Dear Work stream Contributor

NHS Digital (the Authority) have published important draft docuements for comment. The drafts proposed will enable potential HSCN suppliers to assess the various components of the HSCN contracting model relating to CNSP services, and they require industry considered feedback.

The Documents / Products In scope for this note:

The Obligations Framework (OF), the Deed, HSCN Mandatory Supplemental Terms (HSCN MST), Consumer/CNSP contract.

Products out of scope for this note:

All other commercial instruments e.g. Peering contracts, ANM contract

Background:

The HSCN programme has actively engaged with the Innopsis community to discuss and iteratively agree outputs that will underpin the HSCN service.  During these discussions, there has been a focus on a number of products (the ‘Products’) that are commercial in their nature e.g. the Obligations Framework and Deed.  The model including these Products is nearing finalisation and therefore, it is important that the group is aware of and fully understand the final outputs and how they inter-relate.  In addition, the HSCN programme has considered a number of topics that will have an impact on the contractual documentation and so the Innopsis community need to be aware of the rationale for these.

HSCN Programme consideration of items and impact

Since the Innopsis group last met, the HSCN programme has considered the following items which have an impact on the Products:

  • Subcontractors

The HSCN Programme has a key objective to ensure that the end to end service is robust.  It has therefore, been decided that the Authority will require the right to carry out compliance checks on a CNSP’s subcontractors where the Authority considers this is appropriate. To effect this, the governance tab of the OF will be updated to state that:

  • The CNSP will be the prime contractor responsible for delivering the service in line with the OF and the Deed.
  • The CNSP must declare to the Authority any subcontractors utilised in delivering the Connectivity service  and will be responsible for ensuring that those subcontractors comply with the OF
  • The CNSP will sign the Deed to state that they are responsible for both the CNSP’s and the subcontractors’ adherence to the OF
  • The Authority will have the right to carry out compliance checks on the subcontractors as required
  • Only the subcontractors that the CNSP has nominated may be used on the delivery of the services

If a CNSP makes an amendment to the list of subcontractors that it is utilising in delivery of the services, the CNSP will promptly make the Authority aware of the amendment in writing and will not deliver any services via that subcontractor until the Authority’s approval has been received (such approval not to be unreasonably withheld or delayed)

  • Deed Poll Can be down loaded here [download id=”5309″] & [download id=”5311″]

The deed will be executed by way of a deed poll.  The purpose of this is to reduce the administrative and procedural/approvals burden on the Authority that would occur if it signed a deed with each CNSP individually.  This mechanism is purely an administrative efficiency; it does not alter the obligations placed on the Authority or each CNSP under the Deed.

A deed poll is a legal mechanism by which a deed is executed by a single party which may be enforced by a beneficiary.  This means that the Authority will sign its own version of the deed poll as will each CNSP.   The provisions of the Authority’s deed poll and the CNSP’s deed poll will mirror each other.

The obligations under each deed poll are one-way, the beneficiary (or beneficiaries) does not sign the deed poll and has no obligations of its own under it, however may still enforce it. The beneficiaries who may enforce the provisions of this deed poll against the Authority will be any CNSP who has signed a deed poll and is HSCN compliant.

  • Liability Can be down loaded here [download id=”5313″]

The liability flows within the HSCN network have been considered and the supplementary document ‘HSCN Liability Flows Model v1’ provides further detail on the proposed model.  If a failure occurs, this model seeks to place the liability on the party that has the direct control over that element of the service provision.

It also proposes an excusing cause mechanism for suppliers whose service provision is affected by that failure.  In addition, third party rights will be provided to consumers in contracts centrally let by the Authority (where feasible) where service failures could have an impact on those organisations. [Note – it was suggested at the Tech UK event on 13 September that third party rights may be extended to suppliers.  Following discussion with some Innopsis members, it is now believed that Industry’s view is that this is not required.  This is predicated on there being clear service boundaries throughout the HSCN network and SLAs for each of those service boundaries.]

  • HSCN Mandatory Supplemental Terms (MST) Can be down loaded here [download id=”5315″]

The HSCN MST are the terms that must be incorporated into every consumer contract.  It’s the new name for the HSCN Standard Terms and Conditions that are referenced in the OF.  The OF has always contained an obligation (OPNSP.7) for suppliers to incorporate these into their consumer contracts.  The HSCN MST have now been drafted and are being shared with the Innopsis community via this communication.  They are based on the PSN standard terms and conditions but also cover liability and precedence.

Your feedback is very important for NHS Digital and for Innopsis and we are asking for your feedback to be provided by 5:00pm 27th September 2016, we appreciate this is not very long but it will allow initial comments to be considered at the all working group meeting planned for the 29th. Please use the feedback form which can be down loaded here [download id=”5307″] and send to.

hscn.obligationsframework@nhs.net

michael.bowyer@innopsis.org

johnmatthews@nhs.net

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