Conflict? - what conflict?

1 June 2017 marked the introduction of new NHS guidance on conflicts of interest from NHS England. The new guidance is intended to condense previous guidance on conflicts into a more practical, easy to follow guide to the identification, declaration and management of conflicts as they arise in the context of NHS decision-making. However, it does not replace lengthier and more detailed statutory guidance to CCGs on managing conflicts - such guidance having last been produced in June 2016 and now needing some minor updates to reflect the cross-system guidance now introduced.

This new guidance is the result of a detailed review of the management of conflicts within the NHS, which revealed a number of inconsistencies in the way in which individual NHS organisations were managing conflicts. From this review it was clear that some organisations were simply not applying their minds to the issue of conflict at either an early enough stage to implement appropriate management, or at all. The new guidance seeks to clarify the ‘rules’ and lays the groundwork for more consistency in how these issues are managed across the NHS.

The risks of not complying

There has been no obvious recent change when it comes to the issue of conflicts. The appropriate management of conflicts is simply expected from those in public office responsible for taxpayers’ money; duties on NHS bodies impose requirements of fairness, openness, transparency, and integrity… and the list goes on.

It is often forgotten that allegations of bias or inappropriate management of conflicts can adversely affect not only the defendant NHS organisation but also individuals involved. Appropriate management of conflicts is crucial to protect an organisation and individuals against a loss of reputation; a loss of professional standing or status; a risk of legal challenge by way of judicial review for example, which could lead to a whole decision-making process or procurement process being overturned; or even a risk of criminal action based on allegations of fraud or misfeasance in public office.

What is a conflict?

In the new guidance a conflict of interest is defined as:

‘a set of circumstances by which a reasonable person would consider that an individual’s ability to apply judgement or act, in the context of delivering, commissioning, or assuring taxpayer funded health and care
services is, or could be, impaired or influenced by another interest they hold.’

The definition has not changed substantively. The important point to bear in mind is that managing conflicts is not just about managing actual conflicts - it is about considering whether a certain interest that an individual might hold could give rise to a perception of bias or conflict and, if so, managing that possible perception. This is often difficult to do as it can be very subjective. Caution is always advisable - if there is any doubt as to whether something is a conflict or could give rise to a perception of conflict, you should manage the issue as if it were a conflict.

What are ‘interests’? 

The new guidance separates interests into four categories:

• financial interests
• non-financial professional interests
• non-financial personal interests
• indirect interests (having a close association with another who may have such an interest)

Suffice to say that it is not only financial interests that fall within the scope of the guidance and need careful management.

How should conflicts be managed?

Those who hope the guidance will provide an easy answer to managing conflicts may be disappointed. The guidance does not and cannot give NHS organisations a ‘one size fits all’ solution as every conflict or potential conflict situation will be different based on the interest declared; however, it does provide some common sense management principles, referred to in the guidance as ‘general management actions’. These include: 

• no action warranted
• restricting an individual’s involvement in discussions
• excluding them from decision-making
• removing an individual from their role if the conflict is so significant that they are unable to operate effectively in the role

Of course each situation will turn on its own facts, but as a general rule of thumb, governance arrangements should be such within each NHS organisation so as to avoid individuals with interests or potential interests in matters being involved in decision-making concerning those matters. For example, committees, sub-committees, working groups etc should be constituted in such a way and quorums should be specified in standing orders and terms of reference in such a way so as to avoid obvious conflicts arising in the first place.

The guidance makes clear that management of conflicts needs to be pro-active to be truly effective. It is much more than excluding an individual from discussions and/or ultimate decision-making. Any conflicts of interest that an individual has or might have should be declared at the earliest opportunity (legislation requires conflicts to be declared within 28 days of the interest arising) and consideration should be given to the management of such conflicts at the earliest opportunity rather than waiting until the conflict arises. Board papers should not be sent to any individuals who are or might be conflicted, as the mere disclosure of papers to such an individual could render a process unfair or biased such as to lead to legal challenge. The guidance also includes new rules on accepting gifts and hospitality to ensure consistency across the NHS in responding to such offers. The inadvertent acceptance of inappropriate hospitality may lead to challenges of bias and conflict later down the line when you least expect it. 

Whilst the guidance seeks to build on already existing rules and principles around the management of conflicts, the message is clear - all staff have a role to play in ensuring the appropriate declaration and management of conflicts, and all breaches of the rules should be appropriately investigated and appropriate action taken. All NHS organisations should ensure that their conflicts of interest policies are consistent with the new guidance and that clear guidance is provided to all staff on how to declare interests and report any breaches. 

Legal challenges brought due to allegations of conflict or bias will now be based on the new guidance as well as relevant legislative provisions around the management of conflicts and, in view of the guidance, it will be difficult to justify situations where conflicts were either not identified or not managed appropriately. Maintaining an audit trail of the management of conflicts is crucial in evidencing a fair and proper process has been followed - a little time spent on the pro-active management of conflicts and the proper recording of that management process might ultimately mean a lot of time saved in defending costly and time-consuming legal battles which potentially place the reputation of the NHS and its employees at risk. 

Hill Dickinson’s governance and regulatory team has extensive experience of advising on conflicts of interest, including systems and policies to manage such interests and dealing with challenges which have been brought against the NHS on conflict issues.