Will private sector secrecy stop the NHS becoming more open?

The government claims it will force the NHS to be more open, ending gagging clauses and encouraging transparancy. But how many of these measures will apply to the private sector now taking over much of our healthcare?

Roger Kline
1 October 2013

Jeremy Hunt takes to the Tory party podium today. Expect earnest pledges to improve our healthcare, to make it more open and transparant. Who can be against openness? It’s at the heart of good and safe health and social care. It was central to the Francis report on the Mid Staffordshire Hospitals NHS Trust scandal, which set out the principles that should underpin healthcare:

"Every healthcare organisation and everyone working for them, or on their behalf, must be honest, open and truthful in all their dealings with patients and the public.

Organisational and personal interests must never be allowed to outweigh the duty to be honest, open and truthful.

Any statement made to a regulator or a commissioner in the course of its statutory duties or about its performance must be completely truthful and not misleading by omission."

Robert Francis’s report preceded the Health and Social Care Act coming into force, and he made clear he did not consider its possible impact.

Yet it is already clear that accelerating privatisation is reducing openness and transparency in health and social care.

Whistleblowers and gagging clauses

A crucial part of openness and transparency is the ability of staff and duty of staff to raise concerns. Staff employed on national NHS terms and conditions have a contractual “Right to raise concerns in the public interest (whistleblowing)” (Section 21.1 of the Staff handbook). But private sector employers aren’t obliged to include this contractual right.  

The government promised to clamp down on the use of ‘gagging clauses’ and severance payments to silence whistleblowers, and has published new guidance. But this does not apply to the private sector, either.

Nor does the NHS staff survey or the NHS patient survey - both crucial indicators of patient care and safety - include independent health care organisations or contractors except where they run an entire NHS Trust.

Commissioners and a duty of candour

The centrality of openness and transparency in patient safety was underlined by the Government’s 2013 Berwick Review: 

“All data on quality and safety, whether assembled by government, organisations, or professional societies, should be shared in a timely fashion with all parties who want it.” 

But as the Health Select Committee complains:

“the requirement for openness and transparency is too narrowly drawn in the NHS Standard Contract” and that “NHS England has not placed commissioners under any explicit duty of candour either to local populations or to local HealthWatch organisations.” 

The default position of the private sector is commercial secrecy. They are unlikely to be open as Berwick insisted, without a legal requirement on them and commissioners to do so.

How many nurses?

Sir Robert Francis suggested careful assessment of what numbers and skill levels of staff different parts of the NHS need as a minimum.  But the Government does not want mandatory staffing ratios or skill mix ratios. Hunt argues that healthcare providers "must have the freedom to deploy staff in ways appropriate for local conditions." 

The Select Committee suggested a compromise, where ward level deployment of nurses is measured and reported to commisioners, and complaints are published openly on websites and shared with the Care Quality Commission.

Healthcare lawyers commented that for such information to be

“shared with the CQC and posted on websites is good practice but is almost certainly not carried out fully at present. Indeed providers may be anxious that presenting such information on the website may deter patients from choosing to use their services in a competitive marketplace.”

Private sector providers are likely to lobby against such recommendations. They may well be reluctant to share information on staffing ratios, complaints or performance while under market pressures and commercial confidentiality.  

Equality and patient safety

Equality should be at the heart of healthcare provision. Patients are entitled to get the best possible staff chosen on the basis of ability not ethnicity, gender, or disability for example. There is research evidence of a correlation between race discrimination, for example, and patient outcomes. There is substantial evidence of discrimination in the NHS and it is likely to be similar in private healthcare providers. Yet the Public Sector Equality Duty, which requires large public sector employers to monitor for imbalances or hidden discrimination, does not apply to private companies.

The govenrment is now proposing that private sector health contractors should not be asked anything about how they address discrimination, before getting the contract.

Freedom of Information

The Freedom of Information Act does not apply to private sector providers.

The Health Select Committee has been trying to pin Hunt down for some time on this. In April Labour MP Grahame Morris asked him ”do you think that freedom of information requests should also apply to private sector health companies who are providers within the NHS? One of the big elements, of course, is staffing levels, and it is not possible to [get that information] with a private sector provider. Would you agree that that should be addressed and do you intend to do it?”

And Conservative MP Dr Sarah Wollaston asked: “Does this indicate that it is sometimes difficult to hold private providers to account for sticking to their contract if you cannot see the full details of the contract and the financial background to it? Do you think it is reasonable for the public to be able to see and hold these companies to account properly by seeing all the details?...What would be the argument against publishing?”

But answer came there none. Hunt talked about a level playing field - but some fields are more level than others, it seems.

This Government’s refusal to help us access information on private providers, is in sharp contrast to its enthusiasm for sharing NHS patient data with the private sector for commercial ends.

Earlier this year, the Information Commissioner refused a Freedom of Information request about the staff and dispensing of a GP practice. The Information Commissioner said that was “aware that primary care health service contracts are currently being granted to private companies...” and argued this means the “...the Practice is operating in a competitive commercial environment”. He added:

“Given the increasingly competitive market that the Practice is operating in, the Commissioner is satisfied that the disclosure of information that would allow competitors insight into the profitability of the Practice, and its dispensary, would be likely to prejudice its commercial interests and may result in the closure of the Practice.”

Removing dodgy Board directors.

In anticipation of the Francis Report, new Board members standards were published.  But these only apply to members of NHS boards and CCG governing bodies, not to non NHS organisations.

Jeremy Hunt has promised that NHS directors and board members who preside over failures will be prevented from being employed in the NHS in the future. However it is difficult to see how the government could apply such a measure to private companies. The case of Martin Yeates - disgraced former chief executive of mid Staffs who was entirely free to continue providing services under contract to the NHS - is salutary.  As Conservative MP Stephen Barclay argued:

“Accountability and transparency can only replace the norm of cover-up and silence within the NHS if the statutory duty of candour is extended to managers who are responsible for the culture which has blighted the lives of too many patients.

“In order for these sanctions to be effective, patients and their families will need reassurance that ‘positions elsewhere in the system’ includes the lucrative consultancy firms that so many failed NHS managers have moved on to after failure. How can so many of those responsible for Mid Staffs now work advising other hospitals, and will Ministers act retrospectively on this?”

The National Patient Safety Agency and incident reporting

The government has scrapped the National Patient Safety Agency whose role was "to improve the safety of NHS care by promoting a culture of reporting and learning from adverse events". And as the Health Select Committee points out:

“definitions of patient safety incidents used by the National Reporting and Learning System focus only on incidents in taxpayer-funded healthcare. The definitions should be amended to cover patient safety incidents in private healthcare and taxpayer-funded social care services.”

Penalties for falsely providing or hiding information

The Care Bill supposedly will make it a criminal offence for care providers to "knowingly supply wrong information" or "deliberately withhold information from families about serious harm or death,".

But the Health Select Committee is critical of the scope of these provisions:

“It is striking, for example, that the clauses in the Care Bill [Lords] which are intended to establish a criminal offence of providing false and misleading information—in effect criminalising a breach of the proposed statutory duty of candour—have specified neither the types of provider, nor the types of information to which the offence will apply, leaving both to be specified later in regulations.”

And Clause 81 of the Bill makes clear ‘providing misleading information to a regulator’ will only be a crime for public bodies and those who provide services under contract to them - not to those who have a contract directly with the patient, such as care homes and privately funded home care. Yet the latter are a substantial and growing proportion of such care.


Openness and transparency are cornerstones of effective and safe patient care. The concluding remarks of the Health Select Committee - chaired by Conservative Stephen Dorrell - should be a warning to us all:

“The Committee believes that a defensive and sometimes over-legalistic culture which attaches a higher priority to avoiding liability than improving outcomes represents a pervasive phenomenon which is not confined to the healthcare system. While legal accountability is important, it is even more important that legal advice based on such defensive considerations is not allowed to impede the proper relationship between clinical professional and patient, based on sound principles of professional responsibility.”

When it comes to “over legalistic cultures” the private sector is Premier League. Legal challenges on mergers, contracts, and commissioning are core business to the multinationals who wrap themselves in commercial confidentiality and whose prime accountability is ultimately to shareholders not the public.

We have opacity at the heart of the proposed measures on openness and transparency.

The track record of the private sector and the Government’s failure to provide a level playing field on data and candour inevitably risks a two tier standard for patient care and safety.

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