The Download: The choices facing the NHS and Frank Hester

Last week’s Guardian articles about The Phoenix Partnership chief executive Frank Hester caused substantial uproar in the NHS tech community.

The story broke on Monday evening, just 12 hours before the Digital Health Rewired conference kicked off in Birmingham where Mr Hester’s firm TPP was among the sponsors.

Some tech leaders were quick to publicly condemn Mr Hester’s alleged comments, and it has been hard to miss the outcry from wider society.

However, one important organisation took a whole week to address the story.

Given the amount of money spent on TPP by the NHS (estimated to be in the tens of millions of pounds annually), you would be forgiven for thinking NHS England might have wanted to make its position clear.

The regulator’s transformation director Vin Diwakar — arguably the most senior NHS tech official — was asked on Wednesday at Rewired about the comments, when he would say only that there was no place for racism in the NHS and that he couldn’t comment on specific suppliers or contracts.

This cautious response provided little insight into NHSE’s stance, and it was only last night (Monday) the regulator further addressed the story via CEO Amanda Pritchard’s weekly briefing email to NHS leaders and staff.

Her words condemning the “racist, sexist and violent” alleged comments were firm and broadly reflect what we’d expect of leaders, in the NHS or otherwise. But they are, of course, just words, and we all know action speaks louder.

It raises the crucial question of what action NHS organisations could, and should, take in response.

Formal action looks difficult

In theory, there are several options. The most drastic measure suggested by some is to cancel NHS contracts with TPP, which proponents argue would send the clearest message yet that the NHS is serious about a zero-tolerance approach to racism.

But there are several problems with this idea.

Firstly, cancelling contracts on the basis of the firm’s owner allegedly making racist comments would likely be a difficult decision to justify in the courts if TPP subsequently sued.

The NHS would have to argue it was strong enough to bring the health service sufficiently into disrepute, which may (or may not) be a contractual clause in the contracts, therefore opening up the prospect of cancellation.

Secondly, cancelling contracts with TPP would leave significant numbers of NHS organisations and GP practices in need of a new electronic patient record supplier. As HSJ has documented at great length, buying and implementing new EPRs is an enormous undertaking which can cause huge disruption and risk – and so this is very unlikely to be a welcome prospect for organisational chiefs.

Legally and practically, contract cancellations are likely a risk too far for individual organisations acting unilaterally. They would need the NHS as a whole to take a moral stand, with NHS England’s active support, and it seems highly unlikely (incidentally, the Download is still waiting for NHSE’s response to its questions about whether action would be taken against TPP).

Another option which has been suggested is to ensure no further contracts are awarded to TPP by the NHS by excluding it from future procurements. A legal basis for this is also likely to be difficult.

One NHS procurement veteran, speaking to the Download on condition of anonymity, said they did not believe the NHS could stop TPP from bidding for and winning contracts without breaching procurement law.

The only legal justification would be “grave professional misconduct”, which the source described as a “vague” definition.

The case for halting use of TPP is made harder by dint of the reason for the exclusion being Mr Hester’s alleged comments and his role in the company, rather than TPP’s EPR itself – they said.

However frustratingly, this probably leaves the NHS with non-contractual actions.

New charter

The most striking of these responses appears to come from three leaders within the NHS tech landscape, who have announced plans to establish an “equity charter” which would “incorporate standards of behaviour that we hold ourselves and each other to”.

The trio – NHS provider CCIO Ayesha Rahim, tech adviser Hassan Chaudhury, and tech consultant Victoria Betton, said the charter had received more than 800 signatures including backing from NHS Providers, the Federation for Informatics Professionals in Health and Social Care, and Chesterfield Royal Hospital Foundation Trust.

Mr Chaudhury said he had “long wanted an industry that sets its boundaries in concert and is essentially self-correcting”, which is why the charter was “vital”.

This would involve the NHS designing these boundaries along with industry, suppliers having been “fully bought-in and involved from the outset through co-production and co-development”, and with the input of patients, regulators and healthcare professionals.

More widely, the NHS can use its substantial national and local voice, along with the concern over Mr Hester, to raise awareness and educate people — including suppliers — about racism. This means calling it out at once where incidents occur, then taking action which is proportionate and legal.

Mr Hester has apologised for his “rude” comments and said he abhors racism. With TPP still set to be a major player in the NHS tech space in the coming years, he also now has a choice about how show his remorse, engage with the NHS and offer services which help patients.