Time to get tough

As if managing year 2000 wasn't enough. Trusts. health authorities and primary care groups are working together to connect every GP to the NHSnet by March 2000, set up the NHS Direct phone-in service nationwide, and provide electronic patient records (EPRs) at every GP surgery. A massive and potentially very costly human resource issue is raised over year 2000 itself by the need to have staff such as maintenance operatives working to ensure continuity of operation at a time when they would not normally work. But the focus has been on the compliance of systems, despite the need to pay scrupulous attention to these other issues.

NHS Confederation policy manager and year 2000 spokesperson Tim Jones says that EPR "will only get in the way", and that year 2000 "should be the top priority". In order to realise the essential infrastructure necessary for the EPR and NHSnet schemes, project managers will be required to oversee every aspect, yet they are also expected to direct year 2000 projects, and there is a potential danger of inefficiency due to work overload. Jones says "these are major projects in terms of management time".

The major logistical problem of human resources over winter 1999/2000 is focusing contingency planning on staff as well as equipment. Jones predicts the biggest cost may be in human resources, and says the "agenda is moving in that direction".

Rachel Carter, of the year 2000 team at NHS Estates, says that that the Agency has an "integrated approach to operational continuity of the NHS, not concentrating on compliance of individual systems, but addressing the availability of all the services on which clinical processes depend. For example a ventilation system isn't a priority in its own right, but if an operating theatre can't function without it then it becomes very important". However she also says that while information on "several hundred" systems is available on the NHS Estates website', the organisation has had "a disappointing response" to its request to NHS organisations to send in information from suppliers.

While the NHS has been praised across the globe for the diligent way it has grappled with year 2000, (despite what the Public Accounts Committee said was a "late start"), the guidance from the centre, though comprehensive, hasn't always been clear. Ambiguities have had to be cleared up, eg in the NHS Executive's Silver Bullet 5 year 2000 newsletter. Confusion existed over whether the date for full contingency plans set out in Health Service Circular (HSC) 1998/091 was 31 December 1998 or 30 September 1999. Silver Bullet 5 states some trusts "have interpreted the HSC as meaning that there must be plans for critical systems by the earlier date and non-critical systems by the later".

The document then states the "intended meaning" in the HSC passages covering the deadlines - ie that plans must be complete by 31 December, but must be actually in place by 30 September 1999. However leaving such meanings open to interpretation provides a loophole for those who would prefer to leave risk management of non-critical systems until after 31 December, given the current failure of many suppliers to provide compliance information.

The struggle to extract information from suppliers is still proving difficult. In many cases they are wrestling with the suppliers of their own IT equipment, but this does not directly affect their ability to provide guarantees or otherwise on their medical devices or estates systems. One must assume that in many cases they simply don't know whether their systems will pass the test, and thus cannot offer guarantees. Given the short space of time left, it is unsurprising that the focus has been placed on contingency planning, especially in estates systems, where the likelihood of embedded systems crashing is hard to predict, and even locating the chips may require much time-consuming effort. Labour's year 2000 spokesperson Margaret Beckett recently said that organisations must focus on the critical systems, and this has been corroborated by Robin Guernier, head of the previous government's Taskforce 2000. He told HD: "All you can say to managers is decide what impacts on patient care...we can't do it right, just do the best we can".

Adam Taylor, a partner at Withers solicitors, emphasises the importance of documenting everything. He says: "It would be helpful if trusts have properly documented plans to show the steps taken. This won't shift liability in all cases, but it may help in [avoiding] negligence...showing that the trust took reasonable care". He however warns that it will not be enough to send a letter to the supplier demanding compliance information and expect the liability then to rest with them. "The important thing," says Taylor, "is not to waste time haggling about legal issues". He says that after speaking to trusts about their progress, he sees obtaining supplier information as a major obstacle to meeting deadlines.

The trust needs to protect its interests however: "It may be that the supplier is responsible beyond 2000 and charges a hefty sum for upgrades," says Taylor. In the face of a potentially hostile and inevitably time consuming battle with suppliers, he suggests trusts band together to present a united front to common suppliers to in effect prise details from them. "The reluctance of suppliers to provide information is a major problem. Trusts using the same systems need to join forces - this will make it more likely to get a satisfactory response," he says. "If a supplier proves unhelpful they could be removed from the approved list," he suggests, as a possible 'incentive'.

Currently many trusts are duplicating effort and though the centre (NHS Estates and NHS Supplies for example) are having dialogues with suppliers, it appears to be uncoordinated. Robin Guernier agrees that trusts should work together, but says that "coordination would be hard to achieve". He takes the simple approach of "Get it fixed, and worry about the legal issues later".

LEGAL ISSUES

A problem which will emerge as the legal minutiae are thrashed out before and after the date change will be the issue of "fit for purpose". As Adam Taylor says, "Usually the supplier is responsible for chips, under the Sale of Goods Act". Liability for failures however is usually decided on the basis of what was the "reasonable" amount of time it could be expected to last.

Another crucial factor is resolving whether the six-year legal time limit from breach of contract enables a case to be heard, especially regarding whether the latter occurred when the system fails, or when it was bought with its latent defect. If it is considered to be when the system crashes, the buyer could be in with a chance of winning, but the only certain thing is that thorny problems such as these will mean that lawyers will certainly have something to celebrate in January 2000, even if nobody else does.

Involving lawyers at this stage has some added advantages however, for instance that they can arrange for the clock to be stopped on the time limit, but only with agreement with the supplier. Sadly the big deadline is immovable.

References

1 NHS Estates website: www.demon.co.uk/nhsestates/ year2000.htm

Copyright Wilmington Publishing Ltd. Nov 1998
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