Briefing from the office of John Healey MP, former Shadow Health Secretary 1 March 2012

Information Rights Tribunal NHS Transition Risk Register

What is the NHS Transition Risk Register? For such a major change as the NHS reorganisation, it is required governance practice for a Department to bring together all risk assessments in one document, called a Risk Register. The Risk Register should set out in simple form a complete list of risks associated with implementation of the project, confirming and giving reassurance that the Department has considered in full what might go wrong, what their assessment is of the likelihood of each risk occurring, the severity of each risk and impact, whether the Department believes each risk is acceptable to take, and what measures have been taken to ensure that risks are minimised or managed. In November 2010, John Healey MP requested under the Freedom of Information (FoI) Act 2000 that the Department of Health (DH) publish the Risk Register relating to the NHS reorganisation in order to inform the growing public and Parliamentary debate. When the DH refused, Healey referred the decision to the Information Commissioner (IC) who ruled in November 2011 that the DH should publish the Risk Register. The Government has appealed against the ICs judgement; appeals are determined by the Information Rights Tribunal. Who is the Information Commissioner (IC)? The IC is the UKs independent authority set up to uphold information rights, including the FoI Act. The IC can investigate complaints when a public authority has refused to publish information, and can make decisions requiring the release of information. The current Information Commissioner is Christopher Graham. He ruled in November 2011 that there was a very strong public interest in favour of the DH publishing the Risk Register. His decision notice is at: http://www.ico.gov.uk/~/media/documents/decisionnotices/2011/fs_50390786.ashx What is the Information Rights Tribunal? The Information Rights Tribunal is the court that hears appeals against decisions made by the Information Commissioner. On 5 and 6 March 2012, the Tribunal will conduct an open oral hearing to consider the Department of Healths appeal against the Information Commissioners decision to require the DH to publish the NHS Transition Risk Register. The Tribunal consists of an expert Judge, Prof John Angel, and two expert non-legal members. http://www.justice.gov.uk/tribunals/information-rights How will this hearing affect the NHS? Hasnt the Bill already been passed? The House of Lords has not yet completed its scrutiny of the Bill. Meanwhile many elements of the NHS reorganisation are being implemented in advance of the Health and Social Care Bill being passed by Parliament a constitutional concern that has been challenged in both Houses of Parliament. MPs and Peers from all three Parties have voiced concerns about the risks from the outset, and have called for the publication of the Risk Register so that Parliamentarians can consider the document. The Report stage debates continue on 6 March when the House of Lords begins scrutiny of the competition clauses in the Bill. Third Reading is expected on 19 March, which could permit the Commons to consider Lords amendments on 20 March and complete the Bills Parliamentary passage before the Easter recess on 27 March. If the Tribunal rejects the DHs appeal and the Government accepts this judgement, then the Risk Register could still be published in time for Parliament to take its implications into account.

Briefing from the office of John Healey MP, former Shadow Health Secretary 1 March 2012 What are the main points of argument? The Government is allowed to refuse to publish information if certain exemption criteria under the FoI Act are met. The case hinges on whether the balance of public interest lies in withholding or releasing the Risk Register for the NHS reorganisation. Having seen the Risk Register, the Information Commissioner concluded that there was a very strong public interest in its publication. There are four main arguments at stake: 1. Whether or not the nature and scale of concern about the risk in the NHS reorganisation is such that it is in the public interest to publish the risk register in order to inform debate, including showing what mitigation plans have been put in place to reduce and manage the risks. 2. Whether or not release of the risk register would undermine the ability of the Department to develop and implement the policy to the extent that publication would be against the public interest (safe space). 3. Whether or not publication of the risk register would be against the public interest by compromising current and future analysis, assessment and discussion of risks in Government generally (chilling effect). What will John Healey say? John Healey will give strong evidence to the Tribunal in support of the Information Commissioners decision to require Ministers to release the risk register on the NHS reorganisation. He will argue that risk has been at the heart of concern about the NHS reforms from the outset. Lack of evidence and confidence about how well the Government was prepared to manage the risks was a major cause of growing professional, public and Parliamentary alarm at the plans in Autumn 2010 and Winter 2011. This concern, and the need for reassurance about the possible consequences, is greater now than when he made his disclosure request. Healey will also say the NHS is an exceptional institution in the hearts of British people, which means there is exceptional attention and concern about the risks associated with any NHS reform. Furthermore, the current NHS reorganisation is unprecedented in nature, scale, pace and timing. The DH has a poor track-record on risk assessment and on the use of evidence in policy making and delivery. With no Green Paper to consult on the policies, no prior involvement with NHS professionals and no piloting or evidence of these experimental reforms working in practice, there are serious grounds for concern about whether the risks have been properly assessed and acted on. For these reasons, the public interest in publishing the Risk Register for the biggest ever NHS reorganisation is also exceptional. He will explain that risk registers are a management tool for implementation of policy, not a document that is central to policy formulation or development for Ministers. Accurate recording, reporting and treatment of risk is not an optional activity for any Government Department. It is a core audit and assurance responsibility overseen by the Permanent Secretary as Accounting Officer, and audited by the National Audit Office (NAO). Healey will say that if the Government loses the Appeal, it must release the risk register directly and in full, for the sake of the public and Parliament. It must not try to drag out the refusal to publish by lodging a further Appeal to the Upper Tribunal. Parliamentarians, NHS staff, patients and the public can then make up their own minds on its content.

Briefing from the office of John Healey MP, former Shadow Health Secretary 1 March 2012

Time table of the Freedom of Information request and the Health and Social Care Bill May 2010: Coalition agreement rules out reorganisation of the NHS. July 2010: NHS White Paper announces overhaul of all parts of NHS provision, commissioning and regulation; consultation on implementation only. October 2010: NHS staff and stakeholders voice major concerns in responses. October 2010: John Healey appointed Labour Shadow Health Secretary, replacing Andy Burnham. November 2010: Healey makes a request to the Department of Health under the Freedom of Information Act to publish the risk register relating to the implementation of its NHS reorganisation (the Transition Risk Register). December 2010: Department of Health announces pre-legislative implementation of changes. December 2010: The Department of Health turned down his application on the grounds that disclosure would inhibit free and frank advice. January 2011: Health and Social Care Bill published. January 2011: Health Bill: House of Commons First and Second Reading. January 2011: Healey requests an internal review of the decision. February 2011 April 2011: Health Bill: House of Commons Committee Stage. March 2011: Department of Health review upheld its initial decision but changed the reason to say that the information was part of policy formulation. April June 2011: Pause in legislation in face of wide chorus of criticism from patients groups, professional bodies and NHS experts. May 2011: John Healey complains to the Information Commissioner. The Information Commissioner then conducts a review of the Department of Healths decision. June 2011: First set of amendments introduced. June July 2011: House of Commons re-run Committee Stage. September 2011: Second set of amendments introduced. September 2011: Health Bill: House of Commons Report Stage and Third Reading. October 2011: John Healey steps down from Shadow Cabinet. Andy Burnham re-appointed Shadow Health Secretary. October 2011: Health Bill: House of Lords Second Reading. October December 2011: Health Bill: House of Lords Committee Stage. November 2011: The Information Commissioner upholds Healeys complaint and requires the Department of Health to publish the Risk Register in the public interest. November 2011: The Department of Health announces it will appeal the decision. December 2011: House of Lords debate on the release of the Risk Register. December 2011: Andy Burnham writes to Chairman of Information Rights Tribunal requesting rapid process for hearing. January 2012: Third set of amendments introduced. February 2012: Health Bill: House of Commons Report Stage begins. February 2012: wide chorus of criticism from patients groups, professional bodies, NHS experts and Peers in all parts of the House of Lords. February 2012: House of Commons debate on the release of the Risk Register. February 2012: Further unspecified changes to legislation signalled by Government. 5-6 March 2012: Information Rights Tribunal to hear the case. Judgement expected within a few weeks. 6, 8, 13 March 2012: Health Bill: House of Lords Report Stage final days. 19 March 2012: Health Bill: House of Lords Third Reading (expected). 20 March 2012 (earliest): Commons consideration of Lords amendments (expected). End March 2012: If Tribunal backs the Information Commissioners decision, the Government will be required to publish the Risk Register. The Government could appeal the decision to the Upper Tier Tribunal, which would ensure any eventual disclosure comes too late to inform public and Parliamentary debate before the Bill becomes law.