Meeting the obligation of public and patient involvement in a competitive tender process can pose difficulties. David Owens advises on best practice
NHS managers are becoming increasingly aware that the obligations of public and patient involvement are significant and that failing to comply with the duty can lead to challenges to proposed service developments.
When there is a competitive tender process to select a service provider, it is important to remember that the duty to seek public and patient involvement begins well before the final proposal is sent out for consultation. Complying with the PPI obligation in these circumstances can pose difficulties.
While this is comparatively easy to manage in the case of a process where there is consultation, this would mean giving the contracting authority a clear specification for the service that is then bid for.
Transparency vs confidentiality
Things get more complicated when ideas are sought from the public as part of the bidding process. For example, you may be designing an out-of-hours service for which you do not want to prescribe to bidders the base at which any face-to-face consultations would take place, or the way in which the service is to be provided. These issues could have a significant impact on some patients. You may not know, however, what the proposals are until bids are in, and at that stage the bidders may have legitimate concerns about commercial confidentiality.
Conducting wide public consultation in the middle of a competitive tendering process is unattractive and unworkable, but what are the alternatives? In practice, we would suggest a combination of the following options:
- Try to engage the potential bidders in the initial consultation process to the extent that they are prepared to share ideas so you can gauge reaction at that stage. Often there is a degree of reluctance to involve providers from outside the NHS but this can be positive as a marketing opportunity and in encouraging provider interest in new services.
- Try to get criteria for evaluation, reflecting views of the public and patients to the extent that they are not privy to the detail of bids so you can be in a position to know what matters they think are important. This can at least help you to appreciate whether location is important, or hours of access, or relationship with current providers.
- Consider how far public or patient involvement in the assessment and decision-making process can enable you to obtain relevant views. This can at least mean that a representative of public or patient interest gets to view the bids and has the opportunity to comment on them. The difficulty is that terms of confidentiality would prevent them from reporting.back to their wider constituency. It is better to be open at the start of the process and to make it clear that it will involve a degree of stakeholder discussion of bids, and clarification of the parts of the bid that will be kept confidential (such as price).
- Care needs to be taken about the terms of confidentiality agreements to ensure that they do not unnecessarily fetter the ability of the contracting authority to conduct proper consultation.
David Owens is commercial partner at Bevan Brittan LLP.