Public Health Module

1. Public Health Module Venue Date Making ethical decisions in commissioning Author: Andrew Harris Governance Consultant, Solicitor, former GP and Public Health Consultant andrew@adrharris.co.uk

2. 1. The Quality of the group decision 09.30 am – 09.40 am

3. Plenary Discussion Point 1 • How good is decision making in health care commissioning?

4. Why poor decision making? • Crisis management, lack of time • Lack of skills • Applying literature difficult • No systematic approach to rationing • Lack £ analysis underpins commissioning • Over- reliance on cost effectiveness • Group think 4

5. Group think • Illusion of invulnerability • Leaders are protected from contradictory evidence • Members reject information which does not fit and do not consider alternatives • Individuals with minority views discounted • Planners asked to critique them Hammond Keeney Raiffa, Harvard Business Review, 2000

6. Asch’s cards A B C Solomon Asch 1951

7. Social influences Some decision makers are influenced by a desire to • please others • avoid conflict • be seen as part of group • avoid criticism of unpopular decision

8. Plenary Discussion point 2 There was no Elgar Collaborative, nor was Harry Potter written by an Edinburgh Writers’ Network • Will a group make better decisions than one or two qualified individuals?

9. Conditions for Group Decisions • Ensure time and skills • Have relevant information – local knowledge • Ensure decision process clarifies diverse views • Independence - minimize social influences • Have systematic process for prioritising and aggregating views From Surowiecki, Wisdom of Crowds, 2004

10. 2. The process of bringing together individuals’ views 09.40 am – 10.40 am

11. Group Discussion point 3 • Why do people have different priorities? • How then does a group of individuals handle these different views?

12. Different priorities • People have different instincts, values, assumptions, knowledge, perceptions, experience… • People have different roles in their work which create priorities

13. Managing different priorities • Group needs to have own “personality” with values, assumptions, knowledge, etc • Share individual views and contribute to view of corporate personality

14. Commissioning - on what do you base a decision? To make a decision, the group should have: • Underlying values or principles • Considerations • Criteria • Relevant information

15. Plenary Discussion point 4 • Where do your underlying values and principles come from? • From where should the group get its underlying principles and values?

16. Values and principles • Initially from the family; society norms • With maturity, adopt their own • PCT • Family – Staff and leadership of [insert name of org], other organizations and communities;Society - the NHS • Will wish to adopt the norms of the NHSwhatever think of family!!

17. [name of local organization] Insert below the key values from the Commissioning Strategic Plan or mission statement . Examples of what might be found: • Person at centre • Improve health; reduce health inequalities • Improve quality and safety; leadership • Choice and Accessibility • Partnership • Local sensitivity • Visibly credible and efficient

18. [local organization subgroup] Examples of principles that may be found: • Clinical need – best possible outcome • Clinical effectiveness, appropriateness • Cost Effective – QALY, value, not cost alone • Equity – service development and precedence • Accessibility, choice, comprehensiveness • Quality and patient experience • Lawfulness

19. NHS Constitution • Key principles • Comprehensive, non discriminatory, equality • Access related to need not ability to pay • Excellence, innovation, leadership • Reflect needs of patients /families • Partnership beyond health • Best Value for Money (VFM), sustainable effective use £ • Accountable – public, patients, community • NHS Constitution 2009

20. Group Discussion point 5 • Look at various principles and consider any others • If you have any priorities, individually write down your top two Explain priorities and discuss with colleagues any differences ___________________________________________________________________ Hand out slides up to here

21. 2. The process of bringing together individuals’ views (continued): Hand out

22. Commissioning Principles • Relevance to community and health gain • Equity and access • Effectiveness and appropriateness • Responsiveness Comprehensiveness and partnership • Efficiency and affordability From Maxwell RJ and various NHS sources

23. Principles in Tension • Responsiveness to need and affordability • Clinical effectiveness and responsiveness to demand for other outcomes/ treatments • Equity of access or equity of outcome • Access and efficiency • Declining exceptional treatment and comprehensiveness

24. Commissioning - ethical decision making • How does a PCT resolve conflicts between common principles? • Can ethics help improve group decision making and resolve conflicts of interest?

25. What is ethics? • Not science – doesn’t direct conduct • Not religion – selected ethics and people • Not norms – cultures vary • Principles related to right or wrong conduct

26. Types of ethics • Individual – morality • Professional – codes of practice • Corporate – governance and policy

27. Individual Belief: • Patient autonomy • Benevolence • Preventing harm • Justice Conduct: • Honesty and integrity

28. Plenary Discussion Point 6 • In what way are ethical principles and conduct different for health professionals?

29. Professional Additional • Objectivity • Openness • Confidentiality • Integrity Conduct • Compliance with codes • Duty of care - legal

30. Group Discussion Point 7 • In what way are ethical principles or conduct different for a PCT compared with an individual?

31. PCT Different because • Org values/processes tension with individual conscience • Conflicts of interest affect many - provider/commissioner • Social justice /long term v individual/ short term • Public service context – situational ethics • Duty of leadership to influence others Conduct • Compliance with DH / Commissioning principles • Statutory duties see The Quest for Public Service Ethics, G E Kyarimpa, J-C Garcia Zamor,Public Money & Management, Jan 2006

32. NHS Constitution Values • Respect and dignity - listening • Commitment to quality – integrity, accountability, communication • Compassion, time for people • Improving lives, value excellence • Working together – put patients first • Everyone counts – some more help

33. [Local organization] Example of vision and values from a CSP • People centred • Support self responsibility for own health • Innovative and continuous improvement • Open honest communication • Diversity and non discrimination • Understanding, dignity and respect • Accountability – work, resources, environment

34. Corporate • What principles can be adopted that will assure others to trust the way the decision was taken was proper?

35. Corporate principles - Nolan • Selflessness - the public interest • Objectivity –make choices on merit • Integrity – no obligations to others • Honesty – declare and resolve conflicts of interest • Openness – Share info,give reasons for decisions • Accountability – explain,scrutiny • Leadership – promote principles by example

36. Corporate ethical approach? • If we adopt Nolan principles do we resolve the conflicts between individual views? • If we are ethical, can we say we have taken the right decision as well as taking it in the right way?

37. Ethical Approaches Utilitarian Mills Bentham Consequentialist Rule, Ends Efficient, Cost benefit, Health gain • Organisational targets • Common good - society Plato • Hierarchies and markets From Governance, Ethics and NHS, K Morrell, Public Money & Management, Jan 2006 Kantian Moral intention, Rules Comprehensive, Equity, Clinical Effect Professional duty of care Inflexible – John Rawls Hierarchies not markets Rights Ethics of care UN Individual in community Autonomy, Responsiveness Duties to known - clinicians Partnerships and networks Not hierarchies or markets VirtueAristotle Moderate conduct Nolan principles Keep core values Procedural Context and impact – ? Equity Flexibility, No Consistency

38. Application of ethics • Nolan - template of conduct of corporate personality - avoid social influences and conflicts of interest • Also need ethical framework to surface perceptions • Is any one ethical stance best? e.g. legal duty – “right” • Ethics training facilitates harmonising individual and corporate values • Best way to uphold ethics is if organisation norms, rules, standards are incorporated in individual ethics Half Full or Half Empty? British Public Sector Ethics, A Doig, Public Money & Management, Jan 2006 Achieving the Ethical Workplace The Ethics Edge, E Berman (Ed) S Bonczek ICMA, Washington 1998

39. 3. The process of deciding – legal decision making 10.40 am – 10.50 am

40. Legal decisions • When does the law make a principle greater priority? • Are all legal decisions ethical? • Can we be found to have acted illegally but ethically?

41. Legality of decisions • Statutory duties • Public law Process > merits • Human Rights – ECHR Proportionality in context

42. Statutory Duties • 1946 Provision – delegated (2002)“all reasonable requirements”, without charge • 1998 Quality (2003) • 1999 Break even, Partnership • 2004 Procurement (EU) • 2006 Involve patients, Equality£ allocation and resource use limits • 2009 Innovate? The role of PCT board in world class commissioning DH Nov 08 42

43. Rights in NHS Constitution • 24 – many not new rights; probably expanded JR • Services to meet locally assessed need • Treatment in EC countries in certain circs • No age discrimination in services (Eq Act) • Required levels of safety in registered orgs • Monitor /improve quality (SDQ) + commissioning • NICE TAs; decisions on drugs rational and proper consideration of evidence

44. Judicial Review • Illegality – beyond powers – irrelevant considerations – fettering discretion • Irrationality/ Unreasonableness – judicial deference • Procedural Propriety – fair, info to applicant 44

45. European Convention of Human Rights(ECHR) law Human Rights Act (HRA) 1998 • Awareness of ECHR by staff • A 2 – Life • A 3 – Dignity • A 8 – Family life and correspondence • A14 – Equality – no blanket ban 45

46. Proportionality • European Commission and ECHR law - replaces irrationality • Interference with Rights v legitimate aim - damage to individual v gains from interference - no less restrictive intervention • Qualified Rights- A8 Family life:balance individual need with community interests 46

47. Law and decisions • Law informs whether decision making process was right • Some laws or decisions might be challenged on ethical grounds - ECHR • Different decisions on funding or commissioning might both be legally sound decisions in different contexts or using different processes • Need a framework to ensure legal and ethical process and balance conflicts

48. Law and Accountability Corporate legal and £ accountability Ethics play each time any group decides Always individual professional accountability Many networks and partnerships – clarify characteristics, GBO 48

49. Coffee 10.50 am – 11.10 am

50. 4. Balancing stakeholders 11.10 am – 12.10 pm ADR Harris Ltdandrew@adrharris.co.uk