A clinical commissioning
group (CCG, the new local NHS governing groups led by GPs) leading one of the most high profile
procurements in the NHS has agreed to publish
commercially sensitive documents following a threat
of legal action.
A law firm acting for
campaign group Stop the NHS Sell Off in Cambridgeshire accused
Cambridgeshire and Peterborough CCG of acting
unlawfully by failing to allow opportunities for
meaningful public engagement in the tender of a
multi-million pound contract for older people’s
services.
In a letter before action
sent on 10 December Leigh Day said the CCG had been
“preventing proper patient involvement” by refusing to
let the public see tender documents that had been
shared with bidders.
The firm argued that the
CCG was in breach of its legal obligations to engage
with the public, as set out by the 2012 Health Act.
It gave the CCG seven days
to either share the documents or put the tender on
hold - or face the prospect of judicial review
proceedings being initiated.
HSJ understands
the CCG has not conceded that it acted unlawfully.
However it has agreed to publish the documents in
question.
David Lock QC, who was
instructed by the group, but who normally advises NHS
bodies, told HSJ the case showed CCGs face
conflict between commercial confidentiality and public
engagement.
He said: “This tension
must be resolved in favour of openness because those
are clear legal obligations which have been imposed on
the CCG by Parliament.
“It is not possible to run
the NHS like Tesco’s supply chain where everything is
kept commercially confidential.”
Other lawyers working in
the NHS told HSJ it was a difficult area for
commissioners.
A partner in one leading
firm said they were caught between a “rock and a hard
place”.
They added: “There are
things commissioners can do to try and mitigate the
risk of challenges, but if there are patient groups
who may not like proposed changes then there are
likely to be difficulties, and of course the bigger
the procurement the greater the risk.”
Lawyers for the
Cambridgeshire campaign group pointed to the fact that
the value of the contract changed during the process
and bidders had pulled out, as revealed by HSJ, as evidence that decisions
had been taken about the shape of services without
public involvement.
The letter said: “It
appears to our clients that the CCG is only prepared
to engage with patients at a very high level of
generality… By the time details of the proposals are
made available to patients and the public it may be
too late for patients to influence decisions which
have already been taken.”
The firm highlighted four
areas where the CCG had not met its obligations. It
said the CCG had breached its duty to have a patient
involvement policy and a procurement strategy while
its constitution did not fully reflect the extent of
its requirements around engagement. Finally it said
the CCG had not taken into account NHS England’s
transforming participation in healthcare guidance.
At its governing body
meeting on 7 January the CCG announced plans to
refresh its communications, membership and engagement
strategy and strengthen its constitution in relation
to patient engagement.
The meeting also
considered the procurement strategy which the CCG told
HSJ was “in development” and would be
published by the end of the month.
The CCG said it had now
“reached a point in the procurement process” at which
it was able to publish more information, including a
pre-qualification questionnaire and its “prospectus”.
It said information in the documents could be redacted
if “necessary” due to commercial sensitivity.
Arnold Fertig, the CCG’s
lead on its older people’s programme, insisted the
group was “committed to openness and transparency”.
“It has provided
information on the older people’s programme and the
procurement at CCG governing body meetings, including
the publication of documents from those meetings,
through attendance at key meetings, forums and events,
on its websites, in publications, and during
engagement meetings with patient and carer groups,” he
said.
See also: Victory in Lewisham.
We can keep Weston Hospital out of the clutches of Serco &c. But we need to fight for it.
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