New Clause 7 - Transparency of decision-making by NHS bodies

Health and Care Bill – in a Public Bill Committee at 10:45 am on 27th October 2021.

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“(1) All meetings of NHS bodies must be held in public and reasonable provision must be made for access to meetings other than by physical attendance.

(2) All—

(a) agendas; and

(b) other papers

to be considered at meetings of NHS bodies must be published at least 10 days before the date of the meeting.

(3) For the purposes of this section an NHS body is—

(a) NHS England;

(b) an Integrated Care Board;

(c) an NHS Trust;

(d) an NHS Foundation Trust; and

(e) a Special Health Authority.

(4) An NHS body may, by resolution, exclude the public from the whole or part of a meeting if it considers that publicity would be prejudicial to the public interest because confidential business is to be transacted at the meeting or for other reasons stated in the resolution.

(5) A resolution to exclude the public from a meeting under subsection (4) must be published at least five days before the date of the meeting and must explain—

(a) what is covered by the resolution; and the reason publication is not in the public interest.

(6) Any responses from the public to the publication of the resolution under subsection (5) must be considered in public at the meeting.

(7) All major decisions taken by an NHS body must be based on—

(a) a business case prepared to the standards required by HM Treasury and published at least one month before the decision is to be considered;

(b) a Stage Gate Review or similar external independent assurance review, the summary of which must be published at least one month before the decision is to be considered; and

(c) consideration of any responses from the public, patients or staff representatives to the business case.

(8) For the purposes of subsection (7) neither the business case nor any part of it nor any record of the consideration of the case by the NHS body may be considered to be commercially confidential under the Freedom of Information Act 2000.

(9) For the purposes of subsection (7) a ‘major decision’ includes, but is not restricted to, any proposal for—

(a) capital expenditure in excess of £5m; the award of any contract with a value in excess of £1m to any organisation that is not an NHS Trust or NHS Foundation Trust; and

(b) any change in the organisation of the provision of services that will involve or may involve—

(i) more than 10 staff; or

(ii) more than 10 patients or service users.

(10) NHS England may publish guidance on the consideration of major decisions under subsections (7) to (9).” —

This new clause requires all NHS organisations to hold meetings and make decisions in an open and transparent manner and allows the public and patients to express views on important proposals.

Brought up, and read the First time.

Photo of Karin Smyth Karin Smyth Labour, Bristol South

I beg to move, That the clause be read a Second time.

It is a pleasure to serve under your chairmanship, Mrs Murray. I think I tabled these new clauses back in August; recalling my brain to that time, summer seems like a long time ago now.

New clause 7 may seem self-evident, and I think the Minister may respond, “Yes, we are happy for them to do this, and parts of this have been included in the Bill.” I will not seek to press the clause to a vote, but I had a short conversation with the Minister to indicate that this is really good practice and that we need some assurance that the NHS will abide by the Government’s rules. That is all I seek to do with this new clause. It is self-evident that papers should be published in advance and made available to people, and that due process should be followed, but we all know that that often does not happen. Sometimes there are emergency reasons for that, but in my experience, it rarely needs to happen at the last minute.

The very welcome removal of section 75 of the National Health Service Act 2006 and of the need to put things out for competition, as we have discussed, means that the rationale—mostly quite spurious, in my experience—of commercial confidence to explain late papers, and to explain not involving the public or having meetings in public and so on, should be banished from the lexicon of the NHS and of all public bodies.

When I was a board member in the early noughties, I served under an excellent chair in Mr Arthur Keefe, who had been a director of social services in a hung authority. He would always challenge the chief executive to tell us exactly what the rationale was for not making everything public. There was a creeping sense throughout the ’90s and the noughties, under both Conservative and Labour Governments, that the threshold for keeping things in commercial confidence and in private sections of papers was brought really quite low. Our good chair, who had experience of local government, put that question much more firmly and placed a much higher bar for allowing a taxpayer-funded public authority to have private meetings and resolutions.

The first part of the new clause should reiterate good practice. As I have said, the removal of competition should cover all but the most extreme in-confidence decisions. We discussed only yesterday coroners’ courts, extreme cases of complaints, deaths and the safe space issue. Clearly, in some trusts, some matters will pass that threshold, but the bar should be really high.

The second part of the new clause, of which all hon. Members need to be aware, is slightly technical and relates to major projects. My interest in that matter is motivated by my experiences as a board member, but also as a Member of Parliament who wants to understand and get to grips with why local health services and re-procured services have gone out to competition, and what the fundamental business case for those decisions has been. I do not think those decisions have passed the basic tests that the Government set themselves. I think we would all agree that good management and control of programmes and projects, particularly large capital buildings, needs to demonstrate value for taxpayers’ money.

The Infrastructure and Projects Authority gate review process is designed to provide a realistic view a programme or project’s ability to deliver agreed outcomes on time, cost, benefits and quality. I am sure the Committee is aware that the IPA is part of the Cabinet Office. I am seeking only to ensure that the Government, through the Department of Health and Social Care, abide by their own Cabinet Office and Treasury rules. It might seem a slightly odd proposal from an Opposition Back-Bench MP, but I am sure it is one that nobody will disagree with.

Since 2010, the NHS seems not to have been following all the gateway processes in the way that it should. Some major projects have gone ahead without a proper five-case business case and a proper assurance framework. As far as I can see, no studies have been done on that or on the cost of badly managed projects against any claimed savings or reduced bureaucracy. The NHS sometimes seems to be one of the few outposts of the public sector that can get away with skirting around the Treasury’s rules.

As the Government talk about and invest more in new capital projects—regardless of whether we believe in the 40 new hospitals, or how we define a hospital, there are capital projects that will happen at some stage—then we must be clear on the business case for those projects at the outset, on the benefits that they are designed to deliver and on understanding them. I would support the Government’s own process for doing that, and I think that the Department needs to ensure that the health service abides by its own processes, particularly by those Treasury rules, so that we understand what the benefits are, that the rigour of those passing through those processes into the health service is absolutely endemic, and crucially, that people are trained on how to do that.

One reason why the NHS is not as rigorous as it should be is that the people required to produce such business cases and assess them are highly skilled and qualified people. They are expensive, and are not frontline clinicians. It is easy for politicians of all hues to suddenly decide that they want to quickly slash management budgets, and those are some of the people and processes that are quick to go. Ultimately—I would argue, but we cannot prove this, because we do not have any evidence by which to do that—that is a short-sighted approach, resulting in many costly mistakes that our colleagues in the Public Accounts Committee and other bodies in this place are often left looking at.

There are good reasons why, without singing their praises even more, the Government’s and the project authority’s view on major projects generally—in trying to get better processes and better value for money—is frankly a good thing. A key part of those processes is involving local people in understanding the scope of the project and its benefits.

That brings me back to some of the themes I have been trying to pursue in this Bill. If we are asking local people to pay, and are promising them something, then they should be involved, at a very early stage, in what that looks like. If the new hospital is not going to be what we might all think of as a new hospital—if it is a new wing or an urgent care centre instead of an accident and emergency centre, or whatever—then involve people very early on in that discussion. Take them with you. That is, surely, a much better way for the Government to persuade people that we do need upgrades for our estates, particularly, but also for other projects, and that sometimes compromises have to be made—sometimes the promised building might not be the one we get—but that there are reasons and rationales for that. All of that is involved in the scoping, costing and benefits-realisation process of a well-managed project.

For us, as Members of Parliament acting on behalf of our constituents, I am sure I am not the only person in this room who has felt like I am bashing my head against a brick wall in trying to understand when, where and how a promised local service will come forward and to understand the clear processes, which should all be public, even for a re-procurement or a new building. Whatever the project is, it should be totally transparent to the general public, but also for us, as Members of Parliament, to understand what that is. The gate process allows one to do that.

The Minister earlier indicated that we could talk about some parts of this. Really, his comment should be “Yes, the NHS should abide by the Government and Treasury’s own rules,” so it should be fairly straightforward, but it does not happen. If the Government are serious about embarking on improvements in the next few years, then they need to get that rigour back, support the NHS, get the skilled people there to deliver it and work with the Cabinet Office and the Treasury to do that properly and quickly, particularly on the estates, which are crumbling. We have these severe backlogs; it is a terrible use of taxpayer money. I await the Minister’s response, but very much hope that this could be taken as good practice and encouragement for the future.

Photo of Justin Madders Justin Madders Shadow Minister (Health and Social Care) 11:00 am, 27th October 2021

It is a pleasure to follow my hon. Friend the Member for Bristol South, who said what should not really need saying, but still needed to be said, because being open and transparent is the highest form of accountability. Given the history of the NHS as the archetypal public service, one would expect it to be the model of openness and transparency. Maybe it was at one point, but we are a long way from that now. In a public service on the scale of the NHS one would expect the sharing of best practice to be the norm and openness to be the standard. Unfortunately we know that it is not, and one has to ask what it is people want to hide from others.

We know of classic examples of how a secretive approach has made matters far worse than they were. The various inquiries have shown that these methods have not only prevented things from being released, but have actively protected colleagues, units and even trusts from what might, at the very least, be considered reputational damage. Many have said that the best disinfectant is sunlight—or words to that effect—and the best governance comes when things are open and transparent. The best checks and balances are only possible if all information is shared properly.

I will quote from the code of conduct for NHS boards, agreed two decades ago between the NHS Appointments Commission and the Department of Health. I believe it is as valuable today as it was then. It says,

“Health needs and patterns of provision of health care do not stand still. There should be a willingness to be open with the public, patients and with staff as the need for change emerges. It is a requirement that major changes are consulted upon before decisions are reached. Information supporting those decisions should be made available, in a way that is understandable, and positive responses should be given to reasonable requests for information and in accordance with the Freedom of Information Act 2000.”

I think we all understand what that seeks to achieve: be open and transparent, listen and engage. History suggests that this has been applied patchily at best.

One of the inevitable consequences of the shift to a belief in the markets was the idea that bits of the NHS were only semi-attached to the greater body and had their own paths to travel and own priorities. Some of these bodies were expected to behave like businesses and were given the illusion of having a bottom line or a surplus. They were told that their incomes depended on how many customers they had through their doors and that they would win more through competition with other providers in a quasi-market. That led them to become more insular, self-serving and closed. Why would they want to share information with their competitors? That may sound a little extreme, but there are plenty of examples of that kind of behaviour, which tips over into, essentially, reputational management—being seen to be good and one of the best, but actually covering up some of the worst.

Openness and transparency have been eroded as a result. We saw in the Francis report a renewed focus on openness and transparency, which was meant to lead to better patient outcomes—in theory, at least. The renewed interest in openness gave rise to this statement from the report:

“It is a basic and just expectation of the public that organisations are open, honest and transparent about their performance standards, about the rights of patients and about what happened, and why, if things go wrong. This is the only way to begin to restore full public trust in the NHS.”

Sadly, that was not the end of the matter.

The Lansley Act—the Health and Social Care Act 2012—pushed, I am afraid, many trusts in the opposite direction. Despite the Francis report and talk of duties of candour, we still have horrific reports of failures within the NHS. Those failures often illustrate a refusal to be open and honest, showing a scant regard for whistleblowers and a culture of denial and refusal to accept the challenges. In part, this is another remnant of the Lansley Act. Once the emphasis is on competition, reputation management and business-like behaviours and away from public services, we begin to lose openness and transparency.

Let us go back to the key principles of the NHS as a public service that is accountable to us all, as public services should be. NHS business should be conducted in a way that is socially responsible. The NHS is one of the largest employers in many communities, and it should be forging an open, positive relationship with local communities, working with staff, partners and stakeholders to set out a vision for the organisation in line with the expectations of their communities, patients and the public. None of that can be done in secret, behind closed doors. NHS organisations should not only discuss but demonstrate to the public that they are concerned about and determined to deal with the wider health of the population, including how it relates to the organisations’ own impact on the local economy, the local environment and so on. They should reflect the values of engagement, which should be at the forefront of all decision making, and transparency, which should be there in all dealings.

New clause 7 sets some valuable benchmarks for enforcing the kind of regime we need to deliver those ambitions. The Minister will no doubt tell us that it is unnecessary—[Interruption.] The Minister is chuckling, so we may be able to anticipate what he will say. Experience shows that the matter needs to be looked at. What is there to lose by making it a defined requirement to publish papers and meet publicly? If there is an exception—as my hon. Friend the Member for Bristol South said, there will be exceptions—at least put an onus on people to explain why, with a chance for that to be challenged. That should be a minimum for every public service, and it should apply equally to the NHS.

If that is the settled position for routine actions, it should also apply to the challenges of how major changes are dealt with. We know from countless examples that at least some major NHS bodies decide in advance and then consult on the consequence of the answer they have predetermined. Those most usually impacted are patients, and although there is some nominal right to consult them and staff, both those groups are often left in the dark until decisions have already been taken. There is a need to put beyond doubt the reasons why a major decision is required and how that decision is taken in a way that can be shared with the public—not every change of a lightbulb, clearly, but decisions that have a significant impact. The best trusts already do that, but we must ensure that it applies across the board.

As my hon. Friend said, a lot of major projects are coming through the pipeline, although we could have a long debate about exactly how many new hospitals we are talking about—I challenge the Minister to go into the Dog and Duck and explain his VAT reference to the customers. It is important that all those projects, whatever they amount to, are done in an open and transparent way. Business cases need to be published; as my hon. Friend said, there has been too much hiding behind commercial confidentiality, which we will come back under another new clause later. That has been a get-out on far too many occasions. The Minister has experience in local government, as does my hon. Friend the Member for Nottingham North, where the culture is the other way round: papers are published in all circumstances unless there is a good reason not to. That is the kind of culture that we need to instil in the NHS, as set out in the new clause, and we need to ensure that it is applied consistently.

We have a problem with the accountability of ICBs, as we have discussed. We will not be able to change all of that in this Bill, but the new clause will be a good start.

Photo of Edward Argar Edward Argar Minister of State (Department of Health and Social Care)

I am grateful to the hon. Member for Bristol South for tabling this new clause. Much of what we discussed in relation to amendment 34 is relevant here as well. She says she seeks to be helpful by tabling the new clause. I take it in that spirit and will seek to respond in that spirit, although we may not agree on our conclusions.

As I said when we debated amendment 34, we agree with the shadow Minister, the hon. Member for Ellesmere Port and Neston, and the hon. Lady that it is right that ICBs involve the public in their decisions in a transparent way. That also holds true for NHS England, NHS provider organisations and special health authorities. The new clause would require NHS trusts, foundations trusts, proposed ICBs, NHS England and special health authorities to hold their meetings in public except if it would be prejudicial to the public interest to do so. It would also require those bodies, when making major decisions—defined by thresholds of cost or impact on patients or staff—to do so having produced a business case, undertaken a stage gate review or similar external assessment, and considered comments from the public, patients or staff representatives. The comments, business case and review could not be considered commercially confidential under the FOI Act.

As I mentioned when discussing amendment 34, much of that is already the case. First, the Public Bodies (Admission to Meetings) Act 1960 places a similar and analogous set of requirements to involve the public in meetings as the new clause. NHS England and NHS trusts are already included in the schedule to the 1960 Act, so are subject to the requirements of that Act. Schedule 4 to the Bill provides for integrated care boards to be added to the schedule to the 1960 Act as well, thereby bringing their activities within its competence.

The position of special health authorities is that where the regulations establishing them provide as such, they are to be subject to the requirements of the 1960 Act. That gives the flexibility to include them as appropriate. For example, NHS Blood and Transplant and the NHS Trust Development Authority—which the Bill proposes merging with NHS England—are included at present.

By having the requirements for public notice of, and attendance at, meetings of those bodies set out in the 1960 Act, we keep NHS bodies in line with the requirements placed on other public bodies, meaning that everyone is clear about the legal requirements and what the public can expect from them. Foundation trusts are not formally covered by the 1960 Act, but it is mandatory that they make provision in their constitutions that their board of directors’ meetings and their annual meeting of members be held in public. They are also under the same duty as NHS trusts to involve those who use their services in their decisions regarding service provision, as set out in section 242 of the National Health Service Act 2006. In practice, therefore, foundation trusts are guided by similar principles to other NHS bodies.

Turning to the point about setting in legislation a decision-making process for “major decisions”, we of course agree that it is vital that NHS bodies follow a robust process when making decisions. Integrated care boards, for example, have clear duties to use their resources efficiently and effectively. For practical reasons, however, we would not want to subject every major decision to a single fixed approach, not least because there is no provision in the amendment for responding to emergencies or rapidly emerging situations, including those related to patient safety.

I hope that I can, however, give some degree of reassurance that there are, as set out in the 2006 Act, broad duties on NHS bodies in respect of consultation and public involvement. NHS England involves those who are affected by decisions about commissioning in the decision-making process, either by consulting them or by providing them with information in other ways. A similar duty will be imposed on ICBs by clause 19. NHS trusts and foundation trusts have a similar duty in respect of public involvement and consultation when making decisions about the services they provide, again set out in the 2006 Act.

The Committee is also aware that the Treasury is committed to seeing business cases where capital spending, or whole-life cost spending for IT, is more than £50 million, and we expect ICBs to align with that standard. Furthermore, NHS England has a broad range of powers to issue guidance on how ICBs and others make decisions, spend capital and involve patients and the public in those decisions. Placing those processes in guidance, rather than on the face of the Bill, gives not only the flexibility to set different approaches in different circumstances, but the ability to respond to changing best practice.

On procurement and transparency, as we have discussed, the Bill introduces a power to bring forward new procurement regulations, which will set out the new provider selection regime. Regulations and statutory guidance will set out rules to ensure transparency and scrutiny under the new regime, which will be designed to ensure open, transparent and robust decision making, and will require decision-making bodies to demonstrate the rationale for their decisions. The decision-making process will be recorded internally by NHS bodies and audited annually. While decision-making bodies will be required to publish contracts awarded and intentions for the method of procurement, with a rationale for both, the bodies will not be required to publish every detail of their decision-making process.

Regarding FOI requests, I recognise the impulse to be as transparent as possible and agree that, unless exemptions apply, information should be released under the FOI Act. I am advised that confidentiality, which is an absolute exemption, and commercial confidentiality, which is a qualified exemption, are two separate exemptions already in that legislation. Where parts of the decision-making process are exempted on the grounds of commercial interests, those exclusions exist to protect the release of information that could prejudice a commercial decision. That could put NHS bodies at a disadvantage in ongoing negotiations and would be detrimental to the public purse.

I am advised that this is a qualified exemption and therefore disclosure would still be required unless the public interest in withholding disclosure outweighs the public interest in disclosure being made. I recognise that that is a tricky balance to strike, but I do not think it is to the benefit of the NHS that information held by NHS bodies that could be commercially damaging and does not meet a public interest test should be released.

I hope that that offers some reassurance to the Committee. I encourage the hon. Lady not to press her new clause to a Division.

Photo of Karin Smyth Karin Smyth Labour, Bristol South

I am grateful to the Minister. I was going to—

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.