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CCG gagging clauses have no place in the post-Francis NHS

Authors of DH document following the publication of Francis report wrote that ‘a spirit of candour will be critical to ensuring that problems are identified quickly and dealt with promptly. But it has been self evident, long before the Francis Report, that all health care professionals have a duty to voice appropriate concerns where they believe care for patients falls below acceptable standards. This obligation of course even predates the Bristol Heart Inquiry in the 1990s which reported a lack of leadership, staff shortages and a surgical unit ‘simply not up to the task’ following the courageous actions taken by some to expose the shortcomings. The duty of candour is not new.

Yet even in recent times there have been clauses in NHS contracts which have threatened employees with sanctions if they identify and publicise deficiencies within NHS services.

We have heard recently reports that some CCGs have included clauses preventing GP members from speaking about the work of the CCG without prior approval from the CCG Board (‘GP duty of candour undermined by inappropriate gagging clauses and CGG constitutions’, Pulse, 5 April).

It is clear that GPs who are members of a CCG board, or who simply are members of CCG by virtue of current contractual arrangements, have an over-riding obligation to patients which is more important than any loyalty to their commissioning organisation. Such relationships must be enshrined in CCG constitutions to ensure ultimately that there can be confidence in these new organisations.

There is, of course, a distinction to be drawn between CCG board members who may be held accountable to procedures defined by the CCG, which describe corporate responsibilities and expectations of confidentiality when discussing developmental board strategy, from circumstances where there becomes a clear need to inform CCG management, and potentially a broader spectrum of interested parties, where there are issues of patient safety or standards of care which might be cause for concern.

It is may be appropriate for CCG processes to formally reflect expectations around confidentiality and in relation to public affairs strategies for board members, as long as they are consistent with patient safety, but any such obligation on individual practice members would seem disproportionate and therefore inappropriate.

Compulsory membership

Recently the General Practitioners’ Committee of the BMA (GPC) expressed concerns that compulsory practice membership of CCGs risks placing GP partners in a position on untenable conflict between their professional obligations to patients and the statutory obligations of their practices as CCG members.

It is in this light that GPs must not only resist pressures which may potentially interfere with their ability to place the patient as their first concern, but also to speak out where standards of care are a concern. First and foremost GPs have obligations to patients and the GMC above any obligation to the CCG.

Where the CCG has made a transparent decision, perhaps with involvement of patients and the Local Authority, to prioritise or ration care, then any individual GP (as long as they are clear that they are making a personal statement) should feel free to challenge or criticise in public a decision made by their CCG. If there is any suggestion that CCG policies are placing patients at risk, then of course GPs have an overwhelming individual responsibility to speak out to describe such situations.

It is therefore extremely important that practices scrutinise any agreement that they are asked to sign by the CCG. If they are in any doubt with regards to being placed in positions which may be appropriate for professional reasons and as patients advocates, then the LMC needs to be informed and signing such an agreement should be resisted.

We have already seen LMCs in discussion with CCGs where clauses which appear to bind practices and GPs to supporting CCG policy have been removed. Practices, LMCs and CCGs need to be continuously vigilant to ensure that the inherent tension between GPs as commissioners and GPs obliged to be members of CCGs, are dealt with in a way which places patient and professional obligations in a position of absolute primacy. 

Where a GP has acted with due diligence to discharge their duties first and foremost as a doctor, perhaps with the support and guidance of their LMC, there should be no cause for concern.

Dr Simon Poole is a GP in Cambridge and a member of the GPC’s commissioning and service development subcommittee.