National Health Service (Clinical Commissioning Groups) Regulations 2012

Baroness Cumberlege Excerpts

Tuesday 16th October 2012 Lords Chamber

[Baroness Jolly]

My Lords, this is a debate about conflicts of interest and getting the right person for the job. During the passage of the Bill, my noble friend Lady Barker led the call for conflicts to be declared where a board member has connections with a provider, where GPs can provide secondary services from their practices and where there are connections with commissioning support organisations. This was deemed right and proper, and was incorporated into the Bill.

It is important that the right people sit on clinical commissioning group boards and there are clear guidelines about competence, as well as protocols about conflicts of interest. This piece of secondary legislation puts restrictions on a clinical commissioning group in the choice of its members, irrespective of their competence, in two areas. One restricts councillors from being on the board and the other restricts the clinicians to those who work for providers from whom the clinical commissioning group does not commission services.

Time restricts me from addressing both issues so my noble friend Lady Williams will address the area of clinicians. In nearly 10 years as a member of an NHS trust board, I have sat with members of all political parties and none, some of whom were councillors. Where we had conflicts, they were declared. In that time, everyone left their party allegiances at the door. They were clear that they were there to look after the interests of the NHS in their patch, and had the skills and competences required for that role. It has been like this all over the country for years. It is worth mentioning that the work of Torbay Care Trust, which has been referred to frequently, depended on both NHS non-executive directors and councillors being on the board and working together.

Clinical commissioning groups want the right person for the role. They advertise, interview and appoint. It might be that the right person is a councillor, or not. This SI restricts their choice. Councillors know the community and, furthermore, particularly in the beginning, could have given useful guidance on the workings of the council because that is an area where GPs have generally not ventured—unless of course they are a councillor and a GP. This legislation has an unintended consequence for both doctors and indeed a nurse appointed as one of the two clinicians. The LGA wrote to the then Secretary of State as soon as the SI was published. The letter was signed by Councillor David Rogers, who is chair of the LGA Community Wellbeing Board and the only councillor member of the NHS Future Forum. He wrote:

“We do not accept the case for barring councillors from the governing body who hold professional roles within the NHS, as the reason for the appointment would be their professional experience within the health service—such as the GP … The Government, if it does not listen, is in danger of creating an unintended consequence of both discouraging experienced health service personnel from getting involved in their clinical commissioning group and from discouraging them from getting involved with their local authority”.

Councillor Rogers adds:

“I know that you are fully aware that all councils have standing orders that address conflicts of interest. We expect all public bodies, including clinical commissioning groups, to have equivalent rules regarding membership of their governing bodies but the proposed statutory instrument is far too wide-reaching and disproportionate. It will not only affect GP councillors serving on the governing bodies of clinical commissioning groups but any health professional group that a clinical commissioning group decides it wants represented on the governing body”.

I also received an email from a councillor GP who had been told that he had to make his mind up. Did he want to sit on the clinical commissioning group or did he want to remain a councillor? This level of restriction was not mentioned during the passage of the Bill. He asks:

“What are the justifications for this action which makes clinical commissioning groups the most politically restricted Public Body within the UK ? Where is the evidence”—

we spent a lot of time during the passage of the Bill trying to ensure that things were evidence-based—

“that this is in the public interest? Will GPs be banned from holding political office as Councillors on the basis that they could influence Health and Well Being Boards?”.

I should like the Minister, in summing up, to reassure the House that this was indeed an unintended consequence, and that when the implementation of the Bill is reviewed in 2014, clinical commissioning group governance will indeed be part of that review. Also, for those councillors who would have wished to become engaged in the commissioning of services, will he indicate how the clinical commissioning group might still involve them, so that their skills and competences are not lost?

[Baroness Cumberlege]

My Lords, I declare an interest, which is in the Register of Lords’ Interests. I want briefly to address two points. The first regards the wording that the noble Lord, Lord Hunt, has tabled for the debate, which concerns the prohibition of,

“a registered nurse or secondary care specialist if employed by a body which provides any relevant service to a person for whom the Clinical Commissioning Group has responsibilities”.

My second point is simply about local authority members being members of clinical commissioning groups.

In the past two months, I have had in-depth discussions with four CCGs in different parts of the country. I will be visiting a fifth tomorrow. The impression that I get, quite understandably, is that they are very variable. Some are only just getting established and hardly have their membership in place, and others are well under way. We expect that. It is a new architecture. CCGs have a lot to do, as the noble Lord, Lord Hunt of Kings Heath, said, and some are quicker than others. We would expect that.

However, in one of the London CCGs, the consultant from a well known and respected London teaching hospital, which is outside the CCG area and its commissioning remit, is clearly playing an important part in advising the CCG—as is the very impressive nurse. Neither has any conflict of interest within the CCG because they are people from outside, but they are using their experience, as the noble Baroness, Lady Finlay, said, to explain clearly the implications of some of the decisions that could be taken in future. I thought that the CCG was getting really good advice and I could see how that was going to inform it in the future.

--- Later in debate ---

[Lord Harris of Haringey]

My Lords, I declare an interest as a vice-president of the Local Government Association and as an adviser to KPMG, which I understand also advises on health matters, although I do not advise it on those matters.

In this debate we are perhaps being asked to suspend our disbelief that the governance arrangements for the clinical commissioning groups make sense. We are being asked to suspend our belief on the question of whether pigs may fly. However, the extraordinary statement from the noble Baroness, Lady Cumberlege, that somehow locally elected councillors are incapable of making decisions which affect the livelihoods of the populations that elect them is disgraceful.

[Baroness Cumberlege]

My Lords, I object to that. I said that they have a role on health and well-being boards, which is where the strategy is set out, and that is where the NHS, local authorities, Healthwatch and other organisations come together.

[Lord Harris of Haringey]

I understand that. My point is that the noble Baroness does not seem to understand that today, all over the country, locally elected councillors are making decisions about closures because they are having to balance the reductions in budgets that this Government are forcing on them and on their local communities. They are making those decisions on behalf of the people whom they represent. Why is it being said that somehow they have a conflict of interest which means that they are incapable of making decisions along with colleagues about health matters?

There are issues of principle here and issues of sheer practicality. The issue of principle concerns conflict of interest. The noble Baroness, Lady Cumberlege, has talked about conflict of interest. Perhaps we will also hear about that from the noble Earl in a minute. However, the biggest conflict of interest will be the fact that the primary care practitioners are key elements of the boards of CCGs’ governing bodies. They are not being excluded; it is just everyone else who is being excluded. Let us be clear about who is being excluded. It is not simply elected members but any employee not just of the local authority in the CCG’s area but of any local authority in the country. Therefore, any person who, under paragraph (4) of Regulation 12, the CCG feels has knowledge about the area and who does not have the misfortune of being an elected councillor but does have the misfortune of being a part-time employee of a neighbouring local authority is exempt.

When the Minister replies, I should like him to explain to us why every single employee of every single local authority in the country is being excluded from participation in CCGs. While he is about it and we are talking about conflicts of interest, we have already heard the point made by my noble friend Lord Hunt of Kings Heath that any person who has been public-spirited enough to decide to become—and frankly it is a fairly meaningless undertaking—a member of a local foundation trust or a local NHS trust is also excluded from membership of a CCG. Again, what is the point of that? It is being said that any person who is public-spirited enough already to have had some engagement with the local NHS is not allowed to sit on the board of the CCG.

This is frankly fatuous. You have ended up with a situation in which you have enshrined one set of conflicts of interest and excluded from the membership of the CCG all sorts of other people who could make a valuable and useful contribution. I am afraid that for the first time in our considerations I agree with 99% of what the noble Baroness, Lady Jolly, said. The 1% with which I disagreed was that we should allow this instrument to go through and review it again in two years’ time. It is so flawed and riddled with poorly thought-out considerations of what would work at local level, and so dismissive of the best judgment of local people to decide who is best to be part of the board, that frankly we should endorse my noble friend’s Motion. I urge the Minister to withdraw the regulations and bring forward revised, more sensible regulations.