Constitution of Guildford and Waverley CCG
(From the G&W Support Group, 10th December 2012)
A) Whistle blowing
Almost all the problems which have arisen in public procurement and privatisation of services have been facilitated by the absence of robust provisions to protect whistleblowers.
Best International Practices for Organizations
All organizations, whether public, private, or non-profit (including governmental) should, as a best practice, adopt a robust whistleblower system to induce its employees to internally report illegal or excessively risky activity directly to its board of directors or trustees. Without a robust whistleblower system, directors/trustees of the organization may fail in their oversight responsibilities. A robust whistleblower system encourages internal reporting of misconduct so as to permit it to be corrected. It is particularly important in countries which provide significant financial rewards to whistleblowers who externally report illegal behaviour to government entities.
There have been numerous examples of boards of directors/trustees who have been uninformed as to problems in the organization, even though lower level employees knew about these problems. These boards were misled because they relied primarily on top management and the auditors for their information.
These should be built into the Constitution of the CGG and if at all possible be mandatory for all companies considered for the provision of goods and services to the CGG. This will help to ensure that costs will be lower in the long term.
There is a provision in Clause 9 The Group as Employer, subclause 9.10, which covers employees:
The Group will adopt a Code of Conduct for staff and will maintain and promote effective ‘whistle blowing’ procedures to ensure that concerned staff have means through which their concerns can be voiced.
However, there is no such provision regarding providers of services. It should be considered for instance in 4.2.2 as shown below.
B) Section 4 – Mission, Values and Aims
We suggest the following additions to Section 4.2 Values:
1. Add to existing list in 4.2.2:
Commissioning and procuring services
They shall be secured in a fair and ethical manner. We will only commission services from providers who can demonstrate a commitment to their social responsibilities and to sustainability principles, including effective ‘whistle blowing’ procedures.
Openness and transparency
These will be paramount in the group’s decision-making processes, and service planning, and coupled with the optimum involvement of local people and service users.
Equality and fairness
They will be taken into account in considering the healthcare needs of different groups in the CCG’s area.
2. Modify 4.4.1 in Accountability:
c) Holding meetings of our Governing Body in public on a monthly basis (except where we consider that it would not be in the public interest in relation to all or part of a meeting) that will be communicated well in advance of the meeting date not only through the CCG website and social media, but also via GP surgeries and the local press; [amplifies existing c)]
d) Production of an extensive website, detailing our role, ways of working, policies, performance information, tender, contract, procurement and service details as well as Board papers, consultations, decisions, local pathways, educational material and a Freedom of Information log and responses; [insert after c)]
3. Substitute for l) in 4.5.1 Accountability:
l) complying with the Freedom of Information Act 2000, disclosing on request all information that can lawfully be disclosed and flagging it for inclusion on the website’s Freedom of Information log; [substitute for old l)]
4. Add to 4.5 Accountability before existing 4.5.2:
4.5.2 The Group will also:
(a) disclose upon request all information that can lawfully be disclosed, rather than simply all such information that must be disclosed.
(b) publish all commissioning decisions and consultation exercises on its website.
(c) hold a number of events each year with local people and organisations to explain the progress and work of the CCG.
(d) publicize meetings of the CCG well in advance on the CCG’s website, the local press and in local libraries and GPs’ surgeries.
4.5.3 The Governing Body etc … (as in original G&W draft 4.5.2)
C) Section 5 – Functions and General Duties
Insert the following as preamble either at start of 5.2 or maybe at start of 5.2.7:
The CCG will endeavour to work with as wide as possible cross-section of the people who use or who may use the services provided, and the groups which may represent such people, to provide them with information about the services provided by the CCG in a variety of ways, tailored to the needs of the local community. The CCG will consult as widely as it can on planning and development of services, and take into account the views expressed when making decisions.
The CCG will take all steps that it can to ensure that engagement is adapted to meet the needs of various groups and service users. The CCG will monitor on a regular basis its compliance with this statement of principles.
D) Section 6 – Decision Making: the Governing Structure
Add to 6.4.1 Committees of the Group as a):
a) The Group shall have a committee called the Members’ Forum which shall comprise all of the Practice Representatives at any one time. If a resolution is passed by the Members’ Forum by a majority of at least 51% of all the Practice Representatives, the Governing Body is required to abide by the decision of the Forum. [insert as first committee]
E) Section 8 – Standards of Business Conduct and Managing Conflicts of Interest
Modify 8.4.1 under 8.4 Transparency in Procuring and Managing Services [clause 8.6.1 in the Model] with the passage shown underlined:
The Group recognises the importance in making decisions about the services it procures in a way that does not call into question the motives behind the procurement decision that has been made. The Group will procure services in a manner that is open, transparent, non-discriminatory and fair to all potential providers. All contracts for services are to be made available for public scrutiny and will not include any clauses restricting this provision by claiming ‘commercial confidentiality’ in any shape or form.
F) Section 10 – Transparency, Ways of Working and Standing Orders
Modify 10.1.3 to read as follows:
The Group may use other means of communication, including circulating information by post. In addition, information about the Group’s key communications can be inspected at its headquarters, and will be provided to local libraries and will be sent upon request by email to local organisations and individuals.
G) Schedule D – Prime Financial Policies [this was Schedule E in Model from NCB]
We suggest the following additions be considered insofar as they are not covered elsewhere:
• will, consistently with its obligations under, inter alia, the Public Contracts Regulations 2006 and applicable Community law, ascertain whether it is necessary, desirable or appropriate to invite competition when purchasing in order to ensure it will incur only budgeted, approved and necessary spending
• will seek value for money for all goods and services by reference to the optimum combination of whole life cost and quality;
• shall ensure that, subject to the threshold provisions of the Public Contracts Regulations 2006, competitive tenders are invited for
• the supply of goods, materials and manufactured articles;
• the rendering of services including all forms of management consultancy services (other than specialised services sought from or provided by the Department of Health); and
• for the design, construction and maintenance of building and engineering works (including construction and maintenance of grounds and gardens) for disposals
• will, in relation to each purchasing decision concerning health care and social services
• consider the extent to which the Public Contract Regulations 2006 require any form of competition and consider the most appropriate process and procedure for awarding the relevant contract or contracts; and
• in that regard give consideration to whether the use of a framework agreement, including the use of approved lists, is the most appropriate means of appointing providers;
• shall, wherever possible and where it is consistent with legal requirements, ensure that contractual provisions, procurement procedures and selection and award criteria are designed to ensure that contractors and providers are:
• good employers who comply with all relevant employment legislation, including the Public Interest Disclosure Act 1998;
• maintain acceptable standards of health and safety and comply fully with all legal obligations;
• meet all tax and National Insurance obligations;
• meet all equal opportunities legislation;
• are reputable in their standards of business conduct;
• respect the environment and take appropriate steps to ensure that they minimise their environmental impact.
• will, in each procurement and consistently with the relevant law, exclude companies which have been convicted of offences, or whose director(s) or any other person or company who has powers of representation, decision or control of the company has or have been convicted of offences in the conduct of their business or committed an act of grave professional misconduct in the conduct of their business, such as breaches of employment, equal opportunities or environmental legislation. However, any corrective/remedial action taken by the company in response to such an offence should also be taken into account in determining its suitability as a bidder.
• will, in each procurement and consistently with relevant EU and international law, ensure that contractual provisions, procurement procedures and selection and award criteria prohibit or restrict contractors’ use of offshore jurisdictions and/or improper tax avoidance schemes or arrangements and/or exclude companies which use such jurisdictions and/or such schemes or arrangements.
The Guildford and Waverley CCG may only negotiate contracts on behalf of the group, and the group may only enter into contracts, within the statutory framework set up by the 2006 Act, as amended by the 2012 Act. Such contracts shall comply with:
(a) the group’s standing orders;
(b) the Public Contracts Regulation 2006, any successor legislation and any other applicable law; and
(c) take into account as appropriate any applicable NHS Commissioning Board or the Independent Regulator of NHS Foundation Trusts (Monitor) guidance that does not conflict with (b) above.
In all contracts entered into, the group shall endeavour to obtain best value for money. The accountable officer shall nominate an individual who shall oversee and manage each contract on behalf of the group.
G) Schedule N – Standing Orders [this was Schedule C in Model from NCB]
Modify 3.2.7 to be in line with the broader recommendations in the Model.
[The Model Constitution suggests in 3.2.2:
For transparency clinical commissioning groups will need to publish these details for the group’s governing body whose meetings must be open to the public, except where the group considers that it would not be in the public interest to permit members of the public to attend a meeting or part of a meeting. Groups may choose to publish the agenda and certain papers of other meetings that will be held in public. See also the requirements in relation to transparency in regulation 16 of the National Health Service (Clinical Commissioning Groups) Regulations 2012 (see section 6.8 above).
Groups may wish to consider other ways of making key documentation available to patients and the public (especially those who don’t have access to the internet), which could be outlined in this constitution. Examples include:
confirming you will make this document available upon request for inspection at your headquarters or local health premises
confirming that the document is available upon application, either by
o post – in which case you will need to include the postal address of your headquarters
o email – you’ll need to provide an email address
making arrangements with your local authority(ies) for copies to be made available via local libraries ]
In particular, these papers must be published on the web site – “or made available upon request for inspection at the CCG offices: [address]” is not good enough.