A clinical commissioning group 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.