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NHS bill threatens freedom of information

The public’s rights to information is likely to be

The public’s rights to information about the NHS are likely to be “increasingly constricted” as a result of the NHS reforms, according to the Campaign for Freedom of Information.

Under the reforms, NHS services will be provided either by NHS bodies or by independent providers under contract. The NHS bodies which commission services will themselves be subject to the FOI Act though the independent providers will not. However, the providers will be contractually required to provide information to the commissioning bodies to help them answer FOI requests.

The standard NHS contract already contains a clause requiring providers to do this. But according to the Campaign, the clause appears to apply only to the specific information which the contract itself requires a provider to hold or report on. While numerous items of information are specified – for example, about the quality of the service, treatment times, complaints, MRSA infections and other matters - it does not cover the full range of information that would be available under FOI from an NHS body itself.

In a letter to the health secretary (pdf), Andrew Lansley, the Campaign calls on the government to extend the disclosure provision so that FOI rights in relation to independent providers’ NHS work is as wide as that of NHS bodies themselves. The Campaign director Maurice Frankel says:

“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 stocks of the product, the number of doses administered, the numbers of affected patients, the quality control measures in place, correspondence with suppliers, minutes of meetings at which the problem was discussed 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. This would represent a major loss of existing information rights.”

Under the reforms, comparative statistical data will be published about the quality of care provided both by NHS bodies and independent providers treating NHS patients. However, the Campaign says that at the outset of the new arrangements no information about an independent provider’s record will be available – as they will not yet have treated NHS patients. They may have a long track record of treating private patients, but this data will not be published.

The Campaign says these unequal disclosure requirements “may distort the competitive process” between NHS bodies and independent providers, particularly in the early stages:

“NHS bodies would be forced to disclose any poor performance, while equally poorly performing independent providers may simply appear to have a blank sheet. The principle of patient choice would also be undermined by such unequal disclosure requirements.”

The Campaign also wants any provider whose work consists mainly or solely of treating NHS patients to be made directly subject to the FOI Act in their own right. Otherwise, it says, someone wanting to know about their performance may have to make separate FOI requests to each of commissioning bodies with whom it has a contract. Each commissioning body would then have to ask the provider for the identical information about its own patients. Even that might not succeed if any one of the requests was refused, for example, on cost grounds. (FOI requests can be refused where the cost of finding the information would cost more than £450.)

Once a contract is over, an independent provider would still have to supply information to a commissioning body to help it answer FOI requests. But the Campaign says that if fails to do so the commissioning body’s only remedy would be to sue the provider for breach of contract, which it says is “most unlikely”. It wants the Information Commissioner to be given power to force a former provider to release information in these circumstances.

The FOI Act makes it a criminal offence for a public authority to deliberately destroy, alter or conceal a record in order to prevent requested information from being disclosed. The Campaign says this offence should be extended to independent providers who take similar action to block disclosure.

Katherine Gundersen is research officer at the Campaign for Freedom of Information.

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