Several key areas of law are brought sharply into
focus by the White Paper. The challenge for GP consortia will
be to understand the relevance and importance of these to
their commissioning and other activities. In particular, decision
making processes will be subject to law and regulation that
most GPs may well not have encountered in operating their
businesses to date. Developing a familiarity with the most
important areas of law – and the circumstances where they
Several key areas of law are brought sharply into
focus by the White Paper. The challenge for GP consortia will
be to understand the relevance and importance of these to
their commissioning and other activities. In particular, decision
making processes will be subject to law and regulation that
most GPs may well not have encountered in operating their
businesses to date. Developing a familiarity with the most
important areas of law – and the circumstances where they
Several key areas of law are brought sharply into
focus by the White Paper. The challenge for GP consortia will
be to understand the relevance and importance of these to
their commissioning and other activities. In particular, decision
making processes will be subject to law and regulation that
most GPs may well not have encountered in operating their
businesses to date. Developing a familiarity with the most
important areas of law – and the circumstances where they
become most relevant – will enable consortia to construct a
legal risk matrix which will help them to make most efficient
use of the legal support they will need to operate effectively
and within the requirements of the law.
Procurement
Perhaps most fundamentally of all, commissioning consortia
will be spending public money and will have the full legal
responsibility that goes along with that. This means that
procurement law will apply to the process of awarding
contracts to providers of both goods and services.
This does not mean however that a full OJEU procedure or
other process has to be undertaken every time a consortium
wishes to purchase something. There will be numerous supply
chain arrangements already in place in order to ease the
process (i.e. framework agreements for goods or services which have been put in place following a full public procurement exercise undertaken by central government).
However even in these circumstances, if a consortium wishes then to put in place a ‘mini-competition’ among providers on a framework, EU procurement principles will apply and consortia will be obliged to adhere to them. These principles include a
requirement for the consortium to operate in a fair, open and
transparent manner.
The ‘Procurement Guide for Commissioners of NHS
Services’ published by the Department of Health should be
fully understood, as well as current guidance on cooperation
and competition. These are detailed and extensive
requirements but are among the most important to become
familiar with, in order that the risks of non-compliance can be
understood and minimised.
The consequences of a challenge to a procurement
process, if the challenge is upheld, may be far-reaching and
reputationally damaging. For example, a contract may be
cancelled, there may be liability for damages and a consortium
may be obliged to undertake a fully compliant legal process in
order to procure the goods or services in question lawfully.
Compliance with the requirements of procurement law may
not always sit comfortably with other legal requirements, for
example certain consultation obligations, and consortia will
need to examine each situation carefully in order to minimise
its risks on a case by case basis.
Information law
It will be important that consortia have the right processes
in place both to obtain information from and disseminate information to the public, patients, other NHS organisations
and key stakeholders. Among the activities a consortium will
need to embrace are:
• Liaising with the Information Commissioner
• Compliance with the requirements of the Data Protection
Act and the Environmental Information Regulations
• Responding appropriately to requests made under the
Freedom of Information Act
The key challenge is to balance the need for transparency
with the ability to maintain business continuity whilst
respecting patient, staff and corporate confidentiality.
Consortia will need to tread a careful path, for example, in the
event of a Serious Untoward Incident, in order to manage it
proactively and protect their reputation.
The consequences of non-compliance are potentially
very serious and have been brought into the public eye once
more very recently with the decision of the Information
Commissioner regarding Hertfordshire County Council,
which was fined £100,000 for a breach of the Data Protection
Act, for faxing sensitive information to a wrong number. It
is also possible in the future that the law may be changed to
include obligatory reporting of non-compliances. In particular,
if consortia are considering outsourcing certain back-office
functions, steps will need to be taken in order to ensure that
all information and data is treated carefully and in compliance
with legal requirements.
Consultation
As commissioners of health services, GP consortia will be
subject to the duty to involve the public in their planning and
decision-making processes that is currently contained in s. 242
of the NHS Act 2006 and also the NHS Constitution.
This duty applies to any proposals that may have an
impact on patient services, and is not limited to major service
changes. This means that consortia will need to build public
involvement into their day-to-day commissioning activities
rather than regarding it as an additional task that is only
required in exceptional cases.
Fortunately, the duty to involve the public does not require
consortia to carry out a lengthy consultation exercise whenever
they are considering minor service changes. The degree of
public involvement should be proportionate to the impact on
patients of the proposed changes, and will range from merely
informing patients that a clinic’s opening times are changing
to full public consultation on the relocation or closure of
services.
Consortia will also need to be able to show how public
involvement has informed their commissioning decisions.
Whilst this does not mean that such decisions become
a referendum, with the most favoured option being
implemented, consortia should proceed with caution if they
want to implement service changes in the face of significant
public opposition.
Public Decision Making
GP Consortia will be statutory bodies, and therefore subject to
public law requirements when making decisions. This means
that they must ensure that they act within their powers, and
make rational and reasonable decisions.
Rationality requires consortia to take account of all
relevant considerations, such as DH or Commissioning Board
policy, NICE guidance and views expressed through public
involvement. At the same time, consortia must not take
account of irrelevant considerations, such as the potential
impact of a commissioning decision on an individual GP’s
practice. Finally, consortia must ensure that their decisions are
not so unreasonable that no reasonable public body would
have made them.
The decisions of public bodies are subject to challenge
by way of judicial review. This is the legal process by which
the Courts decide whether a public decision has been made
lawfully. If it has not, then the decision may be overturned
and the public body will need to consider the issue afresh.
The focus of judicial review is usually the process by which
a decision is made rather than the merits of the decision
itself. It is therefore important for consortia to adopt clear
and robust decision-making protocols, and to maintain good
documentation in support of their decisions.
The status of consortia as public bodies is also likely to
mean that they must comply with other legislation such as
the Human Rights Act and the Equalities Act. These statutes impose further responsibilities in respect of the decisionmaking
process, and the factors that should be taken into account in making those decisions.
Conclusion
Participation in consortia will require GPs to adopt a new
mindset and approach. Unlike their own practices, the
consortia will be public bodies that are subject to a range of
legal duties with which they must comply. In addition, the
commissioning decisions they make may be subject to a greater degree of scrutiny than they have been used to as providers of healthcare services. An early understanding of the main legal pitfalls, and how to avoid them, is needed if the transition to GP commissioning is going to be achieved smoothly.
Peter Edwards regularly advises health bodies on their reconfiguration plans and has supported a number of major consultation exercises as well as acting in several high-profile judicial review cases involving matters such as the closure of hospitals, fluoridation of the water supply and decisions not to fund particular medical treatments.
James Clarke is a partner in Capsticks’ Commercial Department
and advises on a broad range of healthcare commercial work, including large scale healthcare projects and joint ventures, complex regulatory and intellectual property matters, public procurement and all aspects of commercial healthcare contracting in both the private and public sectors.
