Public Engagement and Commercial Confidentiality – Oil and Water?

A version of this article was first published in Primary Care Today.

CCGs may face pressure to disclose information about commissioning in at least four ways. From:

1. Their duties to involve the public in “planning of the commissioning arrangements by the group” (s14 Z2 National Health Service Act 2006).
2. Their duties to involve individual patients in “their care or treatment” (s14U National Health Service Act 2006).
3. Applications to provide information under the Freedom of Information Act 2000.
4. Applications for disclosure, as part of litigation brought by failed tenderers following procurement exercises.

The first three of these particularly raise questions about commercial confidentiality and public engagement. However, material produced by way of court disclosure can legitimately become public, for example, because certain court documents are public, or because it is referred to in a trial.

Those seeking disclosure may presume a public body resists to protect itself.  This need not be the case. Commercial organisations may be reluctant to provide information that could be made available to competitors. Public bodies may have similar concerns if disclosure reduces true competition in future procurement exercises.

Following the Cambridgeshire and Peterborough CCG case many CCGs will wonder about the extent of their disclosure obligations.

The law requires a good deal of openness from CCGs but this does not mean publishing detailed commercial information. It does require sufficient information for the public to understand the issues underlying decisions, including the financial issues.

The obligations for public engagement

“What to publish?” depends on the information available, the service being considered and the interpretation of the legal statutory obligation.

The obligations on CCGs to “involve” the public are to be found in the National Health Service Act 2006 by the Health and Social Care Act 2012 and in the NHS (Procurement, Patient choice and Competition) (No. 2) Regulations 2013.

Section 14Z2 requires the CCG to “make arrangements to secure that individuals to whom the services are being or may be provided are involved (whether by being consulted or provided with information or in other ways) in the:-

(a) planning of the commissioning arrangements by the group,
(b) development and consideration of proposals by the group for changes in the commissioning arrangements where the implementation of the proposals would have an impact on the manner in which the services are delivered to the individuals or the range of health services available to them, and…

This leaves much room for argument about the extent of the disclosure required. For example, disclosure is about the “arrangements” for commissioning rather than the commissioning of a particular service.  Involvement in proposals to change commissioning arrangements is required, but only where these would impact on services.

Another question is whether it is sufficient to set up a panel of members of the public or (more likely) that any system used must allow for involvement of the public generally. Notably, consultation is not specifically required.

Key for CCGs is that statute does not require the public to have access to the same information as tenderers. Information will be sufficient if it meets the statutory purposes of allowing public involvement in commissioning arrangements.

Policy documents

CCGs must have a procurement strategy; a patient involvement policy and must reflect their arrangements for public involvement in their constitution. These documents must comply with national guidance and the CCG must comply with them once they are in place. Wording of these documents is a further potential source of obligation to publish information.

Openness in action

CCGs have developed policies and constitutions which reflect these requirements.  For example, City & Hackney CCG’s Constitution states it will seek to achieve its aims by:

4.2.7. committing to involving the public, patients and our members in our decisions, consulting and testing out our plans and ideas via our website, formal consultation, meetings and other appropriate routes;

4.2.9. publishing our Board papers and decisions in minutes on our website and documenting contract decisions in line with the Information Commissioner’s Office Model Publication Scheme;

4.2.10.being transparent in the decisions we make and how we make them, making as many decisions as possible in public and resisting being bound by conditions of commercial confidentiality.

Challenging objectives but they demonstrate that openness can be provided voluntarily across large swathes of information.

Involving individuals

Obligations to involve individual patients may turn out to be just as important for disclosure of commercial information and, since they don’t depend on motivated third parties, just as likely to be litigated.

Section 14U National Health Service Act 2006 provides that a CCG must “promote the involvement of patients and their carers … in decisions which relate to … their care or treatment”.

That will have little relevance beyond current good practice to people receiving standard services. However, people receiving bespoke services or expensive individual provision may expect greater involvement in commissioning. The arguments against disclosure, even of commercial information, have less force where disclosure would be made only to one person or small number of people.

The guidance

NHS England published “Transforming Participation in Health and Care, Guidance for Commissioners” published in September 2013 to help CCGs improve individual and public participation.

The final three steps on “the ladder of engagement and participation” (a phrase it uses) deal with community participation as follows:

• Involving: the guidance suggests “partnership boards, the reference groups and service users participating in policy groups”.
• Consulting: the guidance suggests “surveys, door-knocking, citizens’ panels and focus groups”.
• Informing: the guidance suggests “websites, newsletters and press releases”.

The guidance suggests way of providing good quality information to achieve public participation but does not deal with the extent of information provided. Also, the sort of structured and managed public participation proposed, as we have suggested, may not be sufficient.

Freedom of Information Act 2000 (“FOIA”) and Procurement

Information Law – the FOIA and Data Protection Act – are forests of detailed entitlements and exemptions.

Section 41 FOIA provides a potential exemption for information provided in confidence if its publication would be an actionable breach of confidence.  Section 43 (2) FOIA provides that information is exempt from disclosure under FOIA if its disclosure would prejudice the commercial interests of any person (including the public body holding it).  This reflects the potential harm of companies becoming aware of each other’s pricing.

The Ministry of Justice publishes guidance and resources to help public authorities deal with FOI requests. This states that a public authority should always seek the views of any third party which provided information which might be disclosed under the FOIA.

However, commercial sensitivity is certainly not an automatic bar on publication. The Information Commissioner says public authorities must consider a range of factors including accountability for public money being spent.

Disclosures in procurement cases

Although not directly a matter of public engagement, detailed commercial information is likely to be published during litigation following procurement. For example, in Roche v Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 the court held that an unsuccessful tenderer should be “provided promptly with the essential information and documentation relating to the evaluation process actually carried out”.

Conclusion

CCGs face great challenges in commissioning and monitoring services, detailed structural reforms (such as personal budgets), broader issues (such as which model of services to commission), governance questions and dealing with individual challenges. Will they face as little litigation as PCTs did when dealing with these issues?