1 July 2022 marked the abolition of Clinical Commissioning Groups (CCGs) and creation of the 42 Integrated Care Systems (ICSs), with their statutory bodies the Integrated Care Boards (ICBs) and the separate statutory Integrated Care Partnerships (ICPs). At the time of this Healthcare Newsbrief, the ICBs have just passed their first 6 months as accountable bodies, and their impact on local health systems are beginning to be felt.

A great deal of work was undertaken by the predecessor CCGs prior to the new ICBs formation, and there were no major reported issues arising out their establishment. However, with larger regional footprints, different memberships and additional responsibilities, the ICBs are not simply CCG rebranded. As ICBs have become more established, they have commenced their roles and we note below some clarity on immediate planning and regulatory oversight that has become clearer recently.

The Rt Hon Patricia Hewitt has recently been engaged to carry out an Independent Review into ICS, of which ICBs form one part. The review is due for 15 March 2023 at the latest, less than a year after ICBs and ICS became a statutory reality. The focus of the “Hewitt Review” is how the oversight and governance of ICSs can best enable them to succeed. It will be interesting to see if further changes, so soon after the establishment of ICBs, are recommended or taken forward.

System planning under way

ICBs and ICPs have statutory functions concerning planning for the future of health services in their relevant areas. This year is something of a transitional year and it is not expected that all ICSs will be making full use of the flexibilities afforded to them immediately.

The recently published guidance on delegations and collaboration arrangements makes clear that it is not expected that the relevant powers will be used this year by most ICBs.

Some statutory duties must be complied with and undertaken from this first year. Before the start of each financial year, each ICB and their partner NHS trusts and foundation trusts must publish a five-year joint forward plan.

The joint forward plan should set out how functions will be exercised and what steps will be taken to implement joint local health and wellbeing strategies, to address the needs of children and young people under 25, and to address the needs of victims of abuse, whether adult or children. It will be a document of interest in each region, and one which the publishing NHS bodies must have regard to.

Regulatory oversight of providers

Most recently there has been some clarification of roles and responsibilities of NHS England (“NHSE”) and ICBs with the publication of the NHS Operating Framework by NHSE. The statutory power of oversight of trusts and foundation trusts is with NHSE, however, under the framework this is to be carried out by ICBs for the top ranked providers (those in segmentation one and two under the system oversight framework (SOF)). NHSE is to lead the oversight for those in segmentation three and four. NHSE will always have the overall legal powers of oversight and intervention in respect of NHS providers, however ranked. It will remain a developing issue as to how trusts and foundation trusts are ultimately subject to performance management.

Generally

Since before the publication of the NHS Five Year Forward View, the NHS and local systems have been in a state of change and development. The law has changed to better align with the current approach of integration and collaboration, in place of competition. The changes bring uncertainties and new organisational requirements to different bodies. Not all parts of the country are operating in the same way or at the same speed, in terms of the approach or development of integrated systems. There remains much work in progress in many ICBs and ICPs, and all ICS will be seeking to improve efficiencies, services and outcomes (within constrained budgets). …plus CA change!

In May 2021, the then Prime Minister, Boris Johnson, announced that the Government would establish an independent statutory Public Inquiry into the COVID-19 pandemic. The chair of the Inquiry, Baroness Hallett, was appointed in December 2021. Following a public consultation, the final Terms of Reference were published on 28 June 2022.

The Inquiry will consider and report on:

• preparedness and resilience for dealing with the pandemic
• the public health response of the UK as a whole
• the response of the health and care sector across the UK
•  the economic response and its impact, including Governmental interventions

Modular approach to investigations and timetable

On 21 July, the Chair, Baroness Hallett, gave an opening statement to officially launch the Inquiry and described a modular and sequential approach to investigating the key lines of enquiry set out in the Terms of Reference.

Details of the first three modules have been published. The Inquiry’s first investigation, Module 1, opened on 21 July. It will examine the resilience and preparedness of the UK government and government agencies for the coronavirus pandemic. Procedural hearings began on 4 October, and public hearings for Module 1 are scheduled to begin in June 2023.

On 31 August Module 2 was opened. Module 2 will examine core political and administrative governance and decision-making by the UK government. The same overarching and strategic issues from the perspective of Scotland, Wales and Northern Ireland will be explored in Modules 2A, 2B and 2C, with the associated public hearings taking place in each nation. Module 2 will review, and make recommendations upon the UK’s core political and administrative decision-making in relation to the COVID-19 pandemic between early January 2020 and June 2022. Procedural hearings for the four chapters of Module 2 are underway.

The Chair has confirmed the Module 3 will examine the impact on healthcare (see below).

The Inquiry will announce further modules in 2023, likely to cover both ‘system’ and ‘impact’ issues including:

• vaccines, therapeutics and anti-viral treatment
• the care sector
• government procurement and Personal Protective Equipment (PPE)
• testing and tracing
• government business and financial responses
• health inequalities and the impact of COVID-19
• education, children and young persons
• the impact of COVID-19 on public services and on other sectors

The impact of the pandemic on inequalities will be considered at every stage of the Inquiry’s investigations.

Module 3

Module 3 into the impact of the pandemic on healthcare opened on 8 November 2022 with Baroness Hallett, Chair of the Inquiry, saying:

“The pandemic had an unprecedented impact on health systems across the UK. The Inquiry will investigate and analyse the healthcare decisions made during the pandemic, the reasons for them and their impact, so that lessons can be learned and recommendations made for the future. 

“During the consultation on our Terms of Reference, bereaved families and healthcare workers told me candidly about the devastating and prolonged impact of the pandemic on healthcare. Those most affected by the pandemic deserve answers on what happened and why. I am determined to get those answers.”

On opening Module 3 of the Covid-19 Inquiry, Baroness Hallett, the Inquiry Chair, confirmed that this module will look at how healthcare systems responded to the pandemic, and the impact on systems and services (including on patients, doctors, nurses and other healthcare staff). Primary, secondary and tertiary healthcare sectors and services will be covered by Module 3, and in doing so, the inquiry will look at illustrative accounts, and will examine healthcare-related inequalities.

The Inquiry set out 12 key areas of enquiry (KLOE) in its Module 3 provisional scope. Whilst the issues that Module 3 will cover continue to develop, with the Chair indicating at the first procedural hearing on 28 February 2023 that a list will follow, those issues provisionally identified cover matters such as the impact of the pandemic on people’s experience of healthcare; core decision-making and leadership; staffing levels and critical care capacity; Nightingale hospitals and 111 and 999 services; the provision of care and treatment, including maternity care and palliative and end of life care; co-operation between services; the impact on staff; clinically vulnerable patients; and long COVID.

The task of exploring the KLOEs across healthcare in each of the four devolved nations will undoubtedly be a mammoth task for the Inquiry. To assist the Inquiry in identifying the issues upon which the Inquiry needs to take evidence, whether in written format or orally during the public hearings stage, at the end of 2022 the Inquiry sent questionnaires to health and care related organisations. The questionnaire responses received are not intended to form part of formal evidence, nor will they be disclosed during the course of the Inquiry. It is however understood from the procedural hearing on 28 February 2023 that the Inquiry legal team have used the questionnaire responses to identity the inform which organisations to send Rule 9 Requests to, including the issues to be addressed in statements or through disclosure of documents.

A Rule 9 request is a reference to Rule 9 of the Inquiry Rules 2006. Rule 9 entitles the Inquiry to send a written request for evidence, with details of what it would like the recipient to cover and requests made under Rule 9 are the first stage of information gathering. A Rule 9 request may seek disclosure of documentation and a written witness statement. Rule 9 requests can also be used to request further evidence, or request the attendance of a witness to give oral evidence during the public hearings.

Rule 9 requests are considered a less formal request by an Inquiry for evidence. This is because a request under Rule 9 does not give the Inquiry the power to compel the provision of documents or statements.

The power to compel the provision of documents is set out in Section 21 of the Inquiries Act 2005. Should a Rule 9 Request not be complied with, an Inquiry will whether to issue a formal notice under Section 21. There are many compelling reasons to comply with a Rule 9 Request, not least because Section 35 of the Inquiries Act 2005 states that it is a criminal offence to fail to comply with a Section 21 Notice, or to do things intended to have the effect of distorting or altering the evidence, intentionally suppressing evidence, or concealing a document. Whilst there are of certain exemptions to providing information, even where a Section 21 notice has been issued, Section 35 enables individuals and organisations to be fined for failure to comply with a Section 21 Notice, and in the most serious of cases, individuals can face imprisonment. It follows that failure to comply with a Rule 9 Request puts individuals and organisations at risk of receiving a Section 21 Notice and in a situation whereby serious and significant implications may follow.

Rule 9 Requests are sent because the Inquiry believes the recipient has evidence that will be of assistance in establishing what happened, why events happened and to learning lessons for the future. They provide the recipient of the Request with the opportunity to share their experiences and potentially influence positive changes. There are also professional and regulatory duties for many organisations and individuals working across the health and care sectors to assist public inquiries and give evidence.

Rule 9 Responses will be formal evidence which can be referenced in the Inquiry hearings and reports. They will be analysed and used to inform and shape further enquiries, and what oral evidence that Inquiry will hear when the hearing of Module 3 evidence begins in 2024.

With extensive experience in supporting the NHS and social care sectors in high profile public inquiries, including supporting Trusts to prepare for the COVID-19 Inquiry, Hempsons is here to help.

Find out more about how we can help you prepare for the Inquiry in our COVID-19 Inquiry brochure.

Background

Since the publication of the interim Francis report in 2010, the issue of whistleblowing in the NHS has been constantly the subject of public debate and attention.

We have seen the setting up of the national freedom to speak up guardian role, local freedom to speak up guardians appointed and the national speaking up support scheme in place. Whistleblowing remains a topic of public interest.

One of the difficult areas for NHS employers is how to manage concerns raised about whistle-blowers themselves. Managers are often concerned about raising issues of performance or misconduct where they concern protected whistle-blowers for fear that they will be the subject of employment tribunal claims. As individual managers can be liable, this is a particular concern.

The recent Court of Appeal case of Kong v Gulf international Bank [2022], though not involving an NHS organisation, provides useful guidance for employers on how to manage such concerns successfully.

The Kong case

Mrs Kong, head of financial audit for the bank raised concerns with the bank’s Head of Legal (Mrs Harding) in relation to a financial compliance template. These concerns amount to whistleblowing (making “protected disclosures”). In the course of a discussion Mrs Kong questioned Mrs Harding’s legal awareness which caused Mrs Harding distress and she complained to the bank’s Head of HR and CEO. She said her professional integrity had been questioned and she indicated that she could no longer work with Mrs Kong.

Mrs Kong was subsequently dismissed on the basis of her behaviour towards Mrs Harding. The bank emphasised that the dismissal was not connected to her protected disclosures. Mrs Kong then brought employment tribunal proceedings in part on the basis that she had been dismissed having made protected disclosures.

Court of Appeal judgment

The Court of Appeal considered previous case law on the separability of the actions taken by an employee and their protected disclosures. They reiterated the principle that an employee could be fairly dismissed for making protected disclosures in an unreasonable or unacceptable way or where the employee subsequently acted in an unacceptable way in relation to the protected disclosure. In such a case the employment tribunal could make a finding that, although the dismissal was related to the disclosure, it was not because of the disclosure itself.

In reaching a decision on this point the tribunal was entitled to focus on, as matter of fact, what was in the mind of the decision maker at the time of dismissal. Making the disclosure could be the context for a decision but not the reason itself.

Whistle-blowers do not have immunity for behaviour related to the making of protected disclosures where such behaviour is unreasonable or bad in any way.

“Unreasonable” behaviour is not, however, the same as challenging or unwelcome behaviour.

Managing concerns about whistle-blowers

Protected disclosures made by NHS employees often involve criticism, implicit or otherwise, of other employees and this can often upset those employees and cause distress. This will rarely be enough to justify action being taken against the whistle-blower.

In the previous case of Martin v Devonshires Solicitors [2011] the Employment Appeal Tribunal (EAT) described this justification as being “ …capable of abuse. Employees who bring complaints often do so in ways that are, viewed objectively, unreasonable …An employer who purports to object to “ordinary” unreasonable behaviour of that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise a distinction between the complaint and the way it is made save in clear cases…”.

There will be occasions, however, where the way in which the disclosure was made, or the behaviour of the whistle-blower generally gives rise to legitimate concerns that need to be managed.

It is important that, as much as possible, the concerns are kept separate from the disclosure itself. This is often a difficult task, but this should involve the following:

• setting out clearly the nature of the concerns and why the manner in which the employee has behaved is considered to be potentially very unreasonable or bad
• ensuring that decisions about disciplinary action
• are taken by managers who have had no previous involvement in the disclosures themselves
• being scrupulous to ensure that the information presented to the manager is not misleading in any way
• ensuring that appropriate HR and legal advice is taken to ensure objectivity in determining the appropriate action to be taken against the employee
• being very clear in any disciplinary outcome letter what the reason was for taking action
• ensuring that the whistle-blower is aware of the support they can be given by your Freedom to Speak Up Guardian and other resources
• supporting managers who are dealing with concerns about whistle-blowers and making sure that they know that if they follow a fair procedure, follow your own policies and behave reasonably, they will be supported

Summary

Like every other employee, whistle-blowers can behave in a way which is contrary to your reasonable expectations for behaviour. Taking action against those who have made protected disclosures can be difficult for managers and difficult for your organisation generally, but there will be occasions when it becomes necessary. In such cases the key consideration is whether you can legitimately separate the disclosures from the unacceptable behaviour. The courts acknowledge that whistle-blowers are not granted immunity from disciplinary action in cases where the principle of separability applies.

Replacing the Serious Incident Framework (2015), those organisations delivering care under the NHS Standard Contract have until the autumn of 2023 to not only implement the new framework, but to overhaul their approach to investigating patient safety incidents (PSIs) in a way which represents a cultural shift.

What is PSIRF?

In developing and maintaining a system for responding to patient safety incidents, PSIRF has four key aims which we will look at briefly later in this article:

1. Compassionate engagement and involvement of those affected by PSIs
2. Application of a range of system-based approaches to learning from PSIs
3. Considered and proportionate responses to PSIs
4. Supported oversight focused on strengthening response system functioning and improvement

PSIRF is a fundamental shift away from prescribed rules of investigation to a flexible system-based approach which relies on local data to support providers in establishing their own improvement priorities. These improvement priorities will inform the organisation’s response to PSIs, including determining those PSIs which will be subject to a full investigation.

The distinction between a “patient safety incident” and a “serious incident” contained in the Serious Incident Framework 2015 has been removed by PSIRF, meaning that the prescriptive approach to incidents and thresholds of harm as the determinative factors for investigations no longer apply.

Rather than prescribe which PSIs organisations are required to investigate, organisations are required to develop their own policy for responding to PSIs and personalised Patient Safety Incident Response Plans. PSIRF therefore represents a flexible approach to investigating PSIs. It enables providers to focus time and resource on investigating and implementing improvements relevant to its own context and population.

HSIB has called PSIRF “a fundamental shift in how the NHS responds to patient safety incidents” and said it “marks a seminal moment”.

What are the objectives of PSIRF?

It is the objective of PSIRF to improve the qualitative approach to investigations and learning. The flexible approach seeks to balance investigative resource with implementing and embedding meaningful improvement.
To achieve the PSIRF objectives, providers will need to properly understand their patient safety risk profile to inform the approach taken to investigations and the development of a Patient Safety Incident Response Policy and Plan.

Who does PSIRF apply to?

PSIRF will apply to those working under the NHS Standard Contract; acute, ambulance, mental health and community healthcare providers. Maternity and specialist services are included.

PSIRF will also apply to those private providers carrying out NHS functions. These providers will be required to adopt PSIRF, albeit not to undertake the full planning analysis required to implement Patient Safety Incident Response Plans.

Foundations to achieving effective learning and improvement using PSIRF

PSIRF puts passionate engagement at its core. It recognises that effective learning and improvement means working with all affected by patient safety incidents this includes patients and families and staff through compassionate engagement.

Guidance has been compiled by NHSE in partnership with HSIB and Learn Together, which includes a step-by-step guide to engagement at all stages, from planning the first contact to closure of the investigation.

PSIRF identifies the need for a system-based approach to be taken to investigations, recognising that there are often multiple contributory factors including human factors, organisational culture, systems and environmental factors, rather than a simplistic and linear approach which identifies a single root cause.

PSIRF acknowledges that the resource available to investigate PSIs and implement improvements is not finite. The focus is therefore one of proportionality of response, identifying the key improvement priorities and therefore, the PSIs to be investigated to maximise the greatest improvement outcomes. This targeted and focused approach, informed by the organisations personalised risk profile and Patient Safety Incident Response Plan, gives organisations personal responsibility for driving their own improvement.

Provided that ICBs and regulators are satisfied that improvement work is being appropriately managed to address known contributory factors through Patient Safety Incident Response Plans and appropriate governance structures, organisations will not need to fully investigate every patient safety incident. There will however need to be alternative processes to engage with those affected by those PSIs not subject to a full investigation, and the duty of candour still applies. For those PSIs not subject to full investigation, consideration could be given to MDT discussion or targeted feedback.

Part of the cultural change of PSIRF is a move away from holding organisations to account for the quality of their investigations and reports, and empowering them through engagement and promoting a culture of improvement through internal accountability with oversight from ICBs and regulators.

What are organisations required to do?

To implement PSIRF, organisations need to development of two key documents:

1. A Patient Safety Incident Response Policy
2. A Patient Safety Incident Response Plan

Both documents are organisation specific, and the Plan must of course be kept under review.

To develop an effective Patient Safety Incident Response Policy and Plan, organisations must understand their patient safety and risk profile. To achieve this, organisations need to collate and evaluate all available date. For many organisations, there may need to be significant procedural and cultural changes to capture all data. Known, silos across claims, complaints, inquests, patient safety and governance teams may need to be broken down and new processes and procedures put in place

There is a template Patient Safety Incident Response Policy and a template Patient Safety Incident Response Plan on NHSE’s website. To work with these templates, particularly the Patient Safety Incident Response Plan template, organisations will first need to undertake an analysis of all of their data to inform their improvement objectives.

Involvement of patient safety partners and addressing inequalities

The NHS Patient Safety Strategy promotes the involvement of patients, families and carers as patient safety partners. PSIRF advocates patient safety partners as an effective means of oversight in developing local policies and plans. There is more information in the Framework document for involving patients in patient safety matters.

Through the flexibility of PSRIF and the creation of local plans, along with the involvement of patient safety partners, addressing health inequalities that affect both patients and the local community should be easier.

Inequalities should be at the forefront of considerations when developing Patient Safety Incident Response Policies and Plans.

“It is human to make mistakes so we – the NHS – continuously need to reduce the potential for error by learning and acting when things go wrong.”

“Patient safety is about maximising the things that go right and minimising the things that go wrong. It is integral to the NHS’ definition of quality in healthcare, alongside effectiveness and patient experience.”

The NHS Patient Safety Strategy (NHSE), July 2019

There is a considerable amount of information available across the NHS and within your organisation to support learning from incidents and inform patient safety improvements. All NHS trusts will be very familiar with reports and data aimed at learning produced by Getting it Right First Time (GIRFT), NHS Resolution through their scorecards, HSIB maternity investigations, and CQC reports, to name but a few sources. Your organisation will also produce a significant amount of internal learning data, including incident reporting, mortality reviews, complaints investigations, internal investigation reports and action plans, prevention of future deaths reports from coroners, and claims outcomes.

Despite the considerable amount of data and information produced to inform learning and improve patient safety, do you fully maximise the learning from these different streams? And understand the true extent of risk being carried by your organisation?

All too often we hear that the way in which trust legal, patient safety, complaints and learning team work in silos, results in missed opportunities for identifying, capturing, evaluating, embedding and evidencing learning opportunities from all available data streams.

Understanding your risk profile and having systems in place to manage all data is more crucial than following the publication of the Patient Safety Incident Response Framework (PSIRF), the new framework for investigating patient safety incidents. We go into more detail on this issue in our article: “The Patient Safety Incident Response Framework (PSIRF)”.

To understand whether the internal systems and processes in your organisation support a commitment to learning, and to understand whether your organisation may be carrying underappreciated or unidentified risk, you need to understand:

• how learning from the investigation of adverse incidents, complaints, inquests, and claims is communicated between teams
• what methods are being used for evaluating risk and identifying learning at all stages of legal processes, not just at the time of the incident, or in the event of an inquest
• how you monitor and evaluate ongoing risks, including the identification of themes
• how you support the engagement of staff through internal processes
• candour and how well you engage patients and family or carers, both in terms of sharing outcomes and learning from their experiences
• how you communicate areas of concern and learning outcomes with stakeholders, including coroners, the CQC, and NHS Resolution, to name but a few

Diagnostic reviews

At Hempsons, we are committed to capturing learning from all sources of available data, including learning from incidents. We work with organisations to improve patient safety through diagnostic reviews.

The purpose of a diagnostic review is to evaluate work processes, methods and culture around capturing and implementing learning from all data sources and incidents. Our approach to such a review is holistic.

We work with healthcare providers to understand and evaluate the risk profile of the organisation, and review the processes and procedures within the organisation to ensure that they support a culture of learning. Our reviews inform a diagnostic quality, safety and learning report addressing a range of risk and learning factors such as:

• risk profile of the organisation
• risk being carried by the organisation in terms of public confidence and accountability
• areas of good practice in relation to capturing and embedding learning
• areas where there are missed opportunities to capture and embed learning
• reasons for the missed opportunities to capture and embed learning

Using this analysis, we make recommendations for changes to policies and procedures to support improve the quantity and quality of learning. We also make recommendations for systemic and cultural changes all aimed at making positive and measurable changes to support patient safety.

The High Court has recently handed down judgment in the case of Consultant Connect Limited v NHS Bath and North East Somerset, Swindon and Wiltshire Integrated Care Board, NHS Gloucestershire Integrated Care Board, NHS Bristol, North Somerset and South Gloucestershire Integrated Care Board [2022] EWHC 2037 (TCC).

This judgment has provoked considerable comment among procurement lawyers, and concern from contracting authorities and those responsible for commissioning decisions around the impact it may have on those decisions in future.

The claim related to steps taken by three CCGs (now ICBs hence the names of the defendants) involved to identify a preferred supplier, and thereafter, to identify a route to award a contract to that supplier, via a framework. Another supplier then brought proceedings, alleging that the steps taken by the CCGs amounted to an unlawful direct contract award without competition. Throughout this article we refer to CCG staff, rather than ICB staff.

The facts

• three CCGs wished to secure a communications system to replace pagers and provide other associated functionality. The three CCGs took the decision to procure together, with the intention to award one contrac
• Consultant Connect was a provider of communication tools, as was another supplier, Monmedical Limited (t/a Cinapsis)
• in 2019, NHSX had implemented a framework for IT services and equipment (“the CCT Framework”). The published framework value was £3m, reflecting funding available from NHSX, rather than the likely value of contracts to be procured using the framework during its life. Cinapsis was a named supplier on the CCT Framework. Consultant Connect was not
• one of the CCGs had an existing contract with Consultant Connect. Another had a contract with Cinapsis. The third CCG did not have a contract in place for such services

• one of the CCGs had an existing contract with Consultant Connect. Another had a contract with Cinapsis. The third CCG did not have a contract in place for such services
• initially, the CCGs considered whether it would be preferable to award a new contract to Cinapsis. However, given the existing contract between one of the CCGs and Consultant Connect, the CCGs arranged a ‘demonstration day’ with both providers in November 2020. In advance of the demonstration day, the CCGs prepared a scoring matrix and criteria against which Cinapsis’ and Consultant Connect’s demonstrations would be marked. Neither supplier was aware of the matrix/criteria, nor indeed that any scoring was taking place at all
• following the demonstration day, the CCGs concluded that Cinapsis was their preferred provider, and sought to identify a route by which they could award the contract to Cinapsis. The CCT Framework was identified, but did not provide for a direct award without a further mini-competition. The CCGs thereafter concluded that, based upon their requirements, the only capable provider on the framework was Cinapsis, and commenced a mini-competition in which only one bidder was invited to take part, that bidder being Cinapsis
• the CCGs also sought to implement a different pricing model to that contemplated in the CCT Framework and engaged in further negotiations with Cinapsis prior to concluding a contract. The final contract value was £2.7m
• following contract signature, Consultant Connect brought a claim under the Public Contracts Regulations 2015 (“PCR 2015”), alleging that the CCGs had acted unlawfully

The decision

Taking the key issues one at a time:

Standing

The Judge concluded that, while it will often be the case that only economic operators on a particular framework will have a basis to challenge the operation of that framework, in some circumstances, other organisations may also be able to challenge by showing that they have been subject to loss following breaches under the PCR 2015. Here, Consultant Connect was sufficiently affected by the decisions of the
CCGs to have a basis for challenge. The impact of this finding is likely to need to be assessed on a case by case basis, based on the factual position – see point 6 below.

Scope of framework

The Judge concluded that the CCT Framework did cover the communications system/contract being procured.

Conflicts of interest

There was clear evidence before the Court that an employee of one of the CCGs who was involved in the procurement strongly favoured Cinapsis and lobbied throughout for Cinapsis to be appointed. Other members of staff were also shown to have a strong preference for Cinapsis, and to have tried to identify a route by which it could be awarded a contract without any competition. The Judge concluded that,
from November 2020, the conduct of certain CCG employees in favouring Cinapsis was such as to give rise to a conflict of interest on the part of those staff, even though those staff did not stand to gain any financial or other benefit from Cinapsis being appointed.

Transparency and equal treatment

The Judge concluded that the CCGs had, effectively, conducted a procurement process under the guise of ‘market engagement’, and had failed to comply with their obligations of transparency and equal treatment. The evaluation of Cinapsis and Consultant Connect during the ‘demonstration day’, particularly the use of scoring, was a significant factor in the Judge’s conclusions.

Artificially narrowing competition

The Judge concluded that despite the fact that the contract/ communications system fell within the scope of the CCT Framework, the decision to use it amounted to an attempt to artificially narrow competition and was unlawful. The Judge expressly found that the intention of the CCGs in using the CCT Framework was as a ‘shield’, to justify excluding Consultant Connect or other providers from the opportunity to compete.

Was there a risk of Consultant Connect suffering loss or damage?

The CCGs sought to argue that, at the point that they elected to utilise the CCT Framework to procure a contract that fell within the scope of that framework, the only parties exposed to any risk of loss from subsequent breaches of the CCT Framework’s terms were the other suppliers on the CCT Framework. However, the Judge concluded that, had the CCGs not elected to use the CCT Framework in order to avoid needing to run a competition, they would likely have used an alternative framework of which Consultant Connect was a member, or carried out an open competition. In either case, Consultant Connect would likely have sought to bid (and would have developed its business in order to be able to meet the specification required), and accordingly, had been exposed to the risk of loss or damage as a result of the actions of the CCGs.

Remedies

Consultant Connect sought an order that the contract be declared ineffective (as it had effectively been awarded directly to Cinapsis, without advertisement). The Court accepted that there were good reasons not to make a declaration of ineffectiveness, given the disruption to staff and patients that was likely to be caused by the service being stopped immediately. However, the Court felt it appropriate to make a contract shortening order, reducing the contract term by 14 months (allowing time for the services to be reprocured), and further imposed civil penalties on the CCGs. This is thought to be the first time that a contract shortening order has been made under the PCR 2015 in the UK.

The facts of this case are, it is hoped, extremely unusual. The conduct of the CCG staff involved was such as to enable the Judge to make clear findings that the CCGs had sought to unlawfully favour a particular supplier, and that conflicts of interest had arisen for key CCG staff members. By the time of the mini-competition, conducted under the CCT Framework, the intended outcome was so clearly apparent that one of the evaluators did not bother to score the Cinapsis bid “as I think it means nothing”.

Nonetheless, the case raises a number of significant points around the use of frameworks, and the steps open to contracting authorities when considering different routes to market.

The PCR 2015 expressly contemplates market engagement taking place prior to contracting authorities commencing a procurement with a view to preparing the procurement (regulation 40). However, in this case, the ‘market engagement’ carried out was used by the CCGs to establish which provider they wished to award the contract to, based upon what was effectively undisclosed award criteria, and following which the CCGs sought to identify a way to award a contract without competition. The Court held that this amounted to an impermissible attempt to narrow competition. This is likely to cause significant debate around the lawfulness of a contracting authority’s use of a framework in circumstances where it has already, to some extent, determined its preferred supplier. Depending on how a contracting authority selects its provider and the framework to be used, this decision makes it clear that such an approach is at risk of challenge by other providers – including providers not on the framework used to make any award.

Notably, the Judge also concluded that the PCR 2015 do not permit contracting authorities to conduct a mini-competition with only one provider having been invited to take part. The Judge expressly stated that this would not bar a contracting authority from awarding a contract following a mini-competition if only one bid was received, or if only one bidder remained in the competition for some other reason, but that it would be unlawful for a contracting authority to screen out all bidders bar one, and then only invite that provider to take part in a mini-competition.

It was also found that it is possible for a sufficiently strong preference for a particular supplier to amount to a ‘conflict of interest’, even where the staff involved will not receive a direct or indirect benefit from that supplier being appointed, as it was held that such a preference could fall within “other personal interests” (as set out in regulation 24). Again, the strength of preference shown in this case (involving a member of staff passing information on to Cinapsis around a competing bid, and lobbying for its submission on price to be accepted despite concerns) is likely to be exceptional, but it is unclear whether a less strong preference in favour of a bidder, or against a bidder, may still amount to a conflict of interest and require a contracting authority to exclude members of staff from the process. Contracting authorities will need to consider how to identify and manage such issues in future.

Finally, the Judge’s conclusion that a provider which was not a named supplier on the framework agreement utilised could nonetheless bring a claim in respect of damage/losses caused by decisions of the relevant contracting authority regarding the use of that framework (even in circumstances in which he found that the contract being procured fell within the scope of the framework) is likely to lead to providers considering pursuing complaints and claims in a wider range of circumstances than might previously have been the case. While such challengers will still need to show, on the facts, that they have been exposed to a risk of loss by the conduct of the contracting authority, and while the Judge concluded that bidders who are not part of a framework will generally not have been caused loss by breaches relating to the operation of the framework, contracting authorities should be ready to deal with more procurement claims.

If you have any questions regarding this, then please do contact:

“Fun, fellowship and friendship” isn’t a bad motto for any organisation – and it is the guiding principle of the NHS Retirement Fellowship.

The Fellowship was founded 30 years after the NHS – in 1978 – by Irene James, a regional nursing officer in the Oxford area who had been seconded to the Department of Health. She saw the role the Civil Service Retirement Fellowship was playing in helping former civil servants and their dependents make the most of retirement and decided to set up something similar for the NHS.

Many of its initial members were nurses who often had made the NHS their life, remaining unmarried and living in hospital accommodation. Retirement brought massive changes for them – so the Fellowship was particularly valued as a way to stay in touch with fellow nurses and feel a sense of camaraderie.

Today, the Fellowship’s 9000 members are still predominately women but come from a wide range of backgrounds across health and social care, although nurses and midwives are still well-represented. The Fellowship has over 100 branches across England, Scotland and Wales, with members enjoying a range of activities ranging from talks and walks to a book club. Other benefits of the £20 membership fee include discounts on everything from courses to cruises.

“When people retire from the NHS they often say they don’t miss the job but they do miss colleagues and friends,” says John Rostill, recently-retired chief executive of the organisation. “There is no hierarchy in the Fellowship. It does not matter whether you were a nurse auxiliary, a consultant or a former chief executive.”

And he jokes about the lively meetings which result: “People from the NHS are not renowned for their silence, everyone has a view on how things used to be done better. It is a very social environment but we are also helping people at risk from isolation and loneliness. For some of the members, our meetings may be the only times they have contact with other people other than going shopping.

“Their spouse may have died, they may have moved to another part of the country following retirement and this is a good way of keeping in touch and being active.”

Many members have remained engaged with the NHS – as volunteers or helping out with the covid vaccination campaign, he says.

They also featured prominently as the NHS celebrated its 70^th birthday – with some members having worked for it back in 1945 – and are likely to be involved again in July, when it is 75.

The idea of a short story competition came from retired consultant and keen blogger and author Peter Sykes. No one quite knew what to expect but in the end 52 entries were submitted with Lorraine Hoskins, from Coventry, chosen as the winner and presented with her prize at the Fellowship’s conference and annual general meeting.

Hempsons sponsored cash prizes for the winner and two runners up.