NHS England faces double legal challenge
NHS England is facing two separate legal challenges to their plans to create non-NHS bodies called accountable care organisations (ACOs) to provide health and care to patients in England.
Patient campaign group 999 Call for the NHS lodged papers in October seeking a judicial review, arguing the ACO contract published by NHS England is 'unlawful' and in breach of the Health and Social Care Act 2012.
In a separate move, campaign group #JR4NHS has notified health secretary Jeremy Hunt that they are seeking a judicial review to stop NHS England from introducing ACOs without proper public consultation and without full Parliamentary scrutiny.
City and Hackney clinical commissioning group (CCG) and its partners have so far ruled out becoming part of an ACO.
Instead the CCG is developing a City and Hackney accountable care system (ACS) where local NHS organisations and the council take on collective responsibility for resources to care for the local population.
Lawyers for 999 Call for the NHS claim the new ACO contract published by NHS England in August breaches sections 115 and 116 of the Health and Social Care Act which relate to how much commissioners pay for NHS services and regulations around the national tariff.
Under current legislation, prices paid for NHS services must reflect how many patients receive care under that specific service. The new contract allows commissioners to give providers a fixed budget for an area’s population instead.
In a statement, 999 Call for the NHS, said: ‘The new ACO contract does not link payment to the number of patients treated and/or the complexity of the medical treatment provided, as required by the Health and Social Care Act 2012, but is based on a fixed budget for an area’s population.
'We are deeply concerned that the contract, if implemented, would threaten patient safety and force hospitals and doctors to restrict treatment, making decisions based on money not clinical judgement.
'This is because a fixed capitated budget would fail to ensure that there would be enough money to meet the cost of delivering NHS services to the required quality standard,' the statement added.
#JR4NHS, the second group mounting legal action to block ACOs, crowdfunded more than £26,000 in one day to pay for their judicial review.
Campaign spokesperson Allyson Pollock, Professor of Public Health at Newcastle University, warned that ACOs were non-NHS bodies and were a model being imported from the US.
ACOs were not recognised in any Act of Parliament yet they will be able to decide 'on the boundary of what care is free and what has to be paid for' and will be paid more if they save money, Professor Pollock said.
'ACOs will fundamentally change the NHS and involve a radical reorganisation of health and social services in England. They will have control over the allocation of NHS and taxpayers’ money. Their accountability for spending it and their obligations to the public will be under commercial contracts, not statutes,' she added.
NHS England says it will ‘strongly resist’ the legal action.