Freedom of Information: levelling the playing field for private providers?

The issues

The Health and Social Care Act 2012 provides increasing opportunities for private healthcare providers to provide NHS funded services. But many NHS providers consider that they are at an unfair disadvantage when competing for NHS funded work, as they are subject to legislative demands which do not apply to private healthcare providers.

In particular, NHS providers consider that all those providing NHS funded services should have to comply with the Freedom of Information Act 2000, (FOIA). NHS providers argue that as they are subject to FOIA and private healthcare providers are not, they are at a competitive disadvantage as requests for information may be lodged with them but not private healthcare providers. Extending FOIA to private healthcare providers is seen as necessary by many to redress this balance.

Proposed changes

An Early Day Motion (EDM) raised by Labour MP and a select health committee member, Graham Morris aims to change this. The EDM – Private Healthcare Companies and Freedom of Information - “demands that in future all private healthcare companies be subject to Freedom of Information requests under the terms of the Freedom of Information Act 2000 in the same way as existing NHS public sector organisations”. Other observations made by the EDM include:

• “Healthcare reforms have resulted in £7 Billion worth of new contracts being made available to the private health sector”
• Recognising “the growing scandal of the procurement model that favours the private health sector over the NHS, by allowing private companies to hide behind commercial confidentiality and which compromises the best practice aspirations over the public sector”
  
  GPs are being asked by the BMA to lobby their MPs to sign the EDM. Of the 95 MPs who have signed the EDM, 82 are Labour MPs, 7 are Liberal Democrats and the remainder are MPs from a few other smaller parties.
  
  Health regulator Monitor is also considering as part of its Fair Playing Field review, whether the differences in regulatory regimes to which NHS and private healthcare providers are subject, including Freedom of Information requests, affect the ability of providers of NHS services to participate fully in providing NHS services. Monitor is due to report back to Health Secretary, Jeremy Hunt next month.

Current FOIA regulation of providers

Currently, although private healthcare providers are not subject to FOIA, the NHS bodies that commission their services are. NHS commissioners are therefore under a duty to respond to any FOIA requests regarding the services that they commission. NHS commissioners use the terms of their commissioning contracts to ensure that providers assist them in complying with FOIA.

The NHS Standard Contract 2013/14 obliges all providers of NHS services – whether public or private sector - to assist and co-operate with commissioners to enable them to comply with their obligations under FOIA. In particular, GC 21.5.4 of the NHS Standard Contract requires that those providers that are not subject to FOIA themselves, do not respond to any Freedom of Information request they receive but transfer within two operational days to the Commissioner.

However, the scope of GC 21 is limited as it applies only to any information held by the provider on behalf of the Commissioner for the purposes of the contract, rather than information about the private healthcare provider itself. While this may deal with issues about transparency of service delivery, it does mean that private healthcare providers are not subject to direct scrutiny by the public and also they do not have to deal with requests for financial commercial information about themselves. For many this represents an imbalance and does not constitute a “fair playing field”.

Is change likely?

The chances of the EDM resulting in a change in the treatment of private healthcare providers under FOIA are slim. EDMs are formal motions submitted for debate in the House of Commons but very few are debated.

In addition, whether private companies providing public services should be made subject to FOIA was recently considered by the Justice Committee in its Post Legislative Scrutiny of the Freedom of Information Act 2000. The Committee decided that on the evidence received, the use of contractual terms to protect the right of access was working relatively well – although it also noted that some public bodies were reluctant to take action enforcing FOIA terms, if the private provider was complying with all other contract terms. The Committee concluded that contracts provide a more practical basis for applying FOIA to outsourced services than the partial designation of commercial companies for the purposes of FOIA.

The Committee did however reserve the right to make companies subject to FOIA in the future if there were signs that either public bodies were not taking action to enforce FOIA contract terms or private companies were not complying with such terms as positively as they should.

The Committee also found that there was insufficient evidence as to whether the section 43, (prejudice to commercial interests) FOIA exemption, operated effectively to protect the competitiveness of public authorities when competing for public service contracts. The Committee recommended that this issue was kept under review and if public sector bodies were found to be disadvantaged that the commercial interests exemption be modified or another model adopted to protect public sector bodies.

The Government in its Government Response to the Justice Committee’s Report: Post-legislative scrutiny of the Freedom of Information Act 2000 accepted the recommendations of the Justice Committee on both the operation of the section 43, (prejudice to commercial interests) FOIA exemption and not extending FOIA to contractors.

The Government in its Response noted that, “some public authorities and their contractors interpret holding information on behalf of one another broadly” and highly commended this approach. The Response continues that, “To maximise transparency, the Government strongly encourages public authorities and contractors to interpret their obligations in this way, so as to provide, on a voluntary basis, information that they think the requester and the wider public may be interested in but which is additional to the bare minimum that is technically covered by an FOI request to the public authority.” The Response concludes, “We consider a combination of these approaches to be a proportionate response, striking the right balance between the need for accountability and the need to minimise burdens on business. The Government therefore does not intend, at this time, to legislate to extend FOIA obligations to contractors.”

It seems therefore, that notwithstanding the rapidly changing commissioning landscape, unless both private healthcare providers and NHS providers ignore their contractual obligations, there will be no levelling of the playing field with regard to FOIA.