Written evidence from Professor Christopher
Newdick (CFI 36)
COMMISSIONING NHS CARE - WILL GP CONSORTIA
HAVE THE SAME DUTIES AS PCTs?
— GP
Consortia may have different commissioning duties by comparison
to PCTs because they will be composed of GP practices with strong
private interests. Arguably, they may be "hybrid"
authorities.
— "Hybrid"
authorities have private interests recognised in law. By comparison
with PCTs, they may be subject to less control both under judicial
review and the Human Rights Act. If correct, this could dilute
their legal accountability to patients, especially with respect
to commissioning NHS care.
— Will
patients' rights be affected under the new NHS regime? To remove
doubt, the private interests of GP Consortia should be made explicit
in the Health and Social Care Bill.
1. This is my own submission to the Health Committee
in response to the question raised on NHS accountability in the
inquiry, Commissioning: follow-up. I consider whether GP
Consortia will have the same duties as PCTs. In particular, will
GP Consortia be subject to the Nolan principles, especially
the commitment to "selflessness"?
A. WHY IS
THE QUESTION
IMPORTANT?
2. The question is crucial for the following
reason. PCTs are public authorities. They have no existence outside
the NHS Act 2006 and their sole function is to serve public interests.
They have no private agenda and those that serve PCTs are subject
to the Nolan principles of public life of "selflessness,
integrity, objectivity, accountability, openness, honesty and
leadership." PCTs have no competing private interests when
they commission NHS care. Priority setting can be sensitive and
controversial, but these difficult decisions are made without
regard to private interests.
3. GP Consortia will be different. They will
be composed of GP practices. GP practices are not created by statute.
They do have a private existence. Although GP Consortia will be
governed by statute, GP practices are businesses which provide
services to the NHS. Arguably, given their composition, GP Consortia
may be "hybrid" authorities because, in addition to
their public duties, they will have distinct private interests
of their own. Would it be lawful for a GP practice to compromise
patient care in order to protect its private interests,
or those of the GP Consortium? If so, would patients have a right
to know about it?
B. CURRENT ARRANGEMENTS
WITH PCTS
4. Current guidance does not permit GPs to make
savings at the expense of patient care. The following statements
explain how the balance between financial control and patient
need has been struck. Although each recognises the need for savings
where reasonable, prescribers are placed under a consistent duty
to respond to patients' clinical needs:
(i) The General Duty to Prescribe Medicines
5. GPs have had a consistent prescribing duty
in their contract with health authority commissioners. The duty
has always insisted that GPs prescribe on the basis of patient
need. Subject to medicines on the "black" and "grey"
lists, current regulations state:
… a prescriber shall order any drugs, medicines
and appliances which are needed for the treatment of any patient
who is receiving treatment under the contract by issuing to that
patient a prescription form (GMS (Contract) Regs 2004, sched 6,
para 39). (The same principle also applies to PMS and APMS practices.)
(ii) Generic Prescribing and "Switching"
Medicines
6. Generic drugs should be prescribed whenever
it is possible to do so without harming the quality of care. Conversely,
when a generic drug will not provide satisfactory care, the "Hippocratic,"
needs-based duty prevails. The Department of Health has stated:
… the Department of Health will introduce generic
substitution in primary care. This will enable pharmacists and
other dispensers to fulfil a prescription for a branded medicine
by dispensing an equivalent generic medicine. Provision will be
made to allow the prescriber to opt out of substitution where,
in his clinical judgment, it is appropriate for the patient to
receive a specific branded medicine. In these circumstances, the
named brand must be dispensed (emphasis added)(Pharmaceutical
Price Regulation Scheme 2009, para 7(6)(ii)).
7. A similar approach is recommended in respect
of the switching of patients to less expensive drugs. The balance
between community and individual need is explained
as follows by the BMA and NHS Confederation:
2.3 … switching patients to less expensive
drugs usually within a therapeutic class is generally appropriate
where there is no contra-indication and where there is evidence
of equal or greater efficacy. This may release cash within the
system that can be invested in additional and different care for
patients. Patients should be informed of the rationale for these
changes, for example via patient information handouts.
2.4 Switching significant numbers of patients'
drugs within a therapeutic class (eg either by changing the brand
or by changing the drug) should only be undertaken where the predicted
NHS saving is expected to be sustained and provided there is no
clinical disadvantage for the patient…
2.6 It is appropriate that doctors and health
professionals have the clinical freedom to switch individual patients
to higher priced drugs (branded or otherwise), or to alternative
drugs, for clinical reasons (emphasis added) (Revisions
to the GMS Contract (BMA and NHS Confederation, 2007), Annex
8).
(iii) Incentive Schemes
8. Incentive schemes may be used to encourage
clinically and cost-effective prescribing, but they may not create
conflicts of interest between GP and patient and may not be used
to compromise patient care. In Strategies to Achieve Cost-Effective
Prescribing (DoH, 2010), the Department of Health recommends
that:
4(ii) Health professionals should base their
prescribing decisions on individual assessments of their patients'
clinical circumstances, eg patients whose clinical history suggests
they need a particular treatment should continue to receive it…
It continues:
7(iii) … Payments or any other inducements
to good practice must not reward prescribers or their practices
simply for blanket prescribing of particular named medicines (ie
without consideration of the individual circumstances of patients).
9. These regulations and guidelines all give
a consistent message, ie that GPs should reduce expenditure wherever
it is reasonable to do so, but patients should always be treated
on the basis of clinical need. The cost-consequences of these
guidelines do not undermine GPs' "Hippocratic" commitments.
Efficiency savings must, therefore, be made from the "supply-side"
(ie the NHS) not the "demand-side" (ie the patient).
10. At present, the financial burden of these
guidelines is placed on PCTs, not GPs or their patients. However,
when GP consortia become the "supply-side" (ie commissioners),
may the burden ever transfer to patients? Will these "needs-based"
principles survive when the Bill becomes law? On this question
the Bill is unclear. Although it states that GP consortia, "must…
make provision for dealing with conflicts of interest" (page
227, sched 1A, para 4(2)), it does not explain how patients' public
rights will be balanced against GPs' private interests.
Such a question could never arise in respect of PCTs. The Bill
should state in effect whether the commissioning duties of GP
Consortia will change patients' rights to care.
C. THE LEGAL
UNCERTAINTY
11. There is also a related legal issue. Since
1999, PCTs have been subject to demanding standards of judicial
review. Will the same legal standards apply to GP consortia? Because
PCTs are exclusively public bodies, judicial review is
not diluted by private interests. By contrast, the position of
GP consortia is ambiguous. They will be statutory bodies and,
therefore, subject to judicial review. However, because GP consortia
will be composed of GP practices with their own private
interests, the extent of judicial review may differ. Therefore,
it may be argued that they are "hybrid" statutory authorities
performing both public and private functions. If so, how will
judicial review accommodate their private interests when
GP consortia perform their statutory functions?
12. Case-law suggests that their legal duties
may not be identical to those owed exclusively by public
authorities because GPs' private rights also merit protection.
If this is correct, then patients' rights to judicial review,
or under the Human Rights Act, will be different. The nature of
the ambiguity in the Health Bill is illustrated in R v Northumbrian
Water Ltd, ex p Newcastle and North Tyneside HA [1999] Env
LR 715. A private water company refused to fluoridate its water
supplies despite the request of the NHS health authority that
it do so. The issue was (a) whether a privatised water company
was subject to judicial review and (b) the extent of the review
available. The court confirmed that judicial review was available
because the private company was clearly involved in providing
a public service. However, the extent of the review was limited
because the company had legitimate private interests of its own.
The court said that the company was entitled to balance its own
private interests against the public duties imposed upon it by
the statute. This lengthy extract from the judgment describes
the point. Collins J said:
It is perfectly clear that as a commercial organisation
the respondent company cannot be said to possess powers solely
in order to use them for the public good. It has its commercial
obligations to its shareholders. It must exercise its powers in
accordance with those obligations. Equally it must comply with
any statutory duties imposed upon it by Parliament. It must also
exercise any discretion that it may be given within the scope
of the statute which confirms it…
Thus a water company is entitled to say no [to fluoridation],
even though it has no reason to doubt that it would be in the
interests of the health of its customers, that its customers want
it, that the health authority wants it and that it is in accordance
with the policy of the government. It is entitled to say to itself
"it would involve us in expense. It will involve us in potential
liability if things go wrong, and it is quite impossible to say
to be sure that there will not be a mistake made by an employee
which creates a liability in those circumstances. We are very
sorry but we do not think that we wish to take the risk."
… that would be a perfectly proper approach
for a water company to take and that is because it does not have
the same duty that a public body, which is not a commercial undertaking
has. It is entitled to look to the interests of its shareholders
and that is something which is inevitable, as it seems to me,
when privatised bodies are given control of matters such as the
provision of water, and something which no doubt Parliament has
recognised. If Parliament wishes to ensure that a discretion is
exercised on particular principles, then it must set out those
principles in the statutory provisions.
The Bill does not state whether similar reasoning
could be applied to GP consortia. By analogy, the rights of patients
also cry out for clarification.
13. This demonstrates how private interests may
minimise the impact of judicial review. What is the position of
statutory authorities composed of small businesses with private
interests (eg GP consortia)? Will the Nolan principles, especially
"selflessness," apply to GP consortia as they do to
PCTs? This goes to the heart of the duty to commission NHS care
for patients. Current constraints mean that complaints about NHS
priority setting are likely to increase. The rights and duties
of patients and GP consortia should surely be spelt out clearly
in the Health and Social Care Bill.
14. This question will become more common as
we engage private businesses to provide public services. A similar
problem arose with the previous Health and Social Care Bill in
2007 in respect of the rights of residents funded by local authorities
in private residential homes. Were they protected by the Human
Rights Act 1998 when the home wished to exclude residents from
a home, or close it down completely? The matter had to be resolved
by litigation and in YL v Birmingham City Council [2007] UKHL
27 the courts decided that, given the status of private nursing
homes, residents had no human rights protection in these circumstances.
The government reversed the impact of the ruling by changing the
Health and Social Care Bill. Thus, care home providers may now
be subject to the Human Rights Act because section 145(1) of the
Health and Social Care Act 2008 was specifically included to have
this affect.
CONCLUSION
15. Similar uncertainty exists in the current
Health and Social Care Bill. The Bill fails to explain how GPs'
private interests (and patients' rights) will be affected under
the new regime. It is unacceptable that a question of such importance
should remain unsettled. As in 2007, the current Bill should make
the new position clear. Much better to clarify things clear now
rather than waste time and resources asking judges to do so after
the Bill becomes law.
Christopher Newdick
Professor of Health Law, University of
Reading, and
Special Advisor to the South Central Priorities Committee
February 2011
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