NHS England Palantir contract extension could result in further legal threats

Campaigners have warned publicly funded healthcare system NHS England that extending its contract with Palantir without meaningful consultation with patients could lead to a challenge in court.

Following the quango's decision to extend its controversial contract with the US spy-tech firm by six months – and £11.5 million ($13.68 million) in value – the data privacy and legal group Foxglove has said NHS England had not met the terms it agreed in March last year following a legal challenge.

We're old enough to remember the promises in their original blog – that this unprecedented new pool of health data was an emergency response and would be unwound at the end of the pandemic

In March 2021, the UK government promised not to expand the roles of Palantir's NHS England database without public consultation under threat of a judicial review from news website openDemocracy, backed by Foxglove.

Yet NHS England has awarded the data analytics firm – which started out creating bespoke solutions such as digital-profiling tools for the CIA and US immigration agency ICE – a contract extension well beyond the terms initially set out for the system.

During the height of the pandemic in the UK, officials had promised in a blog to "cease processing and to either destroy or return data to NHS England" after the pandemic. COVID-19 restrictions are no longer in place in the UK.

In an email to The Register, Foxglove director Cori Crider said: "We've not seen any of the consultation they promised during the last legal round over the COVID data store. It looks like they have walked back the promises they made in that case.

"You notice they no longer call it the Covid datastore! We're old enough to remember the promises in their original blog – that this unprecedented new pool of health data was an emergency response and would be unwound at the end of the pandemic. It's almost as if the officials seeking to grab data and make it accessible to central government were gaslighting us all along," Crider said.

"If they keep ploughing on with a permanent system without offering meaningful patient choice, they are going to wind up in court again."

NHS England has denied it was forced to agree to a public consultation following the threat of judicial review of the COVID-19 data store but has yet to produce evidence in the form of legal correspondence.

Its position comes as NHS England promises to launch a competition for a £360 million Federated Data Platform (FDP) designed to help support reform and cut care backlogs throttling England's health system.

The contract notice, which kicks off the official competition, was expected in June 2022 but was delayed until September, when an NHS England told The Register it would be published. The notice has yet to appear.

Officials told The Register to expect the procurement to be launched "in the coming weeks." The same message was given to the Financial Times in November last year.

The government has also refused to run a public consultation on FDP as an expanded use of centralized data analytics on personal health information. In July last year, Minister of State for Care and Mental Health Gillian Keegan told Parliament that NHS England was not proposing to conduct an open debate on the nature or remit of the FDP.

Despite the delays, the controversial data platform remains part of NHS England's plans. In its 2023/24 priorities and operational planning guidance [PDF], it said the FDP would support "nationally developed functionality including tools to help maximise capacity, reduce waiting lists and coordinate care."

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• Palantir's Covid-era UK health contract extended without competition

It also promised to "accelerate the ambition of reducing the reporting burden on [care] providers and addressing the need for more timely automated data through the Faster Data Flows (FDF) Programme, which is separate but linked to the FDP, and already the subject of a legal warning letter.

Campaign groups including the Doctors' Association UK, National Pensioners' Convention, and Just Treatment have written to NHS England warning of its use of "an extensive and extremely sensitive set of data" by Palantir without appropriate legal safeguards.

With the help of Foxglove, lawyers representing the groups have written to NHS England seeking reassurance over its use of the data which include individual patients' NHS numbers, date of birth, postcode, local patient identifiers and data about their admission, inpatient, discharge and outpatient activity.

At the time, an NHS spokesperson said: "By collecting data in a more streamlined way, the NHS is better able to plan and allocate resources to maximize outcomes for patients, whilst ensuring that data control remains with the NHS at all times.

"Ultimately, it will help all NHS organizations to better understand their waiting lists and pressures in near real-time, work as systems, and the burden of manual reporting on staff will be significantly reduced." ®