Private NHS Providers and FOI

Monitor have recommended that FOI requirements should apply to private providers of NHS services. I’m not sure we should be too optimistic that much will ensue.

Regardless of one’s views of the Health and Social Care Act 2012* it is important that, if “any willing provider” can be commissioned to provide private health services, there should be parity of treatment. And, indeed, the need to ensure a “Fair Playing Field” was, at least ostensibly, what led the Secretary of State for Health to ask Monitor (“the sector regulator of NHS-funded health care services”) to conduct

an independent review of matters that may be affecting the ability of different providers of NHS services to participate fully in improving patient care

That review has now finished, and was laid before Parliament by the Secretary of State yesterday.

My specific interest is in the section regarding transparency. Monitor note that

Historically, public providers have faced higher levels of scrutiny than other providers, including requests for information under the Freedom of Information Act. This degree of scrutiny can improve accountability to patients and promote good practice. Freedom of Information requirements have been extended through the standard NHS contract to private and charitable providers. However, it is not clear that this is operating effectively as yet, and other aspects of transparency do not apply across all types of provider

Accordingly

The Government and commissioners should ensure that transparency, including Freedom of Information requirements, is implemented across all types of provider of NHS services on a consistent basis

This could be read as a recommendation that the Freedom of Information Act 2000 (FOIA) be extended to all (including private) providers.

However, I am not sure we should be too optimistic that the recommendation will be read in this way by the Department of Health. The Justice Committee, in its recent post-legislative scrutiny of FOIA, was unconvinced that FOIA needed to be extended to private providers of public services, feeling that the use of contractual terms to ensure transparency was sufficient:

The evidence we have received suggests that the use of contractual terms to protect the right to access information is currently working relatively well…We believe that contracts provide a more practical basis for applying FOI to outsourced services than [extending FOIA to those private providers]

and rather unsurprisingly the government, in its response to the Justice Committee, agreed

 The Government therefore does not intend, at this time, to legislate to extend FOIA obligations to contractors.

 Given this, I suspect that, rather than taking up Monitor’s recommendation and extending FOIA to private healthcare providers, the government will merely reiterate the point about the use of contractual terms to promote transparency aims.

However, even if FOIA is not to be explicitly extended to include private contractual providers, there is a potential way forward which would achieve those transparency aims in a clearer and more enforceable way. This is the proposal by the Campaign for Freedom of Information, who observed (in light of the post-legislative scrutiny reports)

We don’t believe that relying on every authority to insert an appropriate clause into every contract one at a time is likely to be effective. The FOI Act itself should state that all such contracts are deemed to include a wide disclosure requirement, automatically bringing information about the contractor’s performance and the way the contractor goes about it within the Act’s scope

This seems eminently sensible. I wish eminently sensible things would happen more often than they do.

*I happen to think it’s an example of an ideologically-driven privatisation of public services which we will look back on in decades to come as a drastic mistake.