Charlotte Lewis: Hello, and welcome to Talking digital health, a podcast by law firm Mills & Reeve, hosted by health and tech lawyers, Sophie Burton-Jones and Charlotte Lewis.
Our aim is to discuss key topics of interest to those procuring tech in the NHS and those selling tech to the NHS.
I'm Charlotte Lewis.
Sophie Burton-Jones: And I'm Sophie Burton-Jones, and we're your hosts for this episode.
And today we're delighted to be joined by Gayle Curry, who is a healthcare and health tech partner here at Mills & Reeve, one of our colleagues who we work with quite closely.
And Gayle works with existing and new suppliers to the NHS.
Hi Gayle.
Gayle Curry: Morning, great to see you both.
Sophie Burton-Jones: Thank you for coming along. In this episode, we're going to be talking about NHS pilots from a tech supplier perspective.
Now, we have got a previous episode, episode 10, where we talked to Rishi Das-Gupta and Paul Jones live from HLTH Europe, where we talked about pilots from an NHS perspective. But today we want to talk about it from the tech supplier perspective instead. So, you know, if you're a tech company trying to get into the NHS or trying to expand and scale up in the NHS. So, let's go straight in, shall we?
So Gayle, what is a pilot and do you think it's a good thing for a tech company?
Gayle Curry: It can be a good thing for a tech company, but I think the tech company needs to be eyes wide open when it goes into a pilot.
So, if a tech company thinks it's a great way to get my tech bought by the NHS, you're barking up the wrong tree. That's absolutely not the right thing. Not least because, of course, the NHS is covered by public procurement legislation, and there's no guarantee that they can buy your tech at the end of the pilot. So be really clear about what you want to get out of the pilot and choose your NHS partner wisely and be cognisant of the fact that they may not have budget and they may not actually be able to buy the tech from you.
They may have to run some kind of public competition.
Sophie Burton-Jones: Yeah, and that's one of the things that we did talk about in the previous episode in terms of what do we mean by a pilot? Actually, it's a research opportunity or a chance to showcase, but it's not going to guarantee you any sort of contract long term.
Gayle Curry: Yeah, that's right. And, you know, there are various routes to market in the NHS, and a pilot is just one of them. Partnering with an organisation that's already supplying is a much better route if ultimately what you want is your product to be purchased.
But if you want to do the pilot because you're creating an evidence base for regulatory approval, perhaps, or for marketing purposes, or it is a genuine evaluation of your product and the NHS does want to try before they think about running a competition to buy it. then it can be a really good thing to do. But just beware if you're a tech entrepreneur or a tech startup. The NHS is really busy. Teams change all the time. And you really need to understand what their objective is as well as what your objective is before you go into the pilot.
Charlotte Lewis: So, if you are running a pilot, then how would you set one up for success? And I guess it depends on what you deem by success, but how would you go about doing that with those eyes wide open?
Gayle Curry: I think that's a really important point, Charlotte. You have to work out what is your objective, first of all, and what does success look like? And you work back from that point.
So you have to build a relationship with the NHS partner you're going to be working with during the pilot. Try to become a helpful member of their team. Recognise that they're busy, they're pulled in lots of different directions. Yours is probably not the only pilot they're running. There is a term in the NHS, everyone complains about pilotitis, meaning there's hundreds and hundreds of them and they're almost infectious, so just be cognisant of that.
Be really clear on what the governance around the pilot project is. So who are your stakeholders, who's managing the pilot from the NHS end. Who's managing it from your end? Be aware that priorities and roles change quickly so people can be switched in and out of teams all the time.
Make sure that you have properly documented the pilot and you have the right stakeholders around the table to kick the project off.
Sophie Burton-Jones: Obviously, documentation contracts are at the heart of what we do, so we're really interested in that. But what would you expect to be in a contract or a document kind of detailing a pilot or a proof of concept?
Gayle Curry: Yeah, it doesn't have to be a great long document. The NHS uses service level agreement, MOU and contract interchangeably. It doesn't really matter what it is called, provided the relevant parts of it are contractually binding on both parties. So it doesn't matter what the heading of the document is, but various parts have to be contractually binding.
But I would start off by standing back from that and just setting out what each party's objectives are. Have a realistic implementation plan that you both agree.
Set out what the governance around the pilot is. So who are the key stakeholders and who's going to actually manage it from the NHS side and from your side?
Be really clear about what your solution is and what your licence terms are. They're the parts that are really important to be contractually binding.
Be clear about the duration. So how long is the pilot going to last?
Are you going to charge for your services or not?
What are the KPIs? So as Charlotte was saying, it's really important to work out what does success look like? And your KPIs, your key performance indicators will describe those. So what is going to be measured and what does success look like for each party?
Then you can think about, well, if the pilot is successful, if it meets or exceeds the KPIs, what next? You may get something that looks a bit like an agreement to purchase at some future point, but be aware that that's not going to be enforceable. It's just an agreement to agree or an agreement to run a competition that you may be able to participate in.
Yeah, just be really conscious of the fact that the NHS probably cannot move to a full paid-for contract with you, even if the pilot's successful at the end of it. So make sure that you are really clear about what you need to get out of the pilot and bake those things into the contract. So, for example, if you want to measure return on investment, you need to be really clear with the NHS about the baseline data you need before your solution is implemented.
And don't be surprised if the NHS doesn't necessarily have that baseline data. You may spend, for example, phase one in the first quarter of your year just gathering that baseline data from which you can then measure the success of the pilot.
Sophie Burton-Jones: Yeah, it's a really good point. And ROI is becoming more of a focus for technology in the NHS generally, even if you've actually got it in there showing that long term as well.
Gayle Curry: Yeah.
Sophie Burton-Jones: And the other thing I was just going to mention as well is I guess it's linked to the point about success is publicity, or being able to act as a reference site or a case study that if you're going to need that, going forward, make sure there is something about that in the contract and it's clear what that means.
Does it mean somebody can come on site and talk to the NHS organisation that you've done the pilot with? Is it a standard statement confirming that they are willing to have their name used? There's quite a lot of difference there, isn't there?
Gayle Curry: Yeah, yeah, there is.
And we know, you know, tech companies love having the NHS logo on their site to say the NHS is a customer because it carries a lot of kudos, doesn't it? But you do need permission for that, and that permission needs to be written.
Charlotte Lewis: And on the subject of contract reform, you mentioned about sort of, you know, the NHS loves to use MOUs, SLAs or... whatever the agreement is called, it almost doesn't matter. But are there any forms of contract that you would say aren't suitable for pilots and people to be sort of wary of using that aren't appropriate? And yeah, anything we can offer in terms of our experience around that?
Gayle Curry: Yeah, yeah. So we often work with two forms or three forms of contract with the NHS. There's the NHS standard clinical services contract. That is not appropriate for a pilot. It's a very lengthy, complex document. And I would say if you're a tech supplier, you definitely shouldn't be using that contract as a basis. And trusts are aware of that and they generally won't look to you to use that contract.
But there are two other forms of contract.
They're prescribed models by the Department of Health. They don't have to be used, but trusts in particular like using them. And they're the model contract for services or the model contract for goods and services. And again, they're lengthy, complicated documents that I'd say are useful for a full-scale tech project that's been paid for with the NHS.
But if you're looking to do a short-term pilot, I wouldn't use one of those. I would look to your legal adviser to produce a short-term pilot agreement for you.
Charlotte Lewis: Yeah, something that's much easier to manage, much more straightforward, and it's more appropriate proportionate to the work that's being done, really.
Yeah.
Gayle Curry: Yeah, yeah.
But that covers the essential legal things you need to cover. Like, for example, if it's a software licence, the licensing terms, the data privacy terms and the KPIs, I would say they're the really crucial elements to look for in a contract.
Sophie Burton-Jones: Then I guess if you're kind of getting into AI, there's a load of considerations there in terms of ownership of inputs and outputs and anonymisation, whether it can be used and whether input data can be used for, you know, the wider algorithm and all of that kind of thing that would also need to be thought about.
It doesn't need to be in lots and lots of detail, but it does at least need to be thought about and recorded.
Gayle Curry: I think that's right. And the point you make about ongoing use of data for machine learning is absolutely critical. That's often forgotten about. But if your software is learning as it goes along, you will need the right to use the data that you collect as part of the pilot, as part of that machine learning process.
Charlotte Lewis: It is an interesting area in its own right. It feels like it's right for its own little podcast, I don't know, but yeah, certainly AI and thinking about contracting for AI is an interesting area.
We're going to take a short break now and when we return, we'll delve a little bit further into those other routes to market and also we'll have a bit of a chat about the NHS 10 Year Health Plan.
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Sophie Burton-Jones: So welcome back to this episode of Talking digital health. We're talking to Gayle Curry about pilots, approaching at it from a tech company perspective this time round.
We're talking about kind of setting things up for success, but now we want to kind of talk about actually is a pilot the right route at all or should we, are there other ways to get to market or get what you need? So Gayle, what do you think? I know we talked about it very briefly, but could you expand on that a bit more on potential other options for going to market?
Gayle Curry: Yeah, I think, I mean, there are better options for going to market, assuming you've got your marketing data and you've got your regulatory approval. I would say the best way in is to find a partner that's already delivering services to the NHS and partner up. It may be that they are already on a framework like one of the G-Cloud frameworks. and they're already supplying.
They may not yet be supplying, but your product may help them become a supplier. And many small tech companies get into the NHS through doing exactly that. It's a much better way to do it than either running a pilot or tendering for a project yourself. Tenders can be great opportunities, but they are incredibly time consuming to run.
And I have seen tech companies trying to pitch for three or four contracts at the same time. And then you take your eye off the ball and all of your time as a startup is spent tendering. So it's not a good use of your time. Be really selective if you are going to tender. But partnering is always a great way in.
Sophie Burton-Jones: Yeah, because it gives you access to your partner's users and user groups. And if they can't necessarily get you into a contract immediately, they might be able to get you involved in their sessions, their groups that they run so you can get the inside track on what people do and don't care about through that type of thing.
Gayle Curry: Yeah, it certainly broadens your reach into the NHS, particularly if your product is very compatible with the partner's product. So it's a nice add-on for the NHS to have. It just makes it very easy for the NHS… Oh, sorry, it's never very easy for the NHS to purchase, but it makes it much easier if they can purchase through a partner that is already on a framework, for example, because you would become their material subcontractor and there's a recognised formula for doing business that way.
Sophie Burton-Jones: But I guess to bear in mind when you're looking at that then, you'll need to look at what your contract terms with that partner are and be cognisant that they might be slightly limited in terms of what they can and cannot negotiate with you if they are on a framework and you're kind of the subcontractor under that.
Gayle Curry: Yeah, that's right, because they will want to flow down their obligations under the head contract to you as the subcontractor. And for you as the subcontractor, you need to make sure that those obligations are proportionate to the service you're supplying, and it's not necessarily a straight pass down of all of those obligations. So we'll need to look at the subcontract arrangements.
Sophie Burton-Jones: Yeah, because to give an obvious example, we quite often see if there's in the main contract with the ultimate end customer trust, say there's a liability cap of £2 million. And if the supplier, is trying to pass all of that £2 million on to the subcontractor, but they're only, you know, providing a small component of the overall, that's not the right, you know, for something to be a flow down, it doesn't have to be an exact flow down.
Gayle Curry: Yeah, exactly. It must be proportionate to the nature of the service you are supplying.
Charlotte Lewis: Just looking at the 10 Year Health Plan that was published in July, just thinking about whether it helps health tech companies that are seeking to work with the NHS. Are there any examples that you've seen, Gayle, that would support that? And do you think this is a positive opportunity for the furtherance of health tech within the NHS?
Gayle Curry: Yeah, I do think it's a positive step. I mean, the 10 year plan says all of the right things, doesn't it? It says that the NHS has a reputation as a poor and unwilling tech partner. Well, yeah, it does. That it's risk averse and introspective. And that's certainly our experience. You know, when things get tough financially for the NHS, they tend to look inwards for a solution rather than looking outwards for a solution.
The other issue for the NHS, and I really feel for them, is that it is dealing with short term budgeting, so it can only budget from year to year and it has an in-year budget that it has to spend or lose it. And that's a really weak incentive for innovation because it may be that your product is brilliant, but you're not going to get return on investment in year.
It might be 10 years, particularly if we're looking at investment in tech that is precision medicine tech, for example. where we won't, you know, you won't necessarily realise the benefit of the fact that you can diagnose heart disease much earlier and therefore prevent fatal outcomes in 10 years time. The NHS isn't really set up to buy that kind of tech because of the short-term budgeting situation it's in.
Sophie Burton-Jones: It's not even that, is it, Gayle? It's some of the tech. can take longer than 12 months to implement in the first place before you even look at ROI.
Gayle Curry: Yeah, yeah, that's right, that's right. But I mean, having said that, the 10 year plan is promising to harness new tech and it talks about the biggest industrial revolution since the 19th century.
There's an implementation plan coming. I understand, well, we thought it was late autumn, but I heard the other day that it's likely to be in the early part of September, so that's great.
But the headlines of the plan are that the NHS wants to invest in data, AI, genomics, wearables and robotics. It's all music to our ears. That there's going to be a streamlined procurement process for tech, which is fantastic.
There's going to be a single patient record. Well, that's going to make it so much easier for all of our tech clients to interact with the NHS because you're not having to become interoperable with a number of different patient record systems.
NHS Foundation Trusts are going to be reinvigorated with financial freedom and bigger buying power. That's super news for tech companies and for NHS FTs who want to do things more quickly and differently and with a streamlined procurement process as well.
There are going to be innovator passports. So once you've been robustly assessed by one NHS organisation, other organisations are not going to be able to insist on repeated assessments. So that could be really helpful. But at the minute, there's a lack of detail around how that's actually going to work.
Apparently, there's going to be a new operating model for the NHS that will reward NHS organisations for innovation, and support new care models. Well, that's great news for our tech clients.
There's going to be an end to that short-term budgeting. Sophie and I were just talking about allowing for multi-year budgets and long-term investment, which will give those supplying tech that's got a longer ROI, a real boost.
3% of the budget is to be spent on service transformation. Doesn't sound like a lot, but the NHS budget is billions, remember, so it is an awful lot of money.
And NICE is going to have an expanded role for health tech appraisal, which is also really good news.
So all of the right sounds are being made in the 10 year plan. Until we see the implementation plan, it's a bit difficult to comment further on that, but I have to say, I read the 10 year plan. with a degree of scepticism. But when I got to the end, I felt really optimistic.
Charlotte Lewis: Yeah, yeah.
And I think actually one of the things that I noticed from some of the detail in the tech section, there's a couple of references to those more streamlined procurement processes and marketplaces and things like that.
And actually thinking about the question that we discussed just previously about collaboration among tech companies, I think that really, for me, that really reinforces that point, which is, actually if you're a smaller tech company I think your future does lie in partnering with larger tech businesses because actually I think the NHS struggles with hundreds and thousands of tech companies and solutions. It can only handle a certain number and I think there's some recognition of that in the plan and recognition amongst CIOs that I’ve spoken to.
So just thinking a bit more strategically about that, thinking about how you can buddy up and partner and feed into those other things. the other services is a really useful approach to have, because if you're a very, very small fish in this massive, massive ocean that is the NHS, then getting yourself noticed, it's just going to be really difficult, really expensive, really time consuming, and actually might distract from a really great solution that you have.
So for me, the 10 year plan kind of really links with that earlier point that you mentioned, Gayle, and I think for me, that would be a big takeaway if I was an innovator in this space.
I'd be thinking quite hard about how I could collaborate with other sort of established suppliers as a way to get your product into the NHS as quickly as possible.
Gayle Curry: Yeah. I think it's really interesting as well to think about the NHS customer.
You know, the three of us were involved in an event a little while ago, weren't we, when we were talking about the NHS as a buyer, and one of the people around the table said, you know, you think of the NHS as a whale, but the closer you get to it as a tech supplier, you realise it's a shoal of fish and they're all swimming in different directions.
So, you know, also as a tech supplier, I would say, think about your customer. Is it NHS England, the centre of the NHS, in which case it is a big whale? Or is it an NHS trust? So it's a slightly smaller fish, but still a very large organisation to get into.
Or is it maybe primary care? And if you're dealing with primary care buyers, they're private sector organisations who happen to have an NHS contract. I'm talking about GPs here. They're not covered by public procurement legislation. And so running a pilot with a GP practice is often a good thing to do. And the GP practice might be able to commit to buy your product at the end of the pilot. But most GP practices are fairly small, certainly smaller than an NHS trust. And so it's a much more piecemeal way into the NHS.
But I have known one client I worked with during COVID had tremendous success selling its tech into GP surgeries. And then it went into primary care networks, which are obviously much bigger organisations, and they've had tremendous success since then.
So don't rule out GPs. And if you are dealing with GPs, they're probably not going to be covered by public procurement legislation, so they won't necessarily have to run a statutory competition.
Charlotte Lewis: Yeah, brilliant.
Sophie Burton-Jones: And what do you think on that note, looking at other routes, what about social care organisations and that kind of, that's another opportunity there as well where they tend to be private.
Gayle Curry: Yeah. Yeah. The whole private sector market. So, you know, we've got private healthcare market. They're not covered by public procurement legislation. I think they tend to run pilots less frequently, in my experience, although I have set up a couple of pilots for them and the care sector.
So when we talk about public procurement, being a route to purchasing for the NHS, that's generally central NHS bodies and NHS trusts essentially.
But yeah, there's a whole market outside of that in the private sector.
Sophie Burton-Jones: Lovely.
So thanks very much for your time today, Gayle. If you'd like to hear more from Gayle, then you can check her out on LinkedIn and she's often commenting and sharing our episodes and things like that. So very visible there.
And at Mills & Reeve, generally, we're very happy to discuss any legal queries you might have about selling tech to the NHS, whether that's from a procurement perspective, whether that's from a contractual perspective, you know, any of the points that we've talked about today and our individual contact details are all available on our website at mills-reeve.com.
So thanks very much for joining this episode of Talking digital health by law firm Mills & Reeve.