RICHARD BOURNE argues that public bodies are not traders, and that most of their so-called business secrets should not be kept secret at all.

Campaigners against privatisation can rightly claim much credit for preventing the threats posed by the Health and Social Care Act ever being implemented. NHS England rhetoric around future NHS policy is now about removing the market and returning to policies of collaboration; no more compulsory tendering.

But some commissioners still don’t hear the message. Campaigners must continue the struggle.

Thanks to vigilance and campaigning the vast majority of NHS services do not go through any kind of tendering or procurement. Only a small percentage (perhaps 8%) of core NHS services are placed with for profit organisations by commissioners and the increasing trend since 2006 has levelled off.

However, some CCGs and commissioners of specialist services are still making plans to tender for 10 year contracts for NHS funded services.

And these figures do not include the outsourcing of support services by hospital trusts. Once again some NHS Trusts are trying to outsource services to make tax gains.

Those who campaign against outsourcing and privatisation often face a serious obstacle: we cannot get the information we need. Secrecy prevails, so we cannot show that what is said in public is simply not what was agreed in private.

The key to understanding what is planned will be in the Business Case.

Every NHS body contemplating a significant procurement must produce a business case, and that is the mechanism through which accountability is established. And the last thing most NHS bodies want is to be accountable.

Instead public bodies fully funded by us claim that in fact they are commercial bodies competing in a market and forced to protect their position by keeping everything secret, invoking “commercial confidentiality”. They refuse to provide information about what they are planning to do, and more importantly why they are planning to do it.

Typically, a campaigner or staff representative picks up that there is a plan to outsource a service or to “reconfigure” and that there will have to be a procurement and competition.

So, you ask to see the papers relating to the decision, and the Business Case used to justify it. But the request is refused, so you resort to using the Freedom of Information Act.

But that takes a lot of time.

I have two cases in mind where the decision to refuse information was fought through every step of the process … and 18 months later in each case full disclosure was ordered. There was no apology; just grudging compliance.

It was eventually obvious that the reason for withholding information was actually because the business case was so poor it would have embarrassed the organisation.

There have been attempts to persuade NHS leadership (nobody knows which organisation does what any more!) to send out very clear messages – that:

  • tendering and competition is to be avoided
  • and, if it is used then everything about the process must be open and transparent.

Part of the problem is of course the lack of funding. In many cases bringing services back into the NHS and avoiding outsourcing requires investment in the NHS to rebuild lost capacity. Sometimes the NHS cannot provide a service, so someone else comes in – but the answer is to build NHS capacity as an investment, not waste money on short term get arounds.

So for every procurement there should be a clear statement about what it would require to build NHS capacity as an option. Then some test of overall social value ought to apply, not just financial.

But this is useless unless we can all see the case being made and put our arguments forward.

Which comes back to commercial confidentiality – and lying.

Information can be withheld if disclosure would or would be likely to prejudice commercial interests. Well, for a start, public authorities are rarely trading entities and their interests are rarely commercial.

But there is a limitation placed on this anyway. That requires that “the chance of prejudice being suffered should be more than a hypothetical or remote possibility; there must be real and significant risk”.

This justification has to be spelt out objectively with facts if a request for information is declined. That is incredibly unlikely ever to be met.

In respect of the vital Business Case disclosure there is strong guidance anyway from 2008 which sets out what can and should be disclosed during a procurement. This makes clear that all vision planning and strategy documentation including the Business Case can be disclosed once the bid documentation has been issued. Basically, the public has the right to know as much as the bidders!!!

So information should be available before any decision to award a contract is made. The only things that are genuinely confidential are matters flagged as such by bidders, such as trade secrets – and even then a public interest test can overrule that desire for secrecy. Public bodies are not traders!

Yet while a few do publish the case in full on their web site – good for them – too many CCGs and Trusts routinely refuse to provide Business Cases even after contracts have been awarded.

It is time we stepped up the campaign to make sure NHS leadership who have so far been complicit in this secret and deception make sure CCGs and Trusts act openly and transparently and stop hiding behind bogus confidentiality.

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