AH/HK@2010 ADR Harris Ltd
Public Health Module
Making ethical decisions in commissioning
Author: Andrew HarrisGovernance Consultant, Solicitor, former GP and Public Health [email protected]
VenueDate
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Plenary Discussion Point 1
How good is decision making in health care commissioning?
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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
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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
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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
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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?
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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
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Group Discussion point 3
Why do people have different priorities?
How then does a group of individuals handle these different views?
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Different priorities
• People have different instincts, values, assumptions, knowledge, perceptions, experience…
• People have different roles in their work which create priorities
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Managing different priorities
• Group needs to have own “personality” with values, assumptions, knowledge, etc
• Share individual views and contribute to view of corporate personality
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Commissioning - on what do you base a decision?
To make a decision, the group should have:
1. Underlying values or principles
2. Considerations
3. Criteria
4. Relevant information
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Plenary Discussion point 4
Where do your underlying values and principles come from?
From where should the group get its underlying principles and values?
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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!!
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[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
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[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
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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
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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
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2. The process of bringing together individuals’ views (continued):
Hand out
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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
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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
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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?
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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
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Types of ethics
• Individual – morality• Professional – codes of practice• Corporate – governance and policy
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Individual
Belief:• Patient autonomy• Benevolence• Preventing harm• Justice
Conduct:• Honesty and integrity
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Plenary Discussion Point 6
In what way are ethical principles and conduct different for health professionals?
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Professional
Additional• Objectivity• Openness• Confidentiality• Integrity
Conduct• Compliance with codes• Duty of care - legal
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Group Discussion Point 7
In what way are ethical principles or conduct different for a PCT compared with an individual?
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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
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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
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[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
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Corporate
• What principles can be adopted that will assure others to trust the way the decision was taken was proper?
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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
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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?
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From Governance, Ethics and NHS, K Morrell, Public Money & Management, Jan 2006
Ethical Approaches
Utilitarian Mills Bentham
Consequentialist Rule, EndsEfficient, Cost benefit, Health gain
• Organisational targets• Common good - society Plato
• Hierarchies and markets
KantianMoral 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
Virtue Aristotle Moderate conduct
Nolan principles • Keep core values Procedural
• Context and impact – ? Equity• Flexibility, No Consistency
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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
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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?
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Legality of decisions
• Statutory duties• Public law
Process > merits• Human Rights – ECHR
Proportionality in context
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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
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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
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Judicial Review
• Illegality – beyond powers
– irrelevant considerations
– fettering discretion
• Irrationality/ Unreasonableness – judicial deference
• Procedural Propriety – fair, info to applicant
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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
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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
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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
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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
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4. Balancing stakeholders
11.10 am – 12.10 pm
ADR Harris Ltd [email protected]
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Stakeholder theory
• More than investors, employees, suppliers, customers• Legal duties bring moral duties - Rawls fairness• Stakeholders – helpers eg communities or hold power• Stakeholder communication is good for org
– better able to assess goals – easier to take advantage of unforeseen opportunities – enables aversion of conflict before critical stage
• Balance voice in decision making according to contribution, relevance
Strategic Management: A Stakeholder Approach, R Edward Freeman,1984Stakeholder Theory and Organizational Ethics, Robert Phillips, 2003
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[Group Exercise]
Preparation• Read scenario application for funding and cases of
the stakeholders• Think what considerations are necessary to apply
the principles• Consider stakeholder views and how they should
be weighted
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Stakeholders
Case Manager for PatientAutonomy, Responsiveness,
Comprehensiveness
• Clinical benefit, patient view• Consistency/ procedure• Human rights
Case for Science Beneficence, Malfeasence,
Effectiveness
• clinical and cost effectiveness• seeking normative opinions• capacity to benefit
Case for Community Health Gain
Justice, Equity, Relevance• Apply commissioning priorities• Impact on other services, groups
Case for £Efficiency, Affordability
• Impact on PCT resources• Cost of meeting similar need• VFM alternative providers
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[Small group discussions]
What considerations are necessary to address the agreed ethical principles, legal duties and commissioning principles?
Seek clarification / info from stakeholders
Using principles and stakeholders, and Nolan principles for the way the group behaves, begin decision making process
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[Feedback]
Each group to report back on what tensions in the decision making process and what approach to resolution
Stakeholders to make brief comment
________________________________________Second Handout of slides up to here
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5. An ethical decision making framework for commissioning
12.10 pm – 12.20 pm
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Frameworks
• Process of bringing together all needed to make good decision - governance
• Many PCTs follow the Harris Framework: PCT Decision Making in Priorities Panels: a Review of the literature and management of decision making processes in resource allocation for commissioning treatments; Recommendations for PCTs and SHAs, October 2006; [email protected]
• Openness, Efficiency, Fairness, JR proof
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Commissioning - on what do you base a decision?
To make a decision, the organisation or network should have: 1. Underlying values or principles2. Considerations3. Criteria4. Relevant information
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Ethics
Honour as far as possible ethical principles and ensure awareness of them and an appropriate balance between them in structure and governance of the organisation:
•Patient autonomy•Beneficence•Non malfeasance•Justice
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Law
Recognise main legal duties of public bodies to ensure that thedecisions withstand JR: • Meeting statutory duties• Legality (acting within powers)• Reasonableness• Proportionality• Procedural Propriety• Equality/non discrimination
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Commissioning principles
Adopt principles for resource allocation decisions and ensure
appropriate balance between them in decision-making:
• Relevance to community and Health gain• Equity and Access• Effectiveness and Appropriateness• Responsiveness, Comprehensiveness and Partnership• Efficiency and Affordability
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Commissioning - on what do you base a decision?
To make a decision, the PCT should have:
1. Underlying values or principles
2. Considerations
3. Criteria
4. Relevant information
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Considerations - 1
• Legality of funding decision
• Clinical needs of patient/group of patients - clinician’s and normative view
• Evidence of clinical effectiveness
• Whether needs can be met by alternative means
• Cost effectiveness, balance of risk and benefits, capacity to benefit, clinical governance requirements
• Impact of provision of treatment on PCT resources
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Considerations - 2
• Consistency: impact of providing similar treatment to other PCT residents with similar needs
• Impact of funding decision on health of population
• Impact on other services for which £ is not then available
• Patient views
• Potential human rights considerations and proportionality
• Procedural propriety, transparency and probity
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Commissioning - on what do you base a decision?
To make a decision, the PCT should have:
1. Underlying values or principles
2. Considerations
3. Criteria
4. Relevant information
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Criteria
Priority setting policy assisted by adopting criteria. Choice of each PCT, e.g.:
• Weighting or tending to exclude an application e.g. incremental cost effectiveness thresholds
• Prior categorisation into low or high priority commissioning lists • Approval/non approval – Network or DTC
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Commissioning - on what do you base a decision?
To make a decision, the PCT should have:
1. Underlying values or principles
2. Considerations
3. Criteria
4. Relevant information
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Relevant information
Info needed (?application form) e.g.:
Consistency: Precedence previous £ applications,freq of illness, cost of funding all group, exceptional circs
Human rights: ?interfere with Human Rights; ? fundamental ?alternative, ?justified, proportionality: harm v benefit
Procedural: patient informed of choices, communication; opportunity to make case; relevant considerations; declare of conflicts of interest; records of discussions
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Decision making framework
• Values and principles– Ethics and Nolan– Law– Commissioning principles
• Considerations• Criteria• Relevant information
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Audit of Decision Making
Accountability for Reasonableness
• Rationale uses reasons and principles relevant to those seeking mutually justifiable solution
• Decisions and rationale publicly accessible• Mechanism for dispute resolution• Formal regulation of process• Effective opportunity for all stakeholders to independently
submit relevant considerations
Accountability for reasonableness: an update, N Daniels, JE Sabin, BMJ 2008: 337, 1850