Andrew Rankin discusses issues related to IT systems integration in the NHS, and some of the associated legal aspects in managing risks and challenges.
The digitisation of healthcare in England remains varied, with different health and social care bodies at different stages of digital maturity. It is, however, generally acknowledged that, after years of under investment in information technology in secondary care for example, many NHS provider organisations still have much more to do.
The benefits of having the right information at the right time for clinicians are well understood – both in terms of quality and safety. For example, effective clinical systems will ensure that professionals document handovers accurately, are accountable and, in the context of integration of care around the needs of the patient, will ensure that it is easier to share information across multi-disciplinary teams working in different parts of the care pathway. At the same time, systems and data have the potential to deliver operational efficiency savings, better commissioning and greater understanding of the health of populations.
Historically, data relating to health of patients was heavily siloed according to organisational structure. That was due in part to the sensitivity of the data collected, and concerns (real or otherwise) about information governance. This approach was also partly due to the sheer complexity and volume of data collected by the NHS. It also reflects the way that systems were often procured in the NHS: system by system, with certain systems used for many years and not replaced. At the same time there has historically been a lack of incentive for NHS boards to make significant investment decisions in large-scale IT schemes, particularly in light of some high-profile failures in the field.
The NHS Five Year Forward View (5YFV) made a commitment that by 2020 there would be 'fully interoperable electronic health records so that patient records are paperless'. In September 2016, the Wachter Review, commissioned by the Department of Health, was intended to provide an assessment of the digitisation of secondary care in hospitals in the UK, and to make recommendations on the way forward. The review follows in the wake of a number of policy and funding announcements, including £4.2 billion funding to support the digitisation of the NHS.
Commentators might be sceptical and feel that the NHS is returning to the same ground on which there have been public statements by government and past failure – the achievement of integrated electronic health patient records across health and social care. For example, many hospitals in England had, until very recently, made little progress beyond so-called 'PAS' (patient administration systems) and PAS Plus replacements alongside specialised departmental systems (and, in some cases, portals which in effect pull together clinical information).
Whilst most organisations are some way off being paperless, many secondary care organisations are progressing, or have plans or ambitions to progress clinically-rich electronic patient record systems across their organisation – the cornerstone of any ambition for a hospital to go digital. Local procurement by local NHS organisations means that the NHS procures different kinds of systems or solutions, and local entities find answers to suit the needs of their organisation and or populations.
We would expect the number of NHS organisations looking at so-called population health management tools to grow. These tools aggregate patient data across multiple health technology resources (fully implemented from secondary care, primary care, social care, and mental health and community services) and include that data in a single patient record. Such systems are potentially extremely powerful in contributing to the vision of joined-up healthcare. A single patient record allows clinical users to monitor and identify patients with, for example, particular chronic conditions across care pathways and at the same time produce analytics to help with population health that can assist in disease prevention.
The procurement exercise used to select a supplier should be used in the right way – to identify and agree key risk allocation points on deals, to flush out issues before they occur, and to gain common understanding.
Increasingly, the market is looking towards framework contracts for the procurement of digital systems that can be utilised by suppliers, providing what should be a swifter route to market for both suppliers and buyers. This brings with it (in effect) centralisation of certain aspects of contract negotiation, and to some extent we can expect consolidation of the market in the longer term. Suppliers of clinical information systems are likely to have to find a place on the relevant framework contract in order to operate credibly in the NHS market which is relevant to their product. However, if framework contracts are used, NHS bodies should not automatically assume there is nothing further to do – complex system integration procurements require a level of engagement between buyer and customer – within the confines of public procurement law.
Often implementations of clinical information systems are in effect significant change projects for the NHS; not only will front-line staff be taken away from their day-to-day roles to receive training or to engage in the programme of implementation (and those roles may need to be 'back filled' to maintain continuity in front-line healthcare services), but implementation tasks and responsibilities will need to be performed by the customer, investment decisions made (eg purchase of server licences), and the move to a new clinical system will entail the buying organisation changing many of its working practices (and this of course may be part of the business case for making the investment). Buying NHS health bodies must plan for the amount of resources that they will need to put forward to deliver successful projects.
That means that organisations need to identify suppliers who are likely to support them when implementing complex systems. If, for example, a hospital is implementing a complex electronic patient record system, the process is unlikely to be straightforward. Trusts need to find suppliers who are not looking for ways out of contractual obligations, or continuously seeking changes for which they can charge. Allowing a supplier to believe that the terms are not so onerous and this is also a good deal for them (rather than for example a deal where they have too heavily discounted their pricing with little incentive) is likely to help in that.
Once the deal is done lawyers regularly hear that clients want to put the contract in a drawer (and by implication allow the contract to be forgotten about). However, once implementation of the project is complete, it must be recognised that going live with a system is the beginning and not the end of implementation of health information technology and accordingly the contract with the supplier ought to evolve and document the then current state of the parties' relationship (failing which there may be risks to both customer and supplier). For example, new phases to the roll-out, new integrations with third-party systems, new training programmes, new releases of the software and implementation thereof and hardware that may need to be upgraded all necessitate change, as does the situation where the customer seeks to roll out new functionality and features in software that were 'switched off' when first implemented or are part of a future development.
Andrew Rankin is a Legal Director at DAC Beachcroft: firstname.lastname@example.org