NHS gives up rights over patient software

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The Department for Health has given up rights over software delivered under the National Programme for IT.

It secured ownership of the NHS programme's intellectual property in 2003 as contractual insurance against the project going wrong. Now the project has gone wrong, it no longer has the insurance.

The Department admitted it no longer had rights over software delivered by Computer Sciences Corporation after it agreed earlier this month an interim resolution to a protracted contract disagreement over the suppliers' failure to deliver NHS software.

The Conservative-led coalition government had made public ownership of software IP the central plank of IT reforms it promised when running for election, when the now chancellor George Osborne said the NHS programme's failure demonstrated the need for government to build systems using open source software.

But by failing to retain rights over NHS software, the government has ensured private rights holders will call the shots in a primary area of public cyberspace.

The Department for Health has rebuffed repeated questions for further information about NHS IP for the last three weeks. It also continues to deflect questions about its renegotiated contract with CSC, which is estimated to be worth £2bn of public money.

The outcome will be that after 10 years of software development - done to public order and paid with billions of pounds of public money - the public will not have bought anything tangible at all.

Yet NHS Connecting for Health had ensured the department would "own the specially written software" delivered under NPfIT, said the National Audit Office in a 2006 report into the programme. This was presented one of four "key safeguards" against project failure.

Parliament verified the ownership safeguard during hearings held in 2008 by the Public Accounts Committee. In a hearing on 16 June 2008, John Pugh MP, now a member of the coalition government, sought assurances that the NHS had indeed secured rights over software delivered under the programme.

Gordon Hextall, then chief operating officer at NHS Connecting for Health, told the Committee: "We certainly own the intellectual property rights, so the intellectual property rights remain with the NHS."

Nevertheless, the Department of Health told Computer Weekly: "CSC will keep the rights to the software after the contract has ended and any licence extensions have been used."

Suppliers may have misled government over what the protection the IP ownership safeguard would really give them.

Dr Tony Shannon, who worked at Connecting for Health on NPfIT requirements and systems design for five years from 2004, said: "Nobody was in a position to challenge the [ownership safeguard claims] because they didn't understand the nuances of software."

In this state of ignorance, the NHS probably secured ownership only over the specification of its requirements for the system - not the system itself, said Shannon, who is working to implement open source software as Clinical Lead for Informatics at Leeds Teaching Hospital.

It must now be asked whether the government actually gave up its rights to NPfIT software or whether it or the public were misled about what the IP safeguard would give them.

Like the Department for Health, CSC has been ignoring Computer Weekly's questions on this matter for more than three weeks. It sent an emailed statement earlier this week, claiming it owned the Lorenzo patient administration system it developed to serve the NHS.

This much is common knowledge. No matter what the Department for Health told Parliament about its rights over NPfIT software, it is obvious NHS has not secured any rights over NPfIT software at all.

Computer Weekly asked both CSC and BT, the other NPfIT supplier, to explain how they ended up bagging ownership when both the NAO and the Department of Health had claimed the contract ensured they would not.

CSC has ignored Computer Weekly's further attempts at communication. CSC's system, called Lorenzo, was developed using UK public money, to a specification designed by doctors and health informatics experts across the country, but is wholly owned by a US corporation.

BT refused to comment about the issue at all. It said the question of its IP ownership over NHS software was a private matter between it and the government.

"It's commercially sensitive," said a BT spokesman.

"This doesn't show contempt for the public at all," he insisted when Computer Weekly pressed him to explain why BT's public contract did not make it publicly accountable.

"Our contract is with the National Health," he said.

If suppliers misled government over what the IP safeguard would deliver, this would amount to a shark card to claim private rights over a public space.

But the government and Department of Health may themselves have misled Parliament and the public over the IP issue.

The National Audit Office said the IP safeguard it described in 2006 had, like all the details in its reports, been signed off by the department.

An NAO spokesman was, however, unable to say whether it had cut-and-pasted the safeguard verbatim from a departmental submission, or whether it was condensed from its own analysis.

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