Health and Social Care Bill

Lord Marks of Henley-on-Thames Excerpts

Wednesday 30th November 2011 Lords Chamber

[Lord Warner]

My Lords, I just wanted to make a couple of observations and ask the Minister a question on this group of amendments. First, this is a not a new area that we are getting into. The same issues arose with GP fundholding and with practice-based commissioning. We have managed, as I recall, to sail through those two areas where we have involved GPs in the commissioning of services where there was potential for conflicts of interest without any great scandals. Has the department looked at the experience on this issue of conflicts of interest with practice-based commissioning and GP fundholding and seen whether there was a major issue? My recollection of all this from the research on GP fundholding was that there was not an issue and it was handled perfectly sensibly.

Secondly, if we actually have bigger clinical commissioning groups—and I promise the Minister I am not going to reopen the debate we have already had, no doubt to much relief in your Lordships’ House—the smaller the risk, I would suggest, of conflicts of interest. There is a different set of considerations if you have got a clinical commissioning group for a population of 18,000, where inevitably there is going to be much greater potential for a conflict of interest, to one in which you are commissioning for 400,000. There is a different order of magnitude and I wonder whether that is an issue that the Government have looked at.

Thirdly, if there is concern about sanctions, the thing which really counts with doctors is the prospect of being reported to their professional bodies. It is the GMC and professional misconduct which is the big issue. We should not invent a system which is based too much on local government. It should be bedded into the professional body and the misconduct issues, because that is likely to be the way that it will have most effect with doctors involved in commissioning.

[Lord Marks of Henley-on-Thames]

My Lords, I rise to speak to Amendments 175E, 176AA to AD, 213C and 220A, all in the names of my noble friend Lady Williams, the noble Lord, Lord Patel and myself, and in the case of 220A in the additional name of my noble friend Lord Clement-Jones. The purposes of these amendments are first to secure on the face of the Bill a thoroughly robust regime to avoid conflicts of interest sullying the commissioning process, and secondly to ensure transparency in the commissioning process to the greatest extent that is commercially possible. Taking the point made by the noble Lord, Lord Warner, a moment ago, that this is not an entirely new area, I suggest that the arrangements for commissioning proposed in this Bill risk raising the threat level from conflicts of interest in the commissioning process from “moderate” to “severe”, if I may use the intelligence services’ scale. That is because of the greater involvement of practitioners in the commissioning process, which is of course to be welcomed for many reasons, and the increased likelihood that many practitioners may also be providers of other healthcare services or have interests in such providers.

Our task is to reduce the threat at least to “substantial”, and then to manage the threat in such a way as to avoid commissioning decisions ever being skewed by the private interests of those making the decisions. Much of what we propose ought to be uncontroversial, and merely represents good practice, but we suggest, and in this I agree with my noble friend Lord Greaves, that it is important that our commitment to best practice is made clear on the face of the Bill. Amendment 220A would impose on any provider of medical services who is also a member of a CCG a duty to declare any financial interest in a commissioning decision—a bare minimum proposal, I suggest. Amendment 213C would impose on the NHS Commissioning Board a duty to refer a member of a CCG to his or her relevant professional body for material breach of the provisions or of the guidelines we propose. I entirely agree with the further point made by the noble Lord, Lord Warner, that this is an appropriate way of dealing with offending by practitioners. It should not be for the board to act as, or to set up, a disciplinary tribunal, but it is sensible and a greater deterrent, I suggest, for the professional bodies to do so.

However, the meat of our proposals is in Amendments 176AA to 176AD. We propose a thoroughly transparent regime as the best and most effective way of protecting commissioning from the insidious effects of conflicts of interest. I say insidious—and this is a point in which I pick up on what was said by the noble Baroness, Lady Finlay—because it is not only when a public decision-maker acts deliberately to favour his private personal interests that conflicts arise and threaten the system. It is also when the decision-maker at least persuades himself that his interests and the public’s interests coincide. It is only public scrutiny of the process that can properly test that.

The provisions in the Bill permitting some public access to the meetings of governing bodies of commissioning groups are, I suggest, over-cautious and too limited. The system should be made more open. The public should not be excluded from governing body meetings during the all-important discussions involving a choice between potential providers. I entirely accept that that would involve a new openness about commercial transactions and decision-making. However, these decisions are about choices between providers at public expense; I question the need for meetings to be held behind closed doors in relation to them.

Secondly, in the case of other decisions where the public are excluded from governing body meetings in the public interest, then a record of decisions made should at least be published, and quickly. That is the subject of Amendment 176A.

Our amendments set out a code for dealing with conflicts of interest in new paragraphs to go into the schedule. There would be a requirement for a register of interests of all CCG members. That register should be kept up to date. It should be kept available for public inspection. Then there would be a provision to exclude from the governing body of any CCG a director of a healthcare organisation or anyone with a significant financial interest in such an organisation if there is a contract in existence between that CCG and that organisation.

Thirdly, there would be a provision to ensure that a member of such a governing body who would be excluded if such a contract came into existence would have to stand down from the governing body while any negotiations for such a contract were in progress.

Finally, our amendments import the admirable guidelines produced by the General Medical Council, entitled Good Medical Practice. Those are the guidelines to which the noble Baroness, Lady Finlay, referred. I am grateful to the GMC for producing a document of such clarity and for welcoming our use of it in these amendments. The emphasis of the guidelines is on honesty and openness; that is what we are trying to achieve in this Bill. I believe it is what the Government are trying to achieve in this Bill. These are probing amendments, intended to give the Government an opportunity to consider how they might import such guidelines into the Bill at Report stage. However, our central point is this: we believe that the present provisions of the Bill do not display the seriousness, the clarity or the robustness that are required to meet the risks posed by the new arrangements. I suggest that the Bill cries out for a code in this area such as the one we have proposed.

[Baroness Finlay of Llandaff]

My Lords, there is an additional area which I think means that the provisions in this Bill have to be different from other previous legislation. We face a huge financial challenge across the whole of healthcare, with budgets squeezed in a way they have not been squeezed before. So the potential for conflict of interest will go up as very difficult decisions are made. One can envisage the situation where somebody on the governing body of a clinical commissioning group will have a relative with a certain condition—and I refer back to the example I used previously, motor neurone disease. Say that person needs end-of-life care, and say that is a clinical commissioning group that has decided that it is not commissioning it in its area. There would be a direct personal conflict of interest, because that person would obviously want that care for their relative, but they would need to stand back. With the financial stringencies, the proposed amendments become even more important. While they are probing amendments, I hope the Minister in responding will recognise the importance of this area and agree to come back to it—hopefully, with a Government amendment—at a later stage.