The Health and Social Care Act (2012) requires each CCG to have a constitution that sets out how it will discharge its responsibilities, writes Dr Pinto-Duschinsky. This is one of the key pieces of evidence the NHS Commissioning Board uses when assessing a CCG’s application for authorisation. CCGs also need to provide evidence of good engagement with member practices as part of the authorisation process. It is up to each CCG and its member practices to decide how they prepare their constitution and agree on the sign-off arrangements. Conditions might be put on authorisation of CCGs if improvements are needed in the engagement and support of GP practices.
The board has produced a model constitution, which can be tailored to local use, to help CCGs with this key part of their governance arrangements. Every practice within a CCG will be covered by the CCG’s constitution once the CCG is formally established. We are flexible as to how endorsement of the constitution is obtained to best reflect local preferences and circumstances. This can be achieved in a variety of ways, for example by signatures on the constitution document or through letters of support. As detailed in the applicant guide, the authorisation process looks at the engagement of member practices, and the strength of their relationship with the CCG. This is considered in the round using a variety of methods including a comprehensive stakeholder survey and first-hand examples of practices’ involvement in decision-making.
The following advice from the board aims to answer a partner’s questions about whether to sign their local CCG’s constitution.
Is it possible to remain a member practice of the CCG without signing the constitution?
Ultimately, it is going to be a legal requirement for all GP practices in England to be a member of a CCG. It is up to each CCG to choose how best it wishes to demonstrate member practices’ ‘sign-off’ of the constitution. The board will look in the round at any evidence relating to the strength of the relationship between a CCG and its member practices. It will want to assess all the evidence relating to the strength of the relationship between a CCG and its member practices.
Dr Chaand Nagpaul (CN) writes: The is the first time an NHS statutory body will operate as a ‘membership organisation’, and with members signing a ‘constitution’. This is a new organisational proposal without precedent, and in itself it raises some vexing questions.
Ordinarily an individual or organisation can choose to be a ‘member’ of another organisation, and in doing so would sign a document agreeing to the terms of the membership. There is also the provision to cease membership for any reason. Membership of the BMA, RCGP, and NHS confederation are typical examples.
As stated in the board’s response, statutorily practices will be forced to be members of CCGs whether they actually wish to be so or not, and even where they actively disagree with the terms of a CCG’s membership. This does not accord with the ordinary meaning of ‘membership’ of an organisation. Such issues did not apply with PCTs where a practice’s relationship with its PCT was via its contract and not as a ‘membership organisation’.
There is still a lack of clarity of how the board will assess ‘evidence’ of member practice ‘sign-off’.
Presumably there will be several CCG authorisation applications where one or several practices have either not demonstrated any written support, or have actively disagreed with the constitution.
Is it the board’s view that it is acceptable for some practices not to support a CCG constitution? Is the proposal for a ‘majority’ of practices to demonstrate support, or a ‘significant majority’ and if so is there a percentage of practices that need to demonstrate support? It would be helpful to have information on any objective measures of assessment of ‘sign-off’.
What happens to practices that do not agree with the constitution? Are their CCGs authorised while they are left out?
The board is responsible for authorising CCGs and will work closely with each CCG to ensure their plans and structures have the support of their members. The board will want to look at all the evidence relating to the strength of the relationship between a CCG and its member practices. Where conditions are given, relevant support packages would be offered in agreement with the board’s local area teams and regional directors.
CN As with the previous question, is it the intention that all practices should end up supporting the CCG’s plans and structures? Is this achievable given the disparity of GP practices’ views in general?
There is mention of ‘evidence’ of support and engagement – it would be helpful to know what criteria will be used to assess such support, and as mentioned in the previous question, a signature does not in itself equate to active informed support.
There is mention of ‘conditions’ and ‘relevant support packages’ and it would be helpful to have an idea of what these would be. Is it the intention to establish the reasons why some practices have not ‘signed off’ and facilitate the CCG to achieve such support?
Must CCGs show evidence that all member practices have agreed with the constitution in order to be authorised?
The board advises that it is up to each CCG to choose how best it wishes to demonstrate member practice ‘sign-off’ of the constitution. The board will look in the round at any evidence relating to the strength of the relationship between a CCG and its member practices.
CN The GPC has had feedback from many practices that felt rushed and under pressure to sign a constitution due to the tight timescales for authorisation, and being warned that failure to sign it may jeopardise authorisation.
We have reports of practices having signed constitutions without reading them and being fully aware of its contents due to timescale pressures. Hence ‘signing’ a constitution does not necessarily constitute informed ‘support’.
Will the board attempt to assess member support beyond signatures by assessing the views of grassroots GPs and member practices?
Must the CCG have the accord of all partners at a practice, or just the representative partner? What process should a partnership and CCG follow where one partner is not happy for the practice to sign up to the CCG, although the rest of the practice is?
The member practice must decide for itself who will represent it within the CCG. If there is a difference of opinion within a practice, it is up to the partners to manage this internal disagreement, as it would in the day-to-day running of the practice.
CN I would agree with this response. Practices will always face ongoing issues of making choices in which all partners may not agree. Practices have developed their own methods of reaching decisions, from voting to consensual agreement.
What defines a constitution document exactly? For example, is this a contract, an agreement, what are the technical differences, and what is its legal status?
Every CCG must have a constitution. This will be a key document for each CCG that sets out various matters including:
- the arrangements it has made to discharge its functions and those of its governing body
- its key processes for decision-making – including arrangements for ensuring openness and transparency in the decision-making of the CCG and its governing body
- arrangements for managing conflicts of interest.
The board must be satisfied that the constitution complies with the requirements of the NHS Act (2006) as amended by the Health and Social Care Act (2012) and subsequent regulations and is otherwise appropriate.
CN As previously stated, there is no precedent in the NHS for the CCG model as a ‘membership organisation’ bound by a ‘constitution’. The constitution will nevertheless define the governance and operating arrangements of the CCG and will directly impact on GP practices as members. It is therefore vital that practice members are involved in its development, and consent to the content of a constitution.
Can the 360° stakeholder survey be used in lieu of a signed constitution?
The 360° Stakeholder Survey is a complementary piece of evidence that is used to gather and demonstrate practice members’ views alongside any other demonstration of endorsement. It does not replace a CCG’s constitution. It is essential for the success of clinical commissioning that all GP practices are meaningfully involved in the work of their CCG. A signed constitution is one way of demonstrating practice support and endorsement of the constitution, as is having signed letters of support.
CN We support the idea of a 360° stakeholder survey, since grassroots engagement and support will be crucial for the success of the CCG. However, we are unclear of the process involved. Are all practices sent a survey, and what level of response is sought to make an assessment?
It would be helpful to know the criteria to make a judgment of member practice support. Will the results of the 360° survey be made public? And if there were disparities between the response to the 360° survey results and constitution sign-off, how will the board proceed?
Another important group of GPs we feel must be included in the process are sessional GPs, especially those not aligned to a specific practice, and whose views should be legitimately sought. In many areas, these GPs provide loyal service to practices and are as much a part of the local GP community as practice-aligned GPs. Will the board specifically assess evidence of sessional GP support and involvement by CCGs?
We also believe that the LMC is a vitally important stakeholder in representing the perspective of the wider GP community, including sessional GPs, and that LMC feedback should form part of the stakeholder survey.
Who should have drawn the constitution up and who should be responsible for any revisions/amendments?
Members of the CCG should decide how they wish to prepare their constitution, and to determine their own sign-off arrangements, as part of their determination of their decision-making processes. Subsequent revisions or amendments to a CCG’s constitution should be signed off by the board.
CN While in theory constitutions should be developed by member practices, in reality many constitutions have been drawn up by the shadow CCG board with support from the parent PCT or cluster, and presented to member practices to sign off.
In some instances practices have had proper opportunity to feedback and suggest amendments, while in others pressure of time with regards to authorisation have not allowed full member practice involvement in the process. We recommend that the LMC should be consulted in the development of constitutions, given its role as the democratic representative body for local GPs.
Constitutions should specify how they can be amended by members, notwithstanding that any revisions or amendments will require ‘sign-off’ by the NHS CB. The constitution should also contain an appropriate dispute resolution clause.
Are there any statutory checks needed on the document, such as witnesses or lawyers?
It is entirely up to the members of the CCG to decide how they wish to prepare their constitution, and to determine their own sign-off arrangements, as part of their determination of their decision-making processes.
CN Given that the content of constitution will impact on member practices, it would be wise for practices to be reassured that its contents are acceptable and appropriate. The GPC has produced extensive guidance for LMCs and practices on assessing constitutions (web link?). In addition, we recommend practices or LMCs should avail of legal advice, such as from BMA Law, or any other appropriate legal advisers.
What are the implications for an individual, practice and CCG of persistent refusal to sign despite amendments? What should a partner do if objections/requests for revisions are not dealt with to our satisfaction – is there a suggested mediation process in this situation?
The NHS CB will want to look in the round at any evidence relating to the strength of the relationship between a CCG and its member practices. Where the board is not satisfied about this relationship, it could authorise with appropriate conditions. Where conditions are given, relevant support packages would be offered in agreement with NHS CB local area teams and regional directors.
CN Unfortunately this response asks more questions than it answers. As previously stated, will the NHS CB wish to see support from every practice? What level of ‘non-support’ would give rise to ‘conditions’? And will there be support provided if only one or two practices strongly disagree or object to a constitution, yet are forced to be members of the CCG?
When should it be signed by – what is the timeline, does raising an ‘official’ objection to the CCG content ‘stop the clock’?
It is entirely up to the member practices of the CCG to decide how they wish to prepare their constitution, and to determine their own sign-off arrangements. However, we have worked on the premise that individual member practices would need to be engaged in the development of such an important document – especially as all members will be bound by its contents following authorisation. There is no provision to ‘stop the clock’ if a member practice raises any type of objection, either through its 360° response or by actively not endorsing the CCG’s constitution.
CN In reality, practices have been asked to sign constitutions in advance of the CGG’s authorisation visit, to demonstrate member practice support. There has been considerable variation in how CCGs have involved member practices in the development of the CCG constitution, and whether practices have been given adequate time and opportunity to make an ‘informed’ decision.
The GPC has produced extensive guidance for practices on CCG constitutions, including a checklist for practices to refer to before signing a constitution. Click here to go to the BMA website and read it.
What are the implications of any delay in signing?
If a CCG does not have full endorsement for the constitution from all its member practices at the time of application for authorisation, it has several points in the timeline to submit further evidence. A CCG can present information regarding its constitution at the site visit stage, at the ‘considered response’ stage following the circulation of its site visit report, and again following any conditions panel at which it is considered prior to the NHS CB decision on authorisation.
CN This response suggests that where a CCG does not have ‘full endorsement’ of the constitution from ‘all its member practices’, it will need to provide further evidence of support over a timeline. Will this be a condition for any CCG that does not have full member ‘sign-off’? And what would occur if a CCG was unable to secure full endorsement from all its member practices by April 2013?
How long does the constitution last – when will it need to be revised/re-signed?
Each CCG must have a constitution but there is no time limit to how long a constitution can stand.
Dr Sarah Pinto-Duschinsky is the head of authorisation at the NHS Commissioning Board and Dr Chaand Nagpaul is the GPC’s lead negotiator on commissioning and a GP in Stanmore, Middlesex