It is worth noting that the Act requires declarations of potential, as well as actual, conflicts. The guidance stresses the importance of perception and how, if there is doubt, it is better to assume a conflict exists. Interests should be disclosed on appointment, when there are changes in role/circumstances and, of course, in meetings. The registers should also be reviewed periodically (at least annually, possibly quarterly). Declarations must be made as soon as practicable and, in any event, within 28 days.
When and where to publish the registers
The Act requires that the registers either be published or made available on request. CCGs will therefore need to have their registers ready for inspection/publication from the date they are established (and it seems likely that some/all of those registers will need to exist in advance of establishment).
At present, PCTs tend to make their registers of interests available in a variety of ways – e.g. on line, at public board meetings and/or as part of annual reports. CCGs will need to carefully consider whether to make their registers available on-line. Doing so could reduce administration (in handling requests), and help to demonstrate transparency, but some of those disclosing interests may be reluctant for their interests to be so easily and widely available.
How to compile the registers
The categories of persons whose interests need to be captured are very wide (wider than applies to PCTs now) and, as CCGs will be seeking written declarations of interests, capturing that information (and ensuring it is kept up-to-date) will be an onerous task. Declarations of conflicts will, of course, also need to be made as and when conflicts arise in relation to CCG decision making.
Given the public scrutiny of these registers, anyone disclosing any interests or conflicts will also want to check that the registers accurately reflect their disclosures.
Why compile the registers?
Registers of interests are already used across the NHS, and in the private sector (particularly for plcs). The model standing orders for PCTs require members of the board and PEC to declare any interests that are relevant and material (and for all declarations to be included in a publicly available register). There are similar provisions within the model standing orders for NHS Trusts. Foundation trusts are also required to maintain publicly available registers of interests for directors and governors (and the Act strengthens the disclosure requirements on FT directors).
CCGs will, of course, need to compile registers because they are under a statutory obligation to do so, but the registers will also help to demonstrate probity and transparency, and build public confidence in CCG decisions.
The registers will also form part of wider arrangements for managing conflicts of interest within CCGs. CCGs, and those that need to disclose interests, must be proactive. It will be preferable for the CCG to be aware of a conflict (and properly manage it) than to take a decision, subsequently discover a conflict, and then need to deal with the adverse PR and other consequences that may follow.
Jonathan Hayden is a lawyer at Browne Jacobson LLP.