Conflicts of interest – navigating the new requirements
Published 15 September 2016
The statutory duty on CCGs to manage actual and potential conflicts of interest to ensure that they do not (and do not appear to) affect the integrity of the CCG’s decision-making processes reflects the importance of handling actual and potential conflicts of interests robustly and transparently so that CCGs maintain the confidence of stakeholders. This has always been a challenge for CCGs but the involvement of many in primary care commissioning, and more recently the drive towards new care models with GPs playing a central role, creates greater complexity and risk.
CCGs are likely to be taking many more controversial commissioning decisions in light of financial strain and Sustainability and Transformation Plan objectives, and in the face of any challenge it will be critical for CCGs to be able to demonstrate compliance with their duties to manage actual and potential conflicts.
These issues have received increasing attention at national level, resulting in new guidance published by NHS England in June. The guidance is comprehensive and detailed, covering not only traditional areas such as policies but also arrangements for managing conflicts of interests at a practical level. Amongst other things, the guidance recommends that CCGs appoint a lay member as a ‘Conflicts of Interests Guardian’ and it introduces requirements for training. CCGs are also required to undertake an annual audit of their arrangements for managing conflicts of interests.
In addition to the overarching statutory duty, CCGs must not award a contract for health care services where conflicts or potential conflicts of interest affect, or appear to affect, the integrity of the award of that contract (under the NHS (Procurement, Patient Choice and Competition) (No.2) Regulations 2013). Since April 2016, CCGs are also required to take appropriate measures to effectively prevent, identify and remedy conflicts of interest arising in the conduct of procurement procedures under the Public Contracts Regulations 2015. The Public Contracts Regulations 2015 therefore appear to set the bar slightly higher.
We are advising CCGs on the practical steps that they need to take to implement the new guidance, including reviewing relevant policies and procedures. We are also updating procurement policies and processes for CCGs to reflect the requirements of the Public Contracts Regulations 2015. We draw on the substantial experience of our Governance Advisory Practice (GAP) experts (who have held Director and Company Secretary roles in NHS organisations) in advising CCGs in this area, providing an integrated legal and governance approach to compliance with the complex requirements now in play.