CCG constitutions – lessons learned
Having reviewed and reported on a number of constitutions for CCGs across the country, we thought we would share with you some of the lessons learned from these reviews.
Who can be members of the CCG
Only providers of primary medical services to a registered list of patients under a GMS, PMS or APMS contract will be eligible to apply for membership of a CCG. Some CCGs have wanted to admit to membership other bodies, such as local authorities or other important stakeholders or partnership organisations. The Act is quite clear that it is only providers of primary medical services holding such contract sthat can become members of a CCG. However, it is always open to a CCG to involve those other organisations within its governance structure.
CCGs have also enquired whether they can admit providers of primary medical services from out of the stated area of membership of their CCG. There is no legal bar on this as they would satisfy the criteria for eligibility set out above. However, most CCGs define the eligibility criteria for membership by reference to the defined area of the CCG and, in doing this, would prohibit the ability to admit providers from out of that area.
Delegation of authority
A CCG may only grant authority to act on its behalf to:
- Any of its members;
- Its Governing Body;
- Its employees; or
- A committee or sub-committee of the Group.
The CCG can also enter into joint arrangements (see 3 below) but it is important to note that a CCG cannot delegate authority to a joint committee and cannot establish a joint committee which in itself has delegated decision making authority.
Accordingly, if a joint committee is being established, a CCG must grant delegated authority to those of its members or employees participating in that joint committee to make decisions on its behalf, with the CCG retaining overall liability for the decision made by those members or employees. It is therefore the individual member or employee who has the delegated authority to make a decision rather than the joint committee itself.
In addition, we have also identified a number of inconsistencies in the Schemes of Reservation and Delegation adopted by CCGs with, for example, the same duty or function delegated to more than one committee. It is important that there is a consistent delegation of authority between the various committees of the CCG.
The main function of the Governing Body is to ensure that the CCG has made appropriate arrangements for ensuring that the CCG exercises its functions effectively, efficiently and economically and that it complies with such generally accepted principles of good governance as are relevant to it. Accordingly, the Governing Body should not delegate these core functions.
A CCG can enter into joint or collaborative arrangements with other Clinical Commissioning Groups or set up joint committees with local authorities in respect of designated functions as defined in an agreement under Section 75 of the 2006 Act. However, these joint arrangements should be set out in section 6.5 of the Constitution (adopting the numbering used in the NHS Commissioning Board’s Model Framework Constitution) and not be listed as a committee of the Group in clause 6.4 or as a committee of the Governing Body in clause 6.6.3.
Governing Body, Audit and Remuneration Committee
It is important to note that the Governing Body and the Audit and Remuneration Committees are statutory requirements and that, in particular, the Governing Body cannot be created as a sub-committee of a Council of Members and the Audit and Remuneration Committees must be formed as committees of the Governing Body and not of any of the other committees of the CCG.
The membership of the Governing Body and Audit and Remuneration Committees are also governed by the NHS (Clinical Commissioning Groups) Regulations 2012. These regulations specify who is excluded from membership and it is important to provide in the Constitution that a member will automatically cease to be a member of the Governing Body or Audit or Remuneration Committee if they cease to be eligible for membership in accordance with the Regulations.
Providing for all committees and joint arrangements in the governance structure
A common error is that a number of committees and joint arrangements are referred to in the Constitution but are not then provided for in Section 6 (decision making: the governing structure). It is important that the Constitution sets out a governance structure that covers all committees and joint arrangements of the CCG. The Constitution does not need to contain the detailed Terms of Reference of each and every sub-committee but there should, at least, be delegation to a suitable committee, such as the Governing Body, to prepare and maintain Terms of Reference for an indentified sub-committee.
Policies and Terms of Reference
Any amendment to the Constitution requires the consent of the NHS Commissioning Board. Accordingly, another common error is including within the Constitution policies and terms of reference which could (and should) be kept out of the Constitution as separate stand alone documents, with the Constitution containing a delegation to an appropriate committee to devise and maintain such policies and terms of reference. In this way, the CCG retains flexibility to amend its policies and terms of reference without the consent of the NHS Commissioning Board.
Expulsion of members
A number of CCGs want to include within their Constitution the ability to expel members on certain grounds or in certain circumstances. As a member organisation, this is reasonable but, as noted above, any amendment to the Constitution (and this would include removing or adding a member to the list of members in clause 3.1 and Appendix B), requires the consent of the NHS Commissioning Board. This is so that the NHS Commissioning Board can satisfy its duty of ensuring that every provider of primary medical services belongs to a CCG.
Accordingly, any expulsion provisions in the Constitution must be conditional upon the NHS Commissioning Board approving such expulsion.
The CCG should remain aware that the Constitution is not a public document until the CCG is authorised by the NHS Commissioning Board. Before that point, it is a private document and, whilst a CCG may be willing to share it freely with its members, patients and the wider public, it is not strictly obliged to disclose it beyond its membership.
Given the inter-relationship between the CCG and member practices and the scope for a challenge against a procurement decision if sensitive information about a service that is being commissioned is shared with the member practices but not with potential bidders in the process, the CCG should think carefully about what confidentiality obligations it puts in place with the wider membership and, in particular, with members of the Governing Body and other committees of the group.
The members of a number of CCGs have entered into inter-practice agreements in relation to the setting up and operation of the CCG. As a result, a number of Constitutions make reference to these inter-practice agreements and include provisions requiring each of the members to abide by them and often require practice representatives to ensure that their practices observe and comply with the terms of the Constitution. These provisions go too far and create a contractual link to the member practices and impose personal liability on the practice representatives. Accordingly, these provisions should be left out of the Constitution.