Health and Social Care Bill

Memorandum submitted by Susan Ackroyd and Tess Harris (HS 77)

SUMMARY

We submit that the Bill needs to be strengthened by clarification of terminology and that thorough legislation is necessary to provide an integrated GP consortia-based framework. Legal protection of patients and GP is required. Consortia should involve specialist commissioning planners, who may be GPs, but who will take responsibility for commissioning. The Commissioning Board should approve providers and commissioning should be a separate subsequent step.

INTRODUCTION

1 We, as individuals, offer our views because there is now an opportunity for fully considering what is needed to implement the proposed NHS changes. Pitfalls should be avoided by planning ahead in detail to avoid problems and recriminations later but so far little detail has been made available to the public. We are concerned that the consequences of proceeding without full planning would negate the potential benefits of the concepts of GP involvement in commissioning and of patient involvement. In return for patients being more proactive, they should have positive safeguards.

2 We believe that previous attempts to improve the NHS have suffered because they have involved too little communication between the different levels of the structure and the remote anonymity of the people within the PCTs, going through all the levels from the patient to the Department of Health. However, it cannot simply be solved by GP involvement alone and other important steps need to be taken as well. The NHS seems to have become loose and unwieldy and in fact we feel it should be tightened up rather than cast adrift.

3 There are two main strands to this: the law and the system which is set up according to the law. Also the consortia should be regulated by a binding central code of practice. We call for safeguards to be introduced for patients and GPs to ensure that unforeseen scenarios are avoided. We ask that imprecise terms such as "any willing provider" in the Health Bill are defined and that statutory Rules are brought in to govern the changes plus a central code for all consortia so that they are subject to a set of core principles. We believe that localisation should not mean that central government does not oversee what happens locally and that the system should be set up to make this evident to the public.

4 We firstly refer to an article "Safe and sound" from lawyers Browne Jacobson LLP (ANNEX 1) see http://www.brownejacobson.com/resources/legal_updates/healthcare_update_-_issue_21/safe_and_sound.aspx . This outlines potential legal risks arising from the draft Health Bill. Such risks could destabilise the new NHS quite quickly and so we urge that steps to reduce the risks are introduced by examining the relevant issues and finding solutions urgently.

In particular, we suggest:

STRUCTURE OF COMMISSIONING FRAMEWORK SHOULD HAVE HIERARCHY AND NETWORK

5 It is completely clear to us that, to ensure a joined up professional framework, there should be substantive forethought. We believe that a complete hierarchical structure, controlled by the Commissioning Board, of which little has been said, which must address all functions of the entities of the structure, including planning and performance as well as financial management, is necessary. This must be created and put into practice before the new NHS can be said to be fully up and running, so that the different entities know what their obligations are and from the outset produce the best possible communication and coordination.

6 It should include networks for communication between all related entities in the NHS. Obligatory standards should be set for the operation of all entities so each entity, whether for example a commissioner, provider or council, should be subject to performance standards and regular assessment by an official body, the Secretary of State for Health being ultimately responsible. Each entity should be obliged to meet best practice. Each entity should be regularly inspected by an officially responsible inspector as regards its performance and the inspector should report upwardly to the appropriate body. Local accountability should also be used an as a check. GPs, hospital clinicians and patients should be involved at every level. Each and every entity should involve an official responsible for best practice, so that a network of such persons exists, which will produce feedback.

7 We are concerned that GP consortia will need to include specialists from other fields when it comes to running hospitals and little has been said publicly about this. GPs are generalists and it is the most newly qualified who will know most about hospitals currently since they will have worked in them. We believe it is essential that hospital clinicians are also statutorily required to be included in the consortia.

COMMISSIONERS

8 We now refer to the very recent report by Health Ombudsman Ann Abraham entitled "Poor treatment of older people in the NHS is an attitude problem"

http://www.ombudsman.org.uk/improving-public-service/reports-and-consultations/reports/health/home

and also the very recent report from Patient Opinion entitled "In their words: what patients think about our NHS" (ANNEX 2)

http://www.patientopinion.org.uk/info/report . As everyone will acknowledge these documents are evidence that there are serious defects at present and that much drastic improvement is required. But such improvement must be planned not merely wished for. The Health Ombudsman and Patient Opinion have an important function after the event but they do not obviate the need for suitable people to hold responsibility. There could be identifiable professional commissioner planners, (whether they are GPs or other NHS expert, whose role should include bringing the required increase in standards into effect. It is not enough to have a Health Ombudsman if those that are responsible for the failings she has identified are not brought to book. The buck has to be traceable for decisions and the line of authority trackable back to wherever it stops. Thus, the legislation should be drafted to set up the system in advance with specified roles and obligations for commissioning bodies and those who work in them. Consideration should be given as to creating a new profession of Chartered Commissioners.

APPROVAL OF PROVIDERS

9 There should be approval of providers as being potentially suitable as a preliminary and essential stage. This should be done by the Commissioning Board to filter out unsuitable providers. It should be separate from commissioning itself. Thus, providers with suitable codes of ethics and additionally conforming to other principles and requirements can be approved as a protective measure.

10 THE TERM "ANY WILLING PROVIDER" NEEDS TO BE MORE TIGHTLY DEFINED IN THE BILL. Willing providers should be approved before the act of commissioning and the law should say so; this is crucial where the provider is itself answerable to others besides the NHS i.e. where there may be divided loyalties e.g. to private owners/ shareholders. There should be an initial presumption of using NHS providers but ability to go to a private provider if they are better, not merely cheaper.

INTERNAL AND EXTERNAL CHECKING MECHANISMS

11 There should be an internal mechanism within the NHS for continuous assessment and for redress of poor or questionable performance of entities and of those who are responsible for the carrying out the functions of the different levels of the system. There should be an external mechanism for the public to question the performance of a service provider or GP consortium to avoid first having to go to court. Both mechanisms should have a specified form and the proceedings of both should be reported to the public. The finances of consortia and providers should be open to public inspection.

NO DECISIONS OTHER THAN ACCORDING TO PATIENT NEED

12 At the frontline GPs should be unfettered in their clinical role. It should be positively stipulated in law that they should not take decisions as to WHAT is needed, especially as to treatment and medicine but also other healthcare and social care, other than according to patient need. Also the commissioning GPs should use their frontline knowledge and skill to commission without pressure of day-to-day patient contact so that commissioning is informed by their frontline knowledge but not biased by it.

13 Dr Roy Macgregor, a London GP interviewed in the London Review, points out a number of potential problems of the proposed NHS changes (ANNEX 3)

http://www.lrb.co.uk/v33/n05/andrew-ohagan/diary?utm_source=newsletter&utm_medium=email&utm_campaign=3305 .

14 He says "And if someone comes to see me, in the new world, and they need an endoscopy to see if they’ve got a gastric ulcer or cancer, instead of meeting that patient’s needs immediately, I’ll be thinking, hold on, in this practice we’ve sent 22 people this month for endoscopies, and my consortium is telling me that last month we had too many endoscopies, so I will think twice. I will think twice about giving this man what he needs and that will affect my clinical care. If I fail to send him for an endoscopy and that man gets cancer, I will have been guilty of giving that man bad care.’

15 Steps must be provided in the legislation to taken to stop that happening.

CONFLICTS OF INTEREST

16 GMC Guidance exists for GPs but we believe there should be provisions in the new law to stipulate protection of patients and GPs and other consortia members. Guidance includes http://www.gmc-uk.org/guidance/news_consultation/ethical_update.asp as below. Presumably this will be updated to take the changes into account but there should possibly be criminal sanctions against improper conduct, certainly if financial.

17 Furthermore, it will be difficult to be certain that GPs on the frontline and GPs in consortia are not influenced by business involvement if that exists but safeguards should be introduced to protect GPs and above all patients, likewise anyone else involved with patients.

18 From the GMC Guidance

"In our core guidance for doctors, Good Medical Practice  we advise that:

1. 72. You must be honest and open in any financial arrangements with patients. In particular:

a. You must inform patients about your fees and charges, wherever possible before asking for their consent to treatment.

b. You must not exploit patients' vulnerability or lack of medical knowledge when making charges for treatment or services.

c. You must not encourage patients to give, lend or bequeath money or gifts that will directly or indirectly benefit you.

d. You must not put pressure on patients or their families to make donations to other people or organisations.

e. You must not put pressure on patients to accept private treatment.

f. If you charge fees, you must tell patients if any part of the fee goes to another healthcare professional

73. You must be honest in financial and commercial dealings with employers, insurers and other organisations or individuals. In particular:

a. Before taking part in discussions about buying or selling goods or services, you must declare any relevant financial or commercial interest that you or your family might have in the transaction.

b. If you manage finances, you must make sure the funds are used for the purpose for which they were intended and are kept in a separate account from your personal finances.

74. You must act in your patients' best interests when making referrals and when providing or arranging treatment or care. You must not ask for or accept any inducement, gift or hospitality which may affect or be seen to affect the way you prescribe for, treat, or refer patients. You must not offer such inducements to colleagues. 1

75. If you have financial or commercial interests in organisations providing healthcare or in pharmaceutical or other biomedical companies, these interests must not affect the way you prescribe for, treat or refer patients. 2

76. If you have a financial or commercial interest in an organisation to which you plan to refer a patient for treatment or investigation, you must tell the patient about your interest. When treating NHS patients you must also tell the healthcare purchaser.

2. Good Medical Practice makes it clear that trust between you and your patients is essential to successful professional relationships. Trust may be damaged by situations in which your financial or other personal interests affect, or are seen to affect, your professional judgement. Such conflicts of interest may arise in a variety of circumstances.

3. The guidance that follows identifies some such areas additional to those covered in Good Medical Practice where conflicts of interest may arise, but it is not intended to be exhaustive. You should always review new arrangements and use your professional judgement to determine if there is a conflict of interest and how best to address it. If you are not sure what to do, contact your defence body, a professional organisation or the GMC Standards and Ethics team for advice.

4. Some doctors or members of their immediate family own or have financial interests in care homes, nursing homes or other institutions providing care or treatment. Where this is the case, you should avoid conflicts of interest that may arise, or where this is not possible, ensure that such conflicts do not adversely affect your clinical judgement. You may wish to note on the patient's record when an unavoidable conflicts of interest arises.

5. If you have a financial interest in an institution and are working under an NHS or employers' policy, you should satisfy yourself, or seek assurances from your employing or contracting body, that systems are in place to ensure transparency and to avoid, or minimise the effects of, conflicts of interest. You must follow the procedures governing the schemes.

6. If you have a financial or commercial interest in a business case being considered by your Primary Care Trust under Practice Based Commissioning 3 arrangements, you should declare your interest and exclude yourself from related decisions in accordance with the Department of Health and your PCT’s guidance

7. If you work outside a formal scheme run by an employing or contracting body you should avoid conflicts of interest, where possible. For example, if you are a general practitioner with financial interests in a residential or nursing home, you should not usually provide primary care services to patients in that home. Exceptions may arise, for example, if a patient asks you to continue acting as their general practitioner, or there is no alternative. If you accept a patient in these circumstances you must be prepared to justify your decision.

8. In all cases you must make sure that your patients and anyone funding their treatment is made aware of your financial interest."

And "Recommending services outside healthcare

14. Accepting or offering fees for referring patients to particular services is likely to undermine patients' trust that the referral has been made solely on the basis of what is best for them. It would be an abuse of that trust to put pressure on patients to use a specific product or service which will be to your financial advantage.

15. The same principles apply if you are offered fees for recommending that your patients access services provided by firms or organisations outside healthcare, including insurance companies, solicitors and others. These schemes often involve making payment according to the number of customers referred.

16. Generally doctors will not have professional expertise in these areas on which to base their recommendation of a particular firm, and their chief interest in such schemes is a financial one. For these reasons you should not accept fees for referring patients to, or recommending patients to use the services of, particular organisations, companies or individuals, whether or not the services are health-related."

SEPARATION OF FRONTLINE GPS FROM COMMISSIONING GPS

19 The need for a legislated separation is unequivocal when considering the obligations and responsibilities of GPs in caring for patients and ensuring the need to protect patients is likewise unequivocal. Such separation is likely to be necessary in our view from a liability and indemnity point of view. The term "patient choice" is should be more correctly referred to as "choice of provider".

20 GMC guidance specifies in detail what is expected of GPs but certain provisions give GPs a degree of power over the patient in that they do not have to provide treatment requested by the patient if they consider it not to be of overall benefit to the patient. For instance, see
http://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_partnership.as , the GMC Guidance on good practice/list of ethical guidance/consent guidance/Part 1: Principle/Partnership, which says

"5. If patients have capacity to make decisions for themselves, a basic model applies:

a. The doctor and patient make an assessment of the patient's condition, taking into account the patient's medical history, views, experience and knowledge.

b. The doctor uses specialist knowledge and experience and clinical judgement, and the patient's views and understanding of their condition, to identify which investigations or treatments are likely to result in overall benefit for the patient. The doctor explains the options to the patient, setting out the potential benefits, risks, burdens and side effects of each option, including the option to have no treatment. The doctor may recommend a particular option which they believe to be best for the patient, but they must not put pressure on the patient to accept their advice.

c. The patient weighs up the potential benefits, risks and burdens of the various options as well as any non-clinical issues that are relevant to them. The patient decides whether to accept any of the options and, if so, which one. They also have the right to accept or refuse an option for a reason that may seem irrational to the doctor, or for no reason at all.

d. If the patient asks for a treatment that the doctor considers would not be of overall benefit to them, the doctor should discuss the issues with the patient and explore the reasons for their request. If, after discussion, the doctor still considers that the treatment would not be of overall benefit to the patient, they do not have to provide the treatment. But they should explain their reasons to the patient, and explain any other options that are available, including the option to seek a second opinion.

And see http://www.gmc-uk.org/guidance/ethical_guidance/6879.asp ,

the GMC Guidance on good practice/list of ethical guidance/ End of Life care/Decision-making models/Patients who have capacity to decide, it says

"14 If a patient has capacity to make a decision for themselves, this is the decision making model that applies:

(a) The doctor and patient make an assessment of the patient's condition, taking into account the patient's medical history, views, experience and knowledge.

(b) The doctor uses specialist knowledge and experience and clinical judgement, and the patient's views and understanding of their condition, to identify which investigations or treatments are clinically appropriate and likely to result in overall benefit for the patient. The doctor explains the options to the patient, setting out the potential benefits, burdens and risks of each option. The doctor may recommend a particular option which they believe to be best for the patient, but they must not put pressure on the patient to accept their advice.

(c) The patient weighs up the potential benefits, burdens and risks of the various options as well as any non-clinical issues that are relevant to them. The patient decides whether to accept any of the options and, if so, which. They also have the right to accept or refuse an option for a reason that may seem irrational to the doctor or for no reason at all.

(d) If the patient asks for a treatment that the doctor considers would not be clinically appropriate for them, the doctor should discuss the issues with the patient and explore the reasons for their request. If, after discussion, the doctor still considers that the treatment would not be clinically appropriate to the patient, they do not have to provide the treatment. They should explain their reasons to the patient and explain any other options that are available, including the option to seek a second opinion or access legal representation."

21 The patient is therefore not necessarily able to have choice as to treatment. Such clinical decision-making responsibility should be legally separated in the forthcoming legislation for ethical purposes from commissioning responsibility. A doctor considering the pros and cons of commissioning services and medicines in general may be adversely affected by that when having to weigh up certain treatment or medicine to a terminally ill patient. It does not work this way round.

22 Not all GPs are as far-seeing and conscientious as Dr Macgregor above and we believe GPs like him should be able to enhance their practice but less enlightened GPs should be prevented positively from making mistakes which will harm patients. Hence, this formal separation would at least protect both the public and those GPs participating in consortia.

23 Ways of doing this would include formally seconding GPs to the consortia from GP practices or separately employing them in the consortia for the time they are acting in the consortia, so that their role is clear and defined. The GPs or commissioners of services in the consortia should seek information from GPs on the frontline.

SUMMING UP

24 From the above it is clear that expanding the role of GPs into the business side is complex and has to be done in a way which is not only correct but can be seen to be correct. Legislation should cover this separately from GMC Guidance.

25 We find ourselves very surprised by the great haste of the huge proposed changes and we seek greater care as to how they go forward. Let us not forget the many sick, elderly and vulnerable people who deserve the best that can be afforded to them. It is not an exaggeration that the risks of not planning ahead fully are grave and enormous for the public in England. It should be remembered that it is of course also ourselves who will be affected by these changes as we will be old and ill in due course. Please make sure the legislation gives them strong protection and then put it into practice so that the good ideas behind the changes will be achieved.

26 Flexibility for evolution of the new system can still be built in. Without thorough checks and balances of practice the new system is likely to be much too weak and viability of the NHS will be uncertain.

March 2011