National Health Service (Clinical Commissioning Groups) Regulations 2012

Baroness Jolly Excerpts

Tuesday 16th October 2012 Lords Chamber

[Baroness Finlay of Llandaff]

The noble Lord, Lord Hunt of Kings Heath, has done us a major service by bringing forward a full debate on these regulations. We have discussed at length the problem of secondary care representation. Indeed, the fact that there will be secondary care representation and nurse representation on clinical commissioning groups is welcome. However, the principle of integration seems to be blown apart by the way in which these regulations are written. The Royal College of General Practitioners and the Royal College of Physicians—I declare an interest as a fellow of both—and the Royal College of Paediatrics and Child Health produced a document entitled Teams without Walls about involving generalists and specialists to ensure a better, more seamless journey for patients.

In an area—and we are trying to have more localism and more local involvement in decision-making—the very clinicians on half of this pathway are now excluded from involvement in the planning and decision-making for those services yet they are the clinicians who have an in-depth knowledge and experience of the health economy, integrated working and, indeed, of the deficits in standards. That is where I wish to focus my remarks for a moment. The Francis inquiry has not yet reported but I understand that the Government have given a commitment to implement the findings when they come out. I do not understand why the Government have not left this matter completely open at the moment. If the Francis inquiry considers that there is not enough integration between secondary and primary care in decision-making, planning of services and so on, then allowing a secondary care clinician from the local area to be on the clinical commissioning group would provide the flexibility that Teams without Walls refers to.

The clinical governance of an area and its problems will be known to the local secondary care services, and they will know it across the board. There has been concern about conflicts of interest, yet a medical director in a trust represents a range of different specialties, and that has not been a problem. Clinicians have learnt how to do it. The Royal College of Physicians has produced guidance. It will produce guidance on a competitive appointment process whereby the best person for the job gets the job, and it has produced a clinical commissioning hub as a support for secondary care in its involvement in clinical commissioning groups. You could say that the basic rule of physics pertains—two negatives make a positive. It is difficult to understand why the conflict of interest that the GPs will experience, where they may be providing part of secondary care services themselves, does not matter in this, and yet it is completely prohibited to have a secondary care person who might understand how that interface between primary care and secondary care will work better at a local level. That person is excluded. It seems to work particularly against rural areas.

The last point I should like to make—apart from reminding the Government that the absolute reverse principle has been in place with the local education and training boards, where local people are involved in the very processes of commissioning the education—is about the people who will come forward. We already know that, to date, there is underrepresentation of secondary care. A clinician who is going to apply to be on a board and leave their clinical service, travel long distances and be involved elsewhere is not going to be the clinician who is completely dedicated to their local NHS service. The clinician who is dedicated to their local service and driving up care for patients is going to be the very person who will be most motivated to work with the clinical commissioning group to improve the services and the seamlessness across the piece. Excluding local clinicians seems unnecessarily to be closing down flexibility.

[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.