NHS trusts hit by delayed or troubled implementations under the £12.4bn National Programme for IT (NPfIT) have begun seeking compensation. But they have been told they cannot seek legal redress from suppliers without the government's specific consent.
Computer Weekly has also learned that some boards of trusts that have sought compensation have received none so far.
As part of the NPfIT, participating trusts are expected to spend at least £3.4bn locally on implementing systems bought by Whitehall.
Trust executives operating outside the programme can turn to their contracts with suppliers to seek legal redress for poor systems or software. But for systems bought under the NPfIT, trusts are only third parties to the main NPfIT contracts, which are between the government and the principal suppliers - BT, CSC, Fujitsu and Accenture.
To sue suppliers, trust officers have learnt that they need the specific consent of the secretary of state for health, who holds the contracts with the NPfIT's main suppliers.
Dai Davis, IT legal specialist at law firm Nabarro Nathanson, said, "While it would appear that some rights have been given to health trusts, it is unclear whether they have sufficient protection. It seems that the trusts may not have the freedom to sue a service provider without the consent of the contracting authority."
Davis said there did not appear to be a transparent mechanism by which the trust would know whether a service provider was in breach of its contractual obligations.
The board of East Lancashire Hospitals NHS Trust expressed concerns about NPfIT suppliers after the introduction of a patient administration system was delayed four times. Its executives wrote to Connecting for Health, which runs the NPfIT, detailing its costs to date and querying reimbursement arrangements.
Last week the trust confirmed that it had not received any compensation over the delays.
Executives at Nuffield Orthopaedic Centre have also called for compensation from NPfIT local service provider Fujitsu, over problems the trust encountered after implementing the Care Records Service.
A meeting of the trust's audit committee reported that Nuffield was unable to follow up the question of redress against Fujitsu because the trust was not the contract holder.
Weston Area Health Trust in Weston-super-Mare put a case to its strategic health authority over delays in NPfIT roll-outs. Last week a spokesman for the trust told Computer Weekly, "We have been in discussions over the past few months regarding costs incurred through unavoidable delays to implementation. Due to the reorganisation of strategic health authorities, this remains ongoing, but it will be followed up."
A spokesman for Connecting for Health confirmed that if trusts wanted to take action to recover direct costs they needed first to obtain government consent. But he said trusts operating outside the NPfIT typically had less redress against suppliers than was possible under the programme.
"With regard to stronger contractual remedies against suppliers under the National Programme, we have already seen that the new contracts provide this possibility for trusts." The spokesman said that Connecting for Health was expected to recover more than £500,000 from CSC after systems at its Maidstone datacentre failed, affecting 80 trusts for up to four days in August.www.connectingforhealth.nhs.uk