Perinatal Institute v Healthcare Quality Improvement Partnership
| Jurisdiction | England & Wales |
| Judge | Jefford J |
| Judgment Date | 26 October 2016 |
| Neutral Citation | [2016] EWHC 2626 (TCC) |
| Docket Number | Case No: HT-2016-000201 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 26 October 2016 |
[2016] EWHC 2626 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Jefford
Case No: HT-2016-000201
Mr Joseph Barrett (instructed by Gardner Leader LLP) for the Applicant/Defendant
Miss Rebecca Haynes (instructed by My Business Counsel) for the Respondent/Claimant
Hearing dates: 5 th October 2016
In this case, the Defendant, Healthcare Quality Improvement Partnership ("HQIP") applies for an interim order under Regulation 96(1)(a) of the Public Contracts Regulations 2015 to lift the automatic suspension of contract award under Regulation 95(1) imposed as a consequence of the commencement of these proceedings by the Perinatal Institute ("PI").
The parties
HQIP is an independent organisation led by the Academy of Medical Royal Colleges, The Royal College of Nursing and National Voices (a coalition of health and social care charities in England). HQIP was established in April 2008 to promote quality in healthcare and in particular to increase the impact of clinical audit on healthcare quality improvement.
PI is a national not for profit company. It describes itself as having a public interest purpose with its primary mission being to enhance the quality and safety of maternity care.
The background
This case arises out of HQIP's procurement of a project to implement standardised perinatal mortality reviews across the NHS in England, Wales and Scotland principally through training and the use of software to enable local and national collection and analysis of data.
It is not in dispute between the parties that rates of perinatal death (encompassing stillbirths and early neonatal deaths) are higher in the UK than they could or ought to be. They are significantly higher than in other developed high income countries. Mr Barrett, on behalf of HQIP, submitted to me that the data on perinatal death rates showed that the lives of 1000 babies a year could be saved in the UK if UK mortality rates were reduced to match those in Scandinavia.
One issue is thought to be an inconsistent approach to review and reporting for perinatal mortality which leads to missed opportunities to learn from such deaths and avoid or reduce the risk in similar instances in the future. This is something which PI has been concerned with for some time and PI has been advocating the improvement of reporting and analysis.
The reduction of perinatal deaths has been identified as a priority in the NHS Outcomes Framework 2016/2017 and, in November 2015, the Secretary of State for Health, Jeremy Hunt, announced targets for a reduction of 20% by 2020 and 50% by 2030. This announcement included the development of a new web-based system to be used across the NHS to enable NHS staff to review and learn from these tragic deaths.
It is this that led to the Department of Health in England and the devolved governments in Scotland and Wales giving HQIP the task of commissioning this project.
Events
An invitation to tender ("ITT") was sent out on 29 March 2016. It provided that the timetable for the procurement was that the contract award decision would be notified on 17 June 2016; the contract would be awarded on 28 June 2016; and the contract would commence on 1 July 2016 for a national roll out in March 2017.
PI submitted a Tender Response Document and Schedule of Offer, as did the consortium led by Oxford University's National Perinatal Epidemiology Unit ("NPEU"). Following the evaluation process, to which I refer further below, the contract award decision was, in fact, notified to tenderers on 30 June 2016. NPEU's was the winning bid with a score of 88.44%. PI's score was 80.24%, a difference of 8.2 percentage points.
Principles
It is also common ground between the parties that the approach to the issue of whether the suspension should be lifted is akin to the application of the principles in American Cyanamid. That this is the right approach in principle has been set out repeatedly by the Courts, including in Openview Security Solutions Ltd. v. The London Borough of Merton Council [2015] EWHC 2694.
The issues I, therefore, have to consider and that were argued before me are these
— Is there a serious issue to be tried?
— If there is, are damages nonetheless an adequate remedy?
— If damages are not an adequate remedy, where does the balance of convenience lie?
Serious issue to be tried
Whilst acknowledging that the threshold test for deciding whether there is a serious issue to be tried is a low one, HQIP have nonetheless argued strongly in this case that there is no serious issue to be tried.
To put this argument in context, it is necessary for me to set out in some detail the relevant facts, the arguments that PI raise in their Particulars of Claim and raised on this application, and HQIP's response.
The Invitation to Tender
Annex B2 of the ITT contained HQIP's Specification for the project. Within Section A: Project specific requirements included Key Requirements. These included:
(i) under "Element 1: web-based tool for perinatal mortality reviews":
"The perinatal mortality review tool is to be developed for use by NHS maternity and neonatal units in England, Scotland and Wales. Data will be inputted by midwives, obstetricians, perinatal pathologists, neonatologists and data clerks. The data will be available locally at unit level.
For each case review the tool will need to be able to produce a taxonomy based on responses to the questions in the data-set, which includes a grading of case and generates a local action plan for improvements in the provision of care. It is expected that the tool will generate reports for discussion and learning within organisations and that there will be a process to feed these reports up to networks
Specifically, following input of the data by the user, the tool will need to be able to:
• be compatible for use across all Trusts and Health boards in England, Scotland and Wales
• prompt for when and how to seek parents input into the review and when to communicate with parents about outcomes
• validate use input and notify errors
• generate case reports listing risk factors and learning actions
• allow users to generate customised report
• generate maternity unit-level reports on common themes and learning actions
• print PDF summaries of records
• have access permission
• enable multiple users to access and input data from different sites, at the same time
• provide system back-up
…."
I have underlined the item that, as will be seen, is relied on particularly by PI.
(ii) Further, under "Information Governance and Duty of candour":
"From 1 April 2015, all registered providers must meet the new duty of candour regulation. The aim is to ensure that providers are open and transparent with people who use services. It also sets out specific requirements when things go wrong with care and treatment, including informing people about an incident, providing reasonable support, providing truthful information and an apology. ….. Bidders must provide details on how they will manage patient identifiable information in England, Scotland and Wales. This should include details on how they would secure approval requirements relating to Section 251 support under the Health and Social Care Act, ….."
(iii) Under element 4: Service user involvement:
"The perinatal mortality review tool should incorporate the parents' perspective about the care they and their baby received during the antenatal, intrapartum and postnatal period and any concerns they raised about their care. However, the parents' perspective will be inputted into the tool through health professionals – parents will not have direct access to the tool.
Parents must be fully informed about the outcomes of the review."
Annex B3 comprised the Tender Response Document. Section 5 was headed Data Security and at 5.2 asked for a response to the following:
"Data confidentiality. How will good practice be followed in ensuring patient confidentiality?
Will section 60/section 251 Health and Social Care Act/ NHS act approval be required from the Confidentiality Advisory Committee (CAG) or will explicit patient consent be sought? Is there a plan for acquiring approval?"
The references to section 251 are to the relevant section of the National Health Service Act 2006. To summarise the position:
(i) Under subsection (1), the Secretary of State may make regulations for the processing of patient information as he considers necessary or expedient in the interests of improving patient care or in the public interest.
(ii) Subsection (4) provides:
"Regulations under subsection (1) may not make provision requiring the processing of confidential patient information for any purpose if it would be reasonably practicable to achieve that purpose otherwise than pursuant to such regulations, having regard to the cost of and the technology available for achieving that purpose."
(iii) Pursuant to this power, the Secretary of State has made the Health Service (Control of Patient Information) Regulations 2002.
(iv) Under these regulations, confidential patient information may be processed for specified types of or aspects of medical research if that processing has been approved by the Health Research Authority (" HRA").
(v) HRA has itself established a Confidentiality Advisory Group ("CAG") to advise it on applications for approval.
(vi) HRA published "Principles of Advice" which sought to clarify the position of CAG in its approach to public interest and "reasonably practicable alternative". Paragraph 2 of this document, presumably referring to s. 251(4), says that: "The regulations cannot be used to set...
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