It has been just over a year since the Health and Social Care Act 2012 gave responsibility to CCGs for commissioning health care services for their local populations and in this article we look at some of the key governance issues about which we have advised our CCG clients over the past year.
What are CCGs?
CCG governance is complex and unique to CCGs. CCGs are structured differently from other organisations operating within – and outside – the NHS. CCGs are membership organisations but, unlike Foundation Trusts (FTs), their members are not confined to individuals. CCGs’ members are their local GP practices, which may be single-handed GPs, partnerships or companies. Whereas NHS Trusts, FTs, Special Health Authorities and NHS England (and previously Primary Care Trusts (PCTs) and Strategic Health Authorities) all have Boards with responsibility for exercising (or delegating) their functions, CCGs do not. CCGs have Governing Bodies comprising clinicians, lay members and others (as set out in their Constitutions), which may have responsibility for exercising (or delegating) some, all or none of their CCGs’ commissioning functions.
In our experience, the majority of CCGs have delegated their commissioning functions to their Governing Bodies. Some lawyers are taking a restrictive approach to the ability of Governing Bodies to delegate those functions that have been delegated to them by CCGs. In our view, Governing Bodies have wide-ranging powers to delegate both their statutory functions and the functions that have been delegated to them, provided that CCG Constitutions are drafted appropriately.
Some CCGs have delegated their commissioning functions to committees (of the CCGs) and not their Governing Bodies. CCG Committees have different powers of delegation from CCG Governing Bodies, and need to ensure that their delegations are both lawful and in keeping with their powers as set out in their CCGs’ Constitutions.
CCGs do not currently have the power to establish joint committees (as PCTs did) with other CCGs. It has been recognised that this is a gap in the legislation. Working with clients over the past year, we have devised a governance structure that enables CCGs to establish committees (known as “committees-in-common”) that can make decisions on behalf of two or more CCGs. Where CCGs wish to work together to deliver service change across more than one CCG area, it is crucial that they can take joint decisions on matters such as how they will engage with members of the public and local stakeholders and, ultimately, which service change proposal is to be implemented. The committee-in-common structure enables CCGs to make such joint decisions – and has been implemented by a number of CCGs working together to achieve a large-scale service reconfiguration. It is a complex area of governance; all CCGs involved need to work together to implement the structure.
The legislation is to be amended to give CCGs the power to form joint committees. It is important to note that this power will enable two or more CCGs to set up a joint committee, and not their Governing Bodies. Any joint committee that is established using this new power will therefore, only, be able to exercise functions of the CCGs i.e. functions that have not been delegated to the CCGs’ Governing Bodies or to committees or sub-committees of the CCGs. As, in our experience, the majority of CCGs have delegated most of their functions to their Governing Bodies, this new power will not facilitate joint working between CCGs in the way that many CCGs are expecting. CCGs may wish to consider re-visiting their governance structure (as set out in their Constitutions), in order to be able to take advantage of the new power, once it comes into force. Subject to the parliamentary approval process, the power for CCGs to establish joint committees will come into force from 1 October 2014.
Conflicts of Interest
When the government introduced its major reforms and proposed the creation of CCGs, it was with the intention of getting clinicians more directly involved in the commissioning process, in order to improve outcomes. As a result, many of the individuals sitting on CCG Governing Bodies and executive committees are local GPs (and other clinicians). In those roles, the GPs are responsible for commissioning services in the local community. The same GPs may, however, also be responsible for the provision of services in the community. This creates the potential for conflicts of interest to arise, which must be managed appropriately to protect the integrity of the commissioning system.
CCGs need to ensure that they have robust processes in place to manage conflicts of interest so that they do not affect – and are not perceived to affect – decision-making processes. CCGs need to take steps to manage conflicts of interest:
- In order to comply with the law
- To ensure commissioning decisions can withstand scrutiny and challenge
- So that the public and local stakeholders can have confidence in the commissioning system
- To protect their reputations and the reputations of those working for them.
The scope for actual and potential conflicts of interest to arise will significantly increase as CCGs take on responsibility for co-commissioning primary care with NHS England. CCGs need to ensure that:
- They have processes in place to secure that their members, employees, Governing Body members and committee members declare actual and potential conflicts of interest and these are appropriately recorded
- Their Governing Body or an appropriate committee can be quorate for the purposes of making decisions in relation to procurements
- there is an appropriate level of clinical input into decision-making – with arrangements in place to enable individuals with relevant clinical expertise to be co-opted onto the Governing Body or to become members of a committee where required (and permitted by their Constitution)
- They create a record, in relation to each contract for health care services that they enter into, of how they managed any conflict of interest that arose (as required by legislation).
We recommend that CCGs review their Constitutions to ensure that these give them the maximum flexibility to delegate their functions, within their statutory powers. Some CCGs are purporting to exercise their powers in ways that may not be permitted by their Constitutions, leaving their decisions vulnerable to challenge. CCGs should also review their processes for managing conflicts of interest (both in their Constitutions and their conflict of interest policies).
Click here to read our articles on: The Jackson Reforms one year on, the importance of being compliant, hospital chains, persistent litigants, Monitor’s latest procurement guidance, saying sorry for mistakes and the future of the stethoscope.