There seems to be a renewed enthusiasm for the Freedom of Information Act (FOIA) to extend to the private sector. On the Daily Politics programme last week, Labour councillor Theo Blackwell made his case for the extension, claiming that “a complex web of private contracts” between local and central government reduces accountability. Coinciding with this call, a bill was introduced in Parliament that, if passed, would extend FOIA to NHS private contractors.
What is the Bill about?
On 8th October, Labour MP Grahame Morris introduced the Freedom of Information (Private Healthcare Companies) Bill 2013-14 to the House of Commons under the Ten Minute Rule. He said in his speech to Parliament that “private healthcare companies should not be permitted to hide behind a cloak of commercial confidentiality” and that “billions of pounds of taxpayers’ money is being awarded to private sector companies under barely transparent contracts”.
He continued: “Meanwhile, private companies are free to benefit by gaining detailed knowledge of public sector bodies through their use and submission of FOI requests. The same information is then used by the private sector to undercut or outbid the very same public sector bodies when contracts are tendered or put up for renewal.”
The purpose of the Bill is to bring about more transparency to private firms that provide public health services, and to also ensure that there is fair competition when private and public sector firms bid for NHS contracts.
The Bill is expected to have its Second Reading on 8th November 2013.
But aren’t there already contractual disclosure provisions in NHS contracts? Why the need for the Bill?
You can access information about NHS private providers through clinical commissioning groups. These groups comprise of GPs who are responsible for commissioning or buying health care services. Since commissioning groups are subject to the requirements of FOIA, a standard NHS contract may contain obligations of assistance and cooperation on the private provider to enable the commissioner to comply with its duties under FOIA. For example, according to a recent interview with Virgin Care’s head of innovation, Virgin Care does not have to comply with FOIA requests, but it does have to supply commissioners with information if they are sent one about its health services that they provide to the NHS.
But not everything is fine and dandy. Monitor, the sector regulator for health services in England, stated in its review for the Secretary of State for Health in March 2013 that despite having Freedom of Information requirements in NHS contracts with private and charitable providers, “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 effectiveness of FOIA contract clauses in general was raised on the Daily Politics programme. Damian Green, Minister for Police and Criminal Justice, was of the opinion that public sector bodies should ensure that their contracts with private providers contain these clauses. Yet when it was suggested that not all were being properly implemented, Mr Green replied rather unconstructively: “In that case, they should be.”
But who can ensure that disclosure clauses are contained in contracts with private providers? In response to the programme, Campaign for FOI tweeted that the Information Commissioner’s Office cannot enforce them.
Is it likely that the Bill will pass the Second Reading?
The Bill is certainly in for a rough ride. Last year, Mr Morris put forward an Early Day Motion, which proposed that private healthcare companies should be subject to FOIA. The motion was signed by 111 MPs, with the majority of support coming from fellow Labour MPs. Not one Conservative MP signed the motion.
The current government is unlikely to support the passing of the Bill. Commenting on the Justice Committee’s “Post-legislative scrutiny of the Freedom of Information Act 2000”, it indicated that FOIA was not going to be extended anytime soon and that the approach of ensuring that contracts contain disclosure provisions is here to stay:
“The Government expects that contractors will fully assist public authorities in meeting their current obligations under FOIA… contracts should include clear provisions in this regard, and stress that public authorities should not be reluctant in taking all necessary steps to ensure compliance.”
The government also suggested that any extension of FOIA would have a burdensome impact on businesses.
Few expect the Bill to gain enough support to pass yet the debate on whether FOIA should be extended to the private sector is unlikely to cease anytime soon.
Patients are being denied treatment for hernias, cataracts and infertility because the new GP-led groups that control £65bn of NHS funding are imposing new restrictions on access to care, research reveals.
At least 27 of the 211 clinical commissioning groups (CCGs) across England have tightened the criteria for obtaining one or more forms of hospital treatment in 2013-14, the British Medical Journal has established.
But, in all, 68 CCGs are looking again at their guidelines on when patients should receive treatment for one or more forms of illness, according to responses from freedom of information requests received from 195 CCGs. Read more
Denis Campbell | The Guardian | 10th July 2013
The corporation’s Investigations Service monitored emails sent and received by 30 members of staff last year, according to figures revealed under Freedom of Information legislation.
Four of these were staff suspected of having leaked information to people outside the organisation and three of what it described as taking part in “malicious communications”. Read more
Patrick Sawer | The Daily Telegraph | 10th July 2013
Council staff are being paid through limited companies in arrangements described as “tax avoidance” , The Daily Telegraph reports. A Freedom of Information request by the BBC Radio 4′s File on 4 programme revealed that nearly 100 highly paid positions are being filled using deals which allow public servants to make their own tax arrangements rather than use the PAYE system.
Public accounts committee chair Margaret Hodge told The BBC that the situation was a “tax avoidance scheme, which is totally wrong…I think they [HMRC] have to be more ambitious, I think they’ve got to work harder, and I think they’ve got to do better at getting that money in.”
Hackney Council had the highest number, with 39 people in permanent posts paid through external companies. The arrangements means individuals are taxed and pay national insurance at lower rates.
The Local Government Association said councils adhere to strict HMRC rules. Chairman Sir Merrick Cockell said councils had a “responsibility to employ skilled staff in a way that provided good value to residents”.
NHS reform plans changing GP priorities
NHS records revealed through a Freedom of Information request show that GPs are spending as little as one day a week seeing patients as they are busy setting up organisations for the health reforms, The Guardian and the Independent report. Figures released as part of a request made by False Economy, a trade union-backed research group, show family doctors are devoting most of their time to setting up clinical commissioning groups (CCGs), the groups of family doctors that will replace PCTs in commissioning and paying for treatments on behalf of patients from April 2013.
More women fail driving test, DSA FOI reveals
Official figures from the Driving Standards Agency indicate that women are more likely than men to fail their driving test. The figures, released under the Freedom of Information Act, show that examiners recorded 1,660,206 errors by candidates that were serious enough to mean a failed test – 718,244 by men and 941,962 by women. The report described in the Telegraph also outlines the reasons for failure and suggests that women are more likely than men to fail for errors in reverse parking and inadequate observation.
Broadmoor patients seek thousands in compensation
Six of Britain’s most notorious killers and rapists at the Broadmoor high security hospital have received £64,000 in compensation in the past five years. In total, 17 patients have sued Broadmoor since 2006, a Freedom of Information response from the West London Mental Health Trust revealed. The most recent two cases won £7,500 in compensation after hurting themselves opening windows. Speaking to The Daily Mirror reports, a spokesperson from West London NHS Trust said: “Patients are entitled to claim damages for clinical and non-clinical negligence.”
Shisha bar rise despite smoking ban
There has been a rise of 210% in shisha bars across the UK since the smoking ban was put into place, the Independent reports. Freedom of information data collected by the British Heart Foundation from 133 local authorities in large towns and cities shows there were 179 shisha bars in 2007, rising to 556 now. According to the BBC report, the World Health Organisation has advised that a 40-minute session on a waterpipe is the equivalent to the volume of smoke inhaled from at least 100 hundred cigarettes.