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A good constitution


24 March 2011

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GP commissioning consortia (GPCC) will not
come into being as separate legal entities until the Health
and Social Care Bill has been enacted. The first GPCCs
should go live sometime in 2012 (the timetable is constantly
changing) but, until then, shadow GPCCs are being set
up and can apply for 'pathfinder' status. However, these
shadow GPCC's have no legal form and they are, in essence,
an association or interest group represented by its member
practices.

GP commissioning consortia (GPCC) will not
come into being as separate legal entities until the Health
and Social Care Bill has been enacted. The first GPCCs
should go live sometime in 2012 (the timetable is constantly
changing) but, until then, shadow GPCCs are being set
up and can apply for 'pathfinder' status. However, these
shadow GPCC's have no legal form and they are, in essence,
an association or interest group represented by its member
practices.

But there is a need for consortia to get a constitution GP commissioning consortia (GPCC) will not
come into being as separate legal entities until the Health
and Social Care Bill has been enacted. The first GPCCs
should go live sometime in 2012 (the timetable is constantly
changing) but, until then, shadow GPCCs are being set
up and can apply for 'pathfinder' status. However, these
shadow GPCC's have no legal form and they are, in essence,
an association or interest group represented by its member
practices.

But there is a need for consortia to get a constitution
together now. GP practices in England are relatively small
(an average patient list of 6,330). Although no minimum size
has been prescribed for GPCCs, they are likely to be most
effective with a total practice population of at least 100,000
patients and so GPCCs will, on average, have more than 15
practices as members.

Practices are not used to working together in this way.
Disputes between partners of practices are common, so
getting different practices to work together is a challenge in
itself. Practices are slowly coming together around GPCCs but
are finding it difficult to agree on certain key issues.
GPs are not commissioners and are not experienced in
running corporate organisations, and so they are having to
learn a lot of new skills quickly.

Shadow GPCCs have no legal form and so individual
member practices will need to meet the costs, receive any
income and incur any liabilities of operating as a shadow
GPCC. In particular, Pathfinder GPCCs are now receiving
funding for their activities. It is therefore vital that those
practices have agreed terms with the other member practices,
to have a right of recourse or contribution for such costs or
liabilities.

Accordingly, although a constitution is not legally required
for a shadow GPCC, it can still serve a vital purpose in
providing a framework and rules under which the emerging
shadow GPCCs, and their constituent practices, can: work
together; agree to contribute to costs and share liabilities;
acquire or buy in additional skills required; and make
decisions and resolve contentious issues.

Schedule 2 of the Health Bill details what must be
included in the constitution of a GPCC and a constitution
must specify:
• The name of the GPCC.
• The area to be covered by the GPCC.
• Its members. These must be GP practices providing primary care services within the area. Each partnership
(and not its individual partners) will be the member and
each practice can be a member of more than one GPCC.
• Arrangements for the discharge of its functions (including
determining the remuneration and other terms and
conditions of its employees).
• The procedure to be followed in making decisions.
• Provisions for dealing with conflicts of interest.
• Provisions to secure effective participation by each member.
In addition to the requirements of the Bill, a constitution
should also contain provisions for:
• Delegation of its powers to an executive committee, as this
will enable decisions to be made quickly and efficiently.
• The exercise of any functions on its behalf by any of its
members or employees, to enable member practices to
contribute their skills and employees to the work of the
GPCC, if required.
• The reservation of certain key decisions to the members.
This is to provide a counter balance to the delegation of
day-to-day matters to an executive committee and ensure
that certain matters (such as a proposed merger with or
delegation of powers to another GPCC) must come back
to the full membership to decide.
• Any of the key issues that are discussed in more detail
below.

The key issues that will arise when considering a
constitution for your GPCC will include:
• Eligibility, application for and termination of membership:
Andrew Lansley has stressed time and again that it will
be up to each GPCC to determine who will eligible for
membership. This is at odds with certain provisions in the
bill which, for example, empower the NHS Commissioning
Board to add or remove members from a GPCC and
to amend its constitution. However, it is important to
determine in the constitution who can become members,
the admission process and, importantly, how a member
can be expelled, if required.
• Nominated representative: to avoid having to deal with
every Partner of every member practice, each member
should be required to appoint a nominated representative
who has power to represent and vote on behalf of that
member.
• Executive committee: as noted above, the appointment of
an executive committee is vital in ensuring the effective
and efficient operation of the GPCC. To work in this way,
numbers should be restricted (an odd
number of between five and 11 would achieve the right balance
of representation and efficiency and speed of decision
making) and the constitution should therefore cover: the
appointment and removal process. This would normally
involve some form of election to select representatives to
serve on the committee for a limited period; the powers
delegated to the executive committee so that it is clear
what they can and cannot do on behalf of the GPCC; and
the procedures for meetings of the committee, including
the giving of notices, the quorum required for meetings
and voting (usually one person one vote, but with a casting
vote for the chair if there is a tied vote).
• Members meetings and resolutions: it is vital that
provisions are included for members meetings and these
should cover: the right to call meetings; the quorum
required for and voting at meetings. Voting is, without
doubt, the most contentious issue and the principal
choices (there are other options) are between, one
practice, one vote – favoured by the smaller practices;
or voting according to list size – favoured by the larger
practices.
• Conflicts of interest. This is an area that is causing concern
publicly but it is actually relatively simple to devise an
effective procedure to deal with any conflicts of interest.
• Employment and remuneration terms to cover the costs
of the executive committee and any employees of any
member practices who are seconded to work for the
GPCC.

Looking at the constitution of your local PCT will provide
little help as, although PCTs are also statutory bodies, they
are much larger organisations with a more complex mix of
purposes. Accordingly, their constitutions are too complex
and would not be a good starting point for the drafting
of a GPCC constitution which must be based around the
requirements of the Bill.
The Department of Health published a document The
Functions of a GP Commissioning Consortia: A working document
which provides some general guidance for consortia and
there are plans for more detailed information in the future to
come from the NHS Commissioning Board.

Ross Clark
Head of Corporate
Hempsons

 

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