Health data campaigners are preparing for a legal challenge to the £330 million ($417 million) procurement of the Federated Data Platform (FDP) by NHS England, awarded to US spy-tech firm Palantir last month.
The group led by Foxglove alleges there is no lawful basis to create the FDP, as described in procurement documents, within the current legal directions NHS Digital uses to obtain and share data within the NHS.
According to NHS England, the “data platform” is the software it plans to use to help NHS organizations collate the operational data currently stored in separate systems in order to help staff access the information they need. This data includes the number of beds in a hospital, the size of waiting lists for elective care services, or the availability of medical supplies. The idea is every hospital trust and integrated care system (ICS) will have their own platform, but they will be able to connect and share information between them.
The controversial contract is set to last up to seven years. NHS England said the new data platform would deliver better joined-up care for millions of patients, help tackle waiting lists, and reduce hospital discharge delays. Waiting lists in the country have been at record levels since the pandemic.
However, four campaign groups – Foxglove, the Doctors’ Association UK, National Pensioners’ Convention, and patient organization Just Treatment – plan to challenge the legal basis for collecting data from hospital trusts and GP surgeries (data from family doctors may be used “locally” within the system).
Although they are yet to bring action to request a judicial review of the project, the group has issued a statement claiming there is no lawful basis to proceed under the current legal directions the government uses to manage health data. They claim that the government needs to introduce new legislation in Parliament for the FDP project to go ahead legally. The group has set out details of its objections in a pre-action legal letter requesting more information from NHS England.
In a statement to The Guardian, NHS England said it has the legal authority to press ahead with the FDP without further legislation and the legal concerns were “totally incorrect.”
An NHS spokesperson told the newspaper: “This letter fundamentally misunderstands how the Federated Data Platform will operate and is totally incorrect in both matters of law and fact. The platform will use only existing data legally collected by the NHS to support direct patient care, which is lawful under all relevant data protection regulations.”
In its pre-action letter, Darryn Hale, the DAC Beachcroft solicitor representing the campaign groups, pointed out that the current legal basis comes from Establishment of Information Systems for the NHS Services: Data Services for Commissioners (Directions 2015), and section 259 of the Health and Social Care Act 2012. Together, they create a model where local health commissioning – the directing of care services performed by Integrated Care Boards since July 2022 – can share data with each other via a central control hub. The FDP model proposes that commissioners have access to data without that central hub, the letter says.
The Register has asked NHS England for a detailed rebuttal of the campaign groups’ legal claims.
NHS England has previously agreed to consult the public before expanding its use of Palantir’s software following the threat of a judicial review. In 2021, it made the commitment not to offer firms like Palantir a long-term NHS role without consulting the public and that it would not expand Palantir’s work on the NHS datastore beyond COVID-19 without notifying the public. At the same time, it agreed to engage citizens about Palantir’s role in the NHS via patient juries.
The move followed action by the news website openDemocracy, backed by Foxglove, seeking a judicial review of the UK government’s decision to award a £23 million ($29 million) NHS contract to Palantir without competition during the COVID-19 pandemic. Some of the functionality from that platform is set to migrate to the FDP. ®
