The public’s rights to NHS information could be significantly restricted by the NHS reforms. Under the proposals, NHS services will be commissioned either from independent providers or NHS bodies. The commissioning bodies themselves will be subject to the Freedom of Information Act but the independent providers will not. However, they will be contractually required to help the commissioning bodies answer FOI requests. On the face of it that looks like a plausible solution. On closer examination real problems emerge.
The standard contract used by the Department of Health already contains such a disclosure provision. It applies to information which the provider holds on the commissioning body’s “behalf” for “the purposes of” the contract.
But what information is held on the commissioning body’s behalf – as opposed to that kept for the provider’s own purposes? The only safe answer is that it covers information which the contract itself requires the provider to hold.
The standard contract specifies that a range of statistics and reports must be held. These include details of the numbers of patients treated, the time taken to treat them, the outcomes measured against detailed quality criteria and reports on equality, complaints, carbon reduction and other matters. Additional requirements can be added depending on the particular contract. This information would be covered by the disclosure requirement.
But anything not specifically listed in the contract is unlikely to be covered. For example, the standard contract requires the provider to ensure that their premises are clean. But it does not require records to demonstrate this. The provider is likely to argue that its records, if it has any, are held for its own purposes — to check cleaning staff are doing what they’re paid to — and not on behalf of the commissioning body. Such information would not be accessible under FOI.
Suppose there is concern about the use of potentially contaminated medical supplies by hospitals. For an NHS hospital, the FOI Act could be used to obtain details of product stocks, the number of doses administered, the numbers of affected patients, the quality control measures in place, correspondence with suppliers, minutes of meetings discussing the problem and information showing what measures were considered, what action was taken, how promptly and with what results. This level of information would clearly not be available in relation to independent providers treating NHS patients, a major loss of information.
As independent providers increasingly take over responsibilities from NHS bodies the existing broad FOI right will be replaced by narrower duties to provide specified information only. The right to enquire in depth into new issues as they arise may disappear altogether.
That’s not the only problem. Some providers may end up doing nothing but NHS work. Indeed, health companies may set up dedicated subsidiaries for this purpose. Yet FOI requests could still not be made directly to the provider. Instead, a separate request would have to be made to each commissioning body using the provider. Each would then have to separately ask the provider for the statistics about its patients. If any one of these requests could be refused, for example on cost grounds, the exercise might fail. The obvious solution would be to make such bodies directly subject to the FOI Act in their own right.
Next, what happens once the contract is over? The standard Department of Health contract helpfully provides that the obligation to help answer FOI requests would still continue. But if a former provider failed to co-operate, the only way of compelling disclosure would be for the commissioning body to sue for breach of contract. The cost and inconvenience make that most unlikely.
What if a provider deliberately destroys a requested record to prevent its disclosure? If a public authority does this it commits an offence under the FOI Act. But no offence is committed if a contractor does the shredding. The public’s rights in relation to a provider will simply not match those applying to NHS bodies.
Finally, the new arrangements will involve independent providers and NHS bodies competing with each other for NHS contracts. To improve standards, the government is proposing to require all providers to publish comparable statistics about their NHS performance. But at the beginning of the arrangements, an independent provider will have no NHS track record to report on. Even when the system has been running for a while, data showing how often rare events or those which arise only after some years (such as implant failures) may not be available in sufficient numbers. This data may exist in relation to the provider’s private patients, but they will not be accessible.
This data will, however, be available for an NHS body, under the FOI Act. A poorly performing NHS body would have to reveal its weak track record, whereas an equally substandard independent body would appear to have a blank sheet. This may distort the competitive process. It may also undermine the scope for patient choice, said to be at the heart of the reforms.
For further details see the Campaign for Freedom of Information’s letter to Andrew Lansley.