ah/hk@2010 adr harris ltd public health module making ethical decisions in commissioning author:...

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

mailto:[email protected]

ADR Harris LtdAH/HK@2010

1. The Quality of the group decision

09.30 am – 09.40 am


Plenary Discussion Point 1

How good is decision making in health care commissioning?


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

OptionButton1


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


Asch’s cards

Solomon Asch 1951

A B C


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


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?


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


2. The process of bringing together individuals’ views

09.40 am – 10.40 am


Group Discussion point 3

Why do people have different priorities?

How then does a group of individuals handle these different views?


Different priorities

• People have different instincts, values, assumptions, knowledge, perceptions, experience…

• People have different roles in their work which create priorities


Managing different priorities

• Group needs to have own “personality” with values, assumptions, knowledge, etc

• Share individual views and contribute to view of corporate personality


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


Plenary Discussion point 4

Where do your underlying values and principles come from?

From where should the group get its underlying principles and values?


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!!


[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


[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


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


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


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

Hand out


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


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


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?


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


Types of ethics

• Individual – morality• Professional – codes of practice• Corporate – governance and policy


Individual

Belief:• Patient autonomy• Benevolence• Preventing harm• Justice

Conduct:• Honesty and integrity


Plenary Discussion Point 6

In what way are ethical principles and conduct different for health professionals?


Professional

Additional• Objectivity• Openness• Confidentiality• Integrity

Conduct• Compliance with codes• Duty of care - legal


Group Discussion Point 7

In what way are ethical principles or conduct different for a PCT compared with an individual?


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


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


[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


Corporate

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


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


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?


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


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


3. The process of deciding – legal decision making

10.40 am – 10.50 am


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?


Legality of decisions

• Statutory duties• Public law

Process > merits• Human Rights – ECHR

Proportionality in context


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


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


Judicial Review

• Illegality – beyond powers

– irrelevant considerations

– fettering discretion

• Irrationality/ Unreasonableness – judicial deference

• Procedural Propriety – fair, info to applicant


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


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


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


Coffee

10.50 am – 11.10 am


4. Balancing stakeholders

11.10 am – 12.10 pm

ADR Harris Ltd [email protected]


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


[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


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


[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


[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


Session 5

Hand out


5. An ethical decision making framework for commissioning

12.10 pm – 12.20 pm


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



To make a decision, the organisation or network should have: 1. Underlying values or principles2. Considerations3. Criteria4. Relevant information


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


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


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



To make a decision, the PCT should have:


2. Considerations

3. Criteria



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


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





2. Considerations

3. Criteria



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





2. Considerations

3. Criteria



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


Decision making framework

• Values and principles– Ethics and Nolan– Law– Commissioning principles

• Considerations• Criteria• Relevant information


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


End

Evaluation

+

Hand out slides


Participant Evaluation

• Lilac = What did you learn?

• Yellow= What worked well for you in the workshop

• Blue = Is there anything you would do differently, if so, what and how?

• Green = What are your future needs?

ah/hk@2010 adr harris ltd public health module making ethical decisions in commissioning author:...

Documents

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priorities slide

abcabc slide

group discussion

group of individuals

group decisions

different priorities

relevant information