UK: GPs And Conflicts Of Interest

Last Updated: 29 April 2013
Article by David Reissner

The NHS re-organisation and the responsibilities given to GP-dominated Clinical Commissioning Groups (CCGs) have thrown a spotlight onto the commercial interests of GPs and have attracted comment from the national press about how those commercial interests can be reconciled with the role of CCGs.

Under the NHS reforms, CCGs now have responsibility for commissioning healthcare services to meet the reasonable needs of the persons for whom they are responsible. Each CCG must have a governing body which has put in place governance arrangements, including publicly accessible registers to ensure conflicts and potential conflicts of interest are declared, and that conflicts are managed in such a way to ensure that they do not affect the integrity of the CCG's decision making processes. Research1 indicates that 426 (36%) of the 1179 GPs in executive positions on CCGs have a financial interest in a for-profit provider outside their own general practice. These interests range from senior directorships in local businesses set up to provide services such as diagnostics, minor surgery, out of hours services and pharmacies, as well as shareholdings in large private sector health companies that provide care in conjunction with local doctors. The Sunday Times2 has sensationalised this under the headline "GPs' private firms grab NHS cash", referring to examples such as a CCG chairman curbing his own involvement in a company that has been commissioned to help obese patients, while his wife remains a shareholder.

The Department of Health has introduced Regulations to control the potential for problems. The National Health Service (Procurement, Patient Choice and Competition) Regulations 2013 impose legal duties on the NHS Commissioning Board (which is to be known as NHS England) and on CCGs. The Regulations say NHS England and CCGs:

  • must act with a view to securing the needs of people who use the NHS, improving the quality of services and improving efficiency in the provision of services
  • must act in a transparent and proportionate way and treat providers equally and in a non-discriminatory way, including by not treating a provider more favourably than any other providers, in particular on the basis of ownership
  • must not award a contract for health care services where conflicts or potential conflicts of interest arise.

The task of policing these Regulations will fall to Monitor, whose role until now has been limited to supervising a modest number of NHS Foundation Trusts. Monitor has published guidance on how it intends to enforce the Procurement Regulations. Monitor says offenders may be told to take remedial steps or to pay a financial penalty.

Alternatively, Monitor may accept undertakings to ensure that breaches do not continue or recur. Monitor will look at the seriousness of breaches, whether there is a need to deter similar breaches, and the proportionality of any remedy. If Monitor does decide to impose a financial penalty, this can be up to 10% of a provider's turnover.

The extensive nature of GPs' business interests outside of general practice means that Monitor may be busy reviewing commissioning decisions. However, enforcement may not be the responsibility of Monitor alone. In cases where a GP's fitness to practise is called into question, the General Medical Council will become involved. The GMC has published a new edition of Good Medical Practice, and has given specific guidance on financial and commercial arrangements and conflicts of interest. The guidance will come into effect on 22 April 2013.

The new edition of Good medical practice says doctors:

  • Must be honest in financial and commercial dealings
  • Must not allow any interests to affect they way they prescribe, treats, refer or commission services for patients
  • Must be open about conflicts of interest, declaring them formally
  • Should be prepared to exclude themselves from decision making.

The GMC's guidance says that trust between doctors and patients is essential to maintaining effective relationships, and that trust may be damaged if a doctor's interests affect, or are seen to affect, professional judgement. There may be cases where conflicts of interest are not avoidable. Examples might include cases where a GP is a member of a CCG and the GP or GP's spouse is a shareholder in a company that is tendering to provide services. The GMC guidance says that whether a particular conflict creates a serious concern will depend on the circumstances and what steps have been taken to mitigate the risks, for example, by following established procedures for declaring and managing a conflict. Doctors are advised by the GMC to:

  • use their professional judgement to identify when conflicts of interest arise - and when in doubt, to assume there is a conflict
  • avoid conflicts of interest wherever possible
  • declare any conflict formally and as early as possible
  • get advice about the implications of any potential conflict of interest
  • make sure that the conflict does not affect decisions about patient care

The GMC gives specific guidance in relation to commissioning services in the NHS.

Doctors who are involved in commissioning services must:

  • satisfy themselves that decisions are fair, transparent and legal
  • comply with guidance and codes of practice applicable to commissioning
  • formally declare any financial interest not only held by the doctor, but by someone close to the doctor, or which a doctor's employer has in a provider company.

Doctors are also advised by the GMC to manage any conflict of interest by excluding themselves from the decision making process and any subsequent monitoring arrangements.

Like motherhood and apple pie, no one could complain about the objectives of the Procurement Regulations, but it remains to be seen whether Monitor will regulate effectively. Its enforcement guidance gives the impression that it will manage its limited resources by taking action only in cases it considers serious, or in cases where a widespread type of abuse requires deterrence.

In spite of the GMC's good intentions, it may not regard all breaches of Good medical practice or of its guidance as being within its remit, because disciplinary action will normally only be taken when a complaint calls into question a doctor's fitness to practise. Probably only the most blatant cases, perhaps involving deception, concealed financial gain or very large sums of money would to cause the GMC take action, and most complaints may therefore be screened out.

What is increasingly apparent is that GPs actively involved in CCGs generally have such extensive interests in private health provision that conflicts of interest cannot be avoided, and the best the public can hope for is that conflicts will be managed. Taxpayers and patients may not be reassured just because doctors declare their interests and do not take part in decision making. After all, this limited transparency will not enable the public to know what lobbying has gone on behind the scenes by influential CCG members. At the start of a new era, it is vital to the success of the reformed NHS that the public has confidence in the system. It is not yet clear how effectively taxpayers and patients will be protected by the arrangements put in place to enforce requirements of transparency, and whether it will be left to the media to expose what the public will regard as flaws in the system of financial governance.

Footnotes

1 BMJ 3013; 346:f1569

2. 31 March 2013

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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