The NHS Commissioning Board (NHS CB) is struggling to fill vacant positions ahead of being authorised in March next year, board papers have revealed.

The Board’s ‘risk register’ indicated that it may “fail to populate its organisational structure” due to issues such as delays in organisational design and trade unions challenging the transition process.

A spokesperson for the Board said that establishing the organisation is a “complex task” and that the “critical thing is that we recognise and manage that risk”.

Board papers point towards four main challenges the NHS CB faces in its recruitment drive. Alongside issues with organisational design and challenges from trade unions, warnings were also raised around delays resulting from “disagreements with sending organisations regarding the nature of functional transfers” and the Board failing to secure “sufficient capacity” to manage the volume of recruitment needed.

To address these issues, the Board has been advised to analyse and strengthen its recruitment strategy and also develop a contingency plan should positions not be filled.

Kieran Walshe, Professor of Health Policy at Manchester Business School, said that a lack of recruitment may be down to individuals viewing a role with the NHS CB as inferior to their current position. “They (candidates) are often older, run pretty big organisations and the fact is they don’t want to be three rungs down the ladder in some outpost answering to the Commissioning Board,” he said.

The problems faced by the Board in recruiting suitable candidates were highlighted in July when it failed to appoint all of the required local area team directors. It has also been criticised by CCG leaders for delaying the authorisation process by failing to appoint managing directors of Commissioning Support Units.

The UK cabinet’s veto on publication of the NHS transition risk register was an “unjustified” policy change, according to the Information Commissioner.

In a report to Parliament, Christopher Graham said the circumstances of the Health and Social Care Bill were not so “exceptional” as to justify the measure.

The cabinet’s decision was “a significant step” in the use of security legislation to conceal non-military information, he said.

Health Secretary Andrew Lansley said that publication of the document noting possible consequences of the NHS reforms would endanger the “safe space” of policy development.

But the veto – only previously used in the context of war – could not validly be used for such purposes, Graham said, noting: “None of the criteria for ‘exceptional cases’... are met in the present case.”

A DH spokesperson responded that the NHS reform legislation took place at “a particularly sensitive time when the need for a ‘safe space’ was especially high”.

Shadow Health Secretary Andy Burnham said the Information Commissioner’s report was “severely embarrassing” for the Government.

Responding to a delegate’s query at the NICE Conference, Andrew Lansley insisted he had kept within the bounds of the Freedom of Information Act.

The UK Government has exercised its right of veto to prevent the NHS reform transition risk register from ever being published.

The Cabinet’s veto – normally used on grounds of national security – overrides two legal verdicts that the Government must publish the register.

Health Secretary Andrew Lansley justified the veto by saying that publication of the risk register would weaken the policy-guiding value of such documents.

Details of the register leaked online indicate that it warned of a potential major breakdown of NHS service provision, as well as an increase in health inequalities.

The veto marks the conclusion of the Government’s 19-month struggle to keep the risk register secret in the face of legal challenges from Labour MP John Healey.

The DH lost two legal battles, being ordered to publish the risk register first by the Information Commissioner and then by a first-tier tribunal. Rather than escalate the legal process, it has used its political powers to conclude the issue.

According to Andrew Lansley, this “exceptional” step was necessary to prevent future policy documents being watered down by “civil servants worrying about how they sound to the public”.

John Healey described the veto as “a desperate act” that effectively placed NHS reform on the same footing as a war, while Shadow Health Secretary Andy Burnham called it “a cover-up of epic proportions”.

The BMA commented that it was “disappointed” by the decision, pointing out: “There is still a huge amount of complex and very controversial secondary legislation to go through parliament in relation to the Health and Social Care Act.”

Dr Peter Carter, Chief Executive of the Royal College of Nursing, said the veto was “astonishing” and meant “the public are only being presented with a partial picture of the NHS reforms.”

The Department of Health’s risk register on the NHS reforms has been leaked online on the day the Health Bill reached Royal Assent.

The Transition Risk Register raised a host of concerns about the introduction of the Health and Social Care Bill including the NHS losing control of finance and performance, the morale of staff and dispute with unions.

Health Secretary Andrew Lansley had previously claimed the register was a “worst case scenario”.

Labour MP John Healey had requested the DH release the register whilst he was shadow health secretary in November 2010 under the freedom of information law.

A tribunal ruled earlier this month that the risk register should be published before the Bill had passed through Parliament. However, the DH indicated it would appeal the decision and the publishing of the register was again delayed.

The version which was leaked online is one of the first iterations of the register. Dated 28 September 2010, it was created three months after the Government’s initial white paper was published.

The most significant and likely risks, the document reveals, surround the loss of control of finances and performance. It states: “By dismantling the current management structures and controls, [there could be] more failures, including financial, e.g. GP consortia go bust or have to cut services, and credibility of the system declines as a result.”

Worries were also raised that the NHS Commissioning Board “is not sufficiently developed” and that consortia or GP leaders who are not sufficiently developed “may be drawn into managerial processes which drive clinical behaviour (rather than the other way around)”.

The document also warns that the “new system” will be designed from an internal perspective without considering the views of the general public and patients and lead it to being “difficult for the public to navigate or hold to account”.

Risks referring to the Treasury include: an inability to reduce running costs due to the number of consortia; a reduction in the amount of time GP spend with patients due to management responsibilities; ‘postcode’ commissioning; an increase in “catastrophic failure” with no system management; and GPs creating an increase in their remuneration by “playing the system”.

The register also indicated the Government was considering splitting the Health Bill into two parts as it faced a host of opposition against the controversial reforms in the autumn of 2010. However, there were worries over whether parliamentary time could be found for two separate pieces of legislation.

The Health and Social Care Bill has passed its final reading in the House of Lords and is now only days from becoming law.

The final vote in the House of Commons today will follow an emergency debate forced by the opposition.

An attempt to delay the Lords vote until the publication of the risk register for the planned NHS reforms was defeated by Conservative and Lib Dem peers.

During the final Lords debate, 25 protests against the Health Bill took place across the UK.

A motion tabled by Labour peer Baroness Thornton called for the Bill to be dropped because it did not have the support of patients, clinicians or the public and would drive the “fragmentation and marketisation” of the health service.

It was defeated by 269 votes to 174, with the support of only one Lib Dem peer.

A further motion by crossbench peer Lord Owen, calling for the Bill’s third Lords reading to be delayed pending the publication of the NHS transition risk register, was defeated by 328 votes to 213.

The Freedom of Information Tribunal recently upheld the decision by the Information Commissioner that the risk register, which the Government has now withheld for 15 months, must be published.

Shadow Health Secretary Andy Burnham commented that it was “highly unsatisfactory” for the information about the risks of the Bill’s implementation to be denied to MPs until after their final vote.

“Parliament has a right to know, before it is asked to make a final judgment that will have huge implications for every person in this country,” he said.

However, Health Minister Earl Howe (pictured) told the Lords that considering the transition risk register to offer some “deep insight into what this bill means for the NHS” was “an absurd proposition”.

Labour has forced a 90-minute emergency debate today on whether MPs can approve the Bill before the risk assessment has been published.

If approved by the Commons today, the Bill could receive Royal Assent and become law later this week.