Transparency (or not) in the Health and Social Care Act

The on-going refusal and recent veto of a Freedom of Information request for the Health and Social Care Act risk register by the Government has been a startling and politically unusual incident. What does this augur?

The risk register is a document that outlines the likely risks and potential casualties (such as NHS nursing jobs) that will be caused by changes to the NHS stemming from the Health and Social Care Act.

Attempting to veto its release would seem a very strange step indeed.

The Freedom of Information request was made by John Healey, the former shadow health secretary, and in turn the Government had made an legal appeal against it's release in March 2012.

Healey has been quoted as saying “This is a desperate act which will backfire badly. It is an admission of defeat on the legal arguments for public release."

”The appeal was lost and it was ruled that the Government should release the information as requested. Instead of complying with this legal ruling, the Department of Health has refused thus far to release the document and recently took the unusual step of vetoing it entirely. The current health secretary, Andy Burnham, deemed the on-going refusal an “outrageous insult to [the process of] parliament”.

This kind of veto has only been used three times since the 2000 Freedom of Information Act; twice concerning Scottish devolution and once concerning the Iraq War.

It is designed to be used in 'exceptional circumstances' and the information commissioner is due to present a formal report soon determining if circumstances were indeed exceptional.

A spokesperson stated that the previous refusal to release was due to the Department of Health wanting to understand the details behind the court ruling before complying with it.

Moreover, they cited concern for the impact that releasing risk registers may have on the process of developing bills, suggesting that they would become “anodyne” and inoffensive.

Concerns surrounding the Government's proposal for the Health and Social Care Act have mounted during since it's introduction in January 2011, particularly as the idea of the Bill was not mentioned in general election manifestos nor the coalition agreement.Broadly, it will remove PCTs and SHAs and give their funding to CCGs (Clinical Commissioning Groups), partially composed of GPs.

It will also alter NHS language to allow commissioning groups to commission services from “any willing provider” instead of the current “any qualified provider”.

This change is designed to increase choice and decrease bureaucracy but critics are concerned that a competitive market of “any willing provider” for services will prioritise cost as a determining factor for service provision, rather than aptness or genuine service user choice.

This change could also instigate some economic instability. The “any willing provider” model removes contractual obligations to pay for a certain level of services. Instead, the NHS does not have to pay X amount for Y services and the providers are paid on an individual usage basis.

For instance, those in NHS nursing jobs could end up either highly over-pressured or twiddling their thumbs as public choice regarding their nursing will be unpredictable and without contractual expectations.Andrew Lansley, the Health Secretary, called himself a “firm believer in great transparency” but argued that ministers needed a “safe space” to hash out plans without civil servants “worrying” about how they were worded.

It is possible the register will be released in the future under the '30 years rule'. This rule refers to when Cabinet documents are moved from a secure, private holding into the National Archives.

However, the Government can decide that certain documents still are better kept undisclosed.

Andrew Lansley has gone on to state that he will publish a document of information that explains more about risks in the register and what the Government has done to deal with them.