Department of Health gave false assurances over NHS software

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Officials falsely claimed the NHS had protected its £7.3bn investment in the National Programme for IT by staking ownership over any software it produced, it has emerged.

Contrary to earlier statements, the NHS never had ownership rights over its software, the Department of Health said today in response to a Freedom of Information Request.

The Department of Health had contracted CSC and BT to produce complex patient software systems for use in hospitals and other health trusts around the country. It agreed to pay them billions of pounds and in return - it was thought - would own anything they produced. But it didn't happen.

The Department of Health said the suppliers still owned the software they produced under the programme - and they had always owned it.

"The CSC Group is the ultimate owner of the intellectual property rights in Lorenzo," said the Department in reference to Computer Sciences Corporation, the company contracted to deliver patient systems to the North, Midlands and East of England.

"[CSC] will keep the rights to the software after the contract has ended and any licence extensions have been used.

"The position under the Interim Agreement with CSC has not changed from that agreed in the original contract. This is, that the NHS has acquired a permanent right to use the Lorenzo software at all sites where it is rolled out."

"In the original negotiations the Authority secured the ability to use Lorenzo on a "non-exclusive, perpetual, irrevocable and royalty-free" basis and hence can continue following the end of the term "subject to payment of the relevant Service Charges".

False assurances

When the National Programme was looking shaky in 2006, the National Audit Office assured that the Department of Health had staked ownership over its software. This was one of four safeguards it said would save the programme if suppliers failed to deliver.

One of those safeguards was: "The Department owns the specially written software."

The others safeguards in the infamously tough contract allowed the Department to step in and manage the primary contractors' supply chains if they failed to deliver, to send in auditors, and to force them to help others take on their work if it chose to terminate their contract.

NHS IT boss Gordon Hextall confirmed in a 2008 hearing that the NHS had secured ownership of all software produced under the National Programme.

Yet now, six years after CSC and BT were meant to start delivering patient systems to English hospitals, the NHS is still waiting on them. The National Audit Office said last month that BT had yet to deliver 98 per cent of the benefits it was contracted to deliver to hospitals and other trusts in London and the South in 2003. CSC had still to deliver 86 per cent of benefits to trusts in the North, Midlands and East.

When the NAO last did a comprehensive report on the NHS Programme in 2011, 84 per cent of hospitals were still waiting for delivery of patient systems. (By focusing in its update last month on vague "benefits", the NAO precluded the possibility of any meaningful measure of progress since 2011, when the coalition government put the NHS programme on hold). Hospitals have since been scalded for having insufficient patient data.

Despite BT and CSC's ongoing failure to deliver patient systems, the Department of Health has been powerless to do anything about it.

It has been unable to expel the contractors and take its software in hand, as promised by the safeguards reported by the NAO in 2006.

The Cabinet Office is still negotiating its contract dispute with CSC, three and a half years after it began. CSC is meanwhile selling Lorenzo, the NHS software, in other countries.

The coalition government has meanwhile been unable to deliver its promise to reform IT in the NHS. Software ownership rights were central to the Conservative Party's proposals to reform the ill-fated NHS IT programme, and the basis of its critique of the last government's track record with large IT projects.

The NAO was unavailable for comment.

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