Constitutions for Commissioning Consortia

On 4 April 2011, the Department of Health announced the fourth wave of Pathfinder Commissioning Consortia, bringing the total announced to 220.

The Health and Social Care Bill (the “Bill”) told us a lot (though not everything) about how the new commissioning bodies would fit into a dramatically changed institutional landscape of the NHS. On 5 April 2011, the Health Select Committee’s report (the “Report”) on commissioning under the NHS reforms was published. The Report proposes a number of changes to how the new commissioning bodies will operate. In particular, it suggests that commissioning decisions should be taken by a wide range of health professionals, not GPs alone.

(The Committee felt that the name, “GP Consortia” for local commissioning bodies was misleading and instead suggested that such bodies should be called “NHS Commissioning Authorities”. However, for the purposes of this briefing, we shall follow the Bill and use the terms “Consortium” and “Consortia”.)

Differing approaches: the Bill and the Report

The Bill and the Report appear to reflect differing view of how to organise the provision of secondary care.

  • By choosing for GPs to lead the commissioning of secondary care the Bill tends to emphasise (as the Government put it in “Liberating the NHS: Legislative framework and next steps” (December 2010)) “the key role that GP practices already play in coordinating patient care and acting as advocates for patients”. The Government also recognised the gatekeeping role of GPs, saying “GPs also play a critical role in influencing NHS expenditure, both through referral and prescribing decisions and (less directly) through the quality and accessibility of the services they provide for patients and the impact these have on emergency and urgent care provided elsewhere in the system”. The Bill’s intention is therefore that GPs, through Consortia, should use their experience and their position as gatekeepers to buy secondary care services more efficiently and effectively both in terms of cost and patient outcome, albeit with (a) requirements for public involvement (and perhaps consultation), (b) requirements for the NHS Commissioning Board (the “NHS CB”) to encourage Consortia to work closely with local authorities and (c) requirements for the Consortia to liaise with their local Health and Wellbeing Boards in relation to the Consortia’s plans. The suppliers of secondary care would therefore be the other side of this buyer/seller relationship.
  • The Report tends to emphasise the part of the commissioning process which involves a collective and integrated activity between primary care providers (i.e. GPs), secondary care providers, public health and social care professionals, together with representation from local authorities and consultation with the local Healthwatch (performing the role of the patients’ voice). This approach seems to reflect a belief that the GPs’ experience (which the Report acknowledges gives GPs a unique role in the commissioning process) is not broad enough to resolve conflicting objectives – for example, the suggestion is that the public health objective of emphasising prevention, which is at the heart of commissioning, will not be adequately supported by the Bill’s approach of secondary care commissioning being controlled by GPs, but public health being separately promoted by local authorities.Whether one favours a buyer/seller dynamic or a collective involvement of stakeholders is to an extent an ideological and cultural choice and each approach can be readily misrepresented or even caricatured; but it is probable that in practice neither approach would operate in an extreme version.

What do the Bill and the Report tell us about Commissioning Consortia as entities?

The differences of emphasis between the Bill and the Report have led to some alternative recommendations about how the Commissioning Consortia should be organised, though many aspects are the same.

  • The Bill explained that the Consortia will be statutory bodies corporate and so will be separate legal entities. In “Liberating the NHS: Legislative framework and next steps” the Government stated “The purpose of consortia being statutory bodies is to ensure that they have an identity that is separate from that of their member practices…”
  • They will be subject to the Freedom of Information Act, like other public bodies.
  • A proposed Consortium will only formally become a Commissioning Consortium with the approval of the NHS CB and the approval process will include approval of the proposed Consortium’s constitution.
  • The Bill requires that all holders of primary care contracts must belong to a Consortium as a condition for holding one of those contracts. Although the Bill only required that each Consortium should have at least two members who are providers of primary medical services and did not stipulate arrangements for management, the Report proposes greater control, with the aim of giving “a strong local voice in the commissioning system” to “speak authoritatively for local stakeholders”.
  • Consequently, the Report proposes that each Consortium should have a formal board (“Board”) and that, whilst the majority of members of each Board should be GPs, “other places should be preserved to reflect the range of other (clinical and nonclinical) considerations which impact on effective commissioning”. Specifically the Report proposes that, in addition to a majority of GPs, Board membership should include:
  • An independent Chair appointed by the NHS CB;
  • Accountable executives: a Chief Executive and a Finance Director;
  • A professional Social Care representative;
  • An elected member nominated by the local authority;
  • A nurse representative;
  • A secondary care representative; and
  • Directors of Public Health or a public health professional nominated by them.
  • The Consortium must have an “Accountable Officer”, who must be approved by the NHS CB.
  • The Consortium must indicate its area and the NHS CB must be satisfied that that area is appropriate. “Liberating the NHS: Legislative framework and next steps” states “it would not automatically follow that every one of the practices in a consortium has to be physically located in that area, nor that all practices in a consortium have to be adjacent to each other…… However, we do not consider it viable for a consortium to be made up of practices drawn from a multiplicity of disparate places as this would make it impossible for a consortium to deliver its responsibilities.”
  • Each member must appoint a representative to the Consortium and so, in particular, GP partnerships will need to make arrangements for designating their representatives and their GP partnership agreements may need amendment to deal with the arrangements for this.
  • The NHS CB must be satisfied that applicant consortia “have made appropriate arrangements to ensure that the Consortia will be able to discharge its functions”.

The Constitution of a Consortium

The Bill stated that the mandatory contents are:

  • The name of the Consortium;
  • The members of the Consortium. As the Bill says that each partnership providing primary medical services is to be regarded as a single provider, it is probable that the partnership rather than the individual partners will be a member of the Consortium;
  • The area of the Consortium;
  • The arrangements made by the Consortium for discharging its functions, including in relation to determining the pay and benefits and other terms and conditions of the Consortium’s employees;
  • The procedure to be followed by the Consortium in making decisions (see comments below);
  • Provision for dealing with conflicts of interests of members or employees of the Consortium (see comments below).

In particular, the arrangements for discharging functions and for making decisions “must ensure that there is effective participation by each member of the Consortium in the exercise of the Consortium’s functions”. This is presumably to avoid control of the Consortium being taken over by a cabal, rather than to compel all members to take a constant, full and active part in the processes, which would be inefficient: “Liberating the NHS: Legislative framework and next steps” states “It may be that only a minority of clinicians play a handson, executive role within the consortium”.

The Bill states that the arrangements for discharge of functions:

  • may allow the appointment of committees and subcommittees, and that the members of those Corporate Briefing May 2011 committees and subcommittees need not be employees or members of the Consortium; and
  • may allow functions to be delegated to members, employees, committees or subcommittees of the Consortium.

Delegation and committee arrangements are common in current NHS bodies.

In addition to the mandatory requirements listed above, the Bill allows the constitution to deal with other matters.

What nonmandatory terms might a Constitution contain?

There are certain important matters that any organisation, whether it is a village council, a football club or the United Nations, needs to address. Some of them are covered by the mandatory requirements listed above. Others are driven by practicality. These include:

  • What officers will there be, how will they be appointed or elected and for how long, and how can they be removed early? Think about what officers you really need and avoid unnecessary roles (if you think you want a “vice chair”, you still don’t need a “deputy vice chair” as well).
  • Which officers will be ‘executive’ (i.e. employees or other workers providing services to the Consortium) and which will be ‘nonexecutive’?
  • Will officers need to be chosen only from members of the Consortium?
  • What will be the liability of the officers? It is common in organisations for the officers to have an indemnity from their organisation and for the organisation to take out insurance for officers’ liability but there is no specific mention in the Bill or the Report of whether Consortia will have power to indemnify or insure. This will be of particular importance for the “Accountable Officer” who (according to the Bill) will have personal responsibility and accountability for the Consortium complying with various obligations, including the obligation not to let its expenditure exceed the money allotted to or received by it. It remains to be seen whether the job of “Accountable Officer” will be viewed as unattractive in the light of these responsibilities.
  • Will there be any liability for the members to contribute to the assets of the Consortium and, probably most importantly, will there be any responsibility for the members to contribute to the assets of the Consortium where it has a financial shortfall? There is nothing in the Bill or the Report to suggest that they should contribute in the absence of wrongdoing. If, as we assume, members will not want to contribute to a shortfall, it should be stated explicitly in the Constitution that there is no liability to do so.
  • How will any discretionary performance payments made by the NHS CB to the Consortium for good performance be allocated to members? Will it be pro rata to member list size? If so, how often will list size changes be recognised? Will there be any restrictions on what the members may use performance payments for? Constitution writers should be wary of imposing rules that the Consortium will be reluctant to enforce in practice.

Decision making and voting rights

The issues to consider in drawing up a Consortium’s decisionmaking procedures will include the following:

  • How will the Consortium’s powers be allocated between the members and the Board? Think of the difference between powers of ministers and those of the House of Commons.
  • Will all Board members have a vote on decisions of the Board where a collective approach does not result in unanimity? If they do all have a vote and the Government adopts the Report’s proposal that GPs should be only a majority of the Board (which we assume means a bare majority of just over 50%), any differing views on the Board (particularly any amongst the GPs on the Board) will substantially dilute the “GP led” nature of a Consortium.
  • How will voting rights of the Consortium members be allocated?
  • ‘One member one vote’ is unlikely to be appropriate because it will not reflect the different sizes of member practices and their respective stakes in the commissioning process (think of the US Senate: two votes per state whatever the size of state).
  • Weighting according to list sizes appears more logical, but the Constitution should address how often the weighting should vary to reflect changes in list sizes and whether there are any other factors that should affect weighting. Moreover, straight proportionality in line with relative list sizes might be considered to hand excessive power to a few large practices in an area and undermine a sense of community which may well be important for the success of a Consortium.
  • Should votes be cast only at meetings or will there be a postal or electronic voting procedure? What majorities should be required to approve decisions – for example, should certain decisions (e.g. a decision to merge the Consortium with another, or to change the Constitution) require a higher majority (75% is common in organisations)?
  • The Report suggests that Boards should have a duty to meet in public and that their papers should be made available to the public.
  • What prior notice must be given for Board meetings and member meetings and what should be the quorum requirement for each kind of meeting?
  • What committees of the Board may be appointed and what could their powers be? It is common for organisations to delegate review of, and even to delegate decisionmaking on, particular issues e. g. large companies have remuneration committees to determine executive officers’ pay. Performance review and management of conflicts of interest are matters which might be delegated to committees.

Managing potential Conflicts of Interest

There is potential for conflicts of interest to arise in many ways, for example where there is the possibility of medical services commissioned by a Consortium being awarded to one of the Consortium’s members.

Given the likelihood of public attention focusing on the possibility of conflicts of interest, the conflicts management procedures will be important. The procedures should cover not only actual conflicts of interest but also potential conflicts of interest and the appearance of conflict of interest.

In “Liberating the NHS: Legislative framework and next steps” the Government stated “We would not want to prescribe the exact approach that Consortia should take in managing conflicts of interest, but we will look to Monitor and the shadow NHS CB to draw on these and other suggestions in drawing up proposed rules and guidance on how to ensure commissioning decisions are fair.”

By contrast, the Report proposes that the procedures in place for dealing with conflicts of interest of Board members should comply with the rules set out by the Committee on Standards in Public Life, including that:

  • private interests of Board members must be declared on a public record;
  • no Board member can be present when decisions are being made which will affect their private interests; and
  • all decisions of the Board should be made available to the public.

© RadcliffesLeBrasseur

If you would like advice on any of the issues raised above, please contact us.

We offer free 30 minute initial consultation.

Philip Maddock: philip.maddock@rlb-law.com tel: + 44 (0)207 227 7381
Peter Coats: peter.coats@rlb-law.com tel: + 44 (0)207 227 7441


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.