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
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.
3 responses to “Private NHS Providers and FOI”
The standard NHS contract says:
“All record systems whether written or computerised must have processes in place
that follow Caldicott guidelines and are compatible with Data Protection and Freedom
of Information Acts
Where a provider is not a public authority, the prover acknowledges that the commissioners are subject ot the requirements of the FOIA and shall assist and cooperate with each commissioner to enable the commissioner to comply with its disclosure obligations under the FOIa. Accordingly, the provider agrees:
That this agreement and any other recorded information held by the provider on the commissioner’s behalf for the purposes of this agreement are subject to the obligations and commitments of the commissioners under the FOIA;
That the decision on whether any exemption to the general obligations of public access to information applies to any request for information received under the FOIA is a decision solely for the commissioner to whom the request is addressed;
That where the provider receives a request for information under the FOIA, it will not respond to such a request (unless directed to do so by the relevant commissioner to whom the request is addressed) and will promptly (and in any event within 2 operation days) transfer the request to the relevant commissioner.”
Even the controversial NHS Surrey/VirginCare contract, which is the largest single healthcare outsourcing in history, says this (the contract is on the website of the PCT).
This should mean that pretty much everything VirginCare holds relating to the contract can be requested (although it is a grey area about what is held on behalf of the PCT for the purposes of the contract) and argued over with ico and tribunal help when it gets there.
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