Councillor accuses Derbyshire primary care trust of failing to consult over contract

Clare Dyer, legal correspondent

A High Court judge in London is expected to rule soon on a legal challenge to a primary care trust’s decision to allow a US based healthcare company to take over the provision of GP services in a deprived ex-mining community in Derbyshire.

The contract for primary care services at Cresswell and Langwith is one of the first to be tendered for under government plans to open healthcare services to the market.

North Eastern Derbyshire Primary Care NHS Trust declared UnitedHealth Europe, part of the giant US UnitedHealth Group, to be the "preferred provider" for the services last December. But the contract was put on hold after a local parish councillor, Pam Smith, won permission to mount an application for judicial review (BMJ 2006;332:1172-3, 20 May).

Mr Justice Collins reserved his judgment after hearing the case last week. If the application succeeds, the tendering process may have to be reopened.

The judgment will have important implications for the government’s policy of opening up the NHS to alternative providers. The Department of Health regards the case as so important that it intervened to present its own arguments to the court.

The case is the first to test the meaning of section 11 of the Health and Social Care Act 2001, which covers the duty to involve and consult patients and the public in service planning and provision and the development of changes. The judgment should clarify the extent to which managers will have to involve the public in decisions about changing healthcare providers.

Langwith’s local council, Scarcliffe Parish Council, had backed a proposal by a local GP, Elizabeth Barrett, to open a new practice with a multidisciplinary team and offered her land at a peppercorn rent. But her plans never even made the trust’s shortlist.

At the High Court last week Eleanor Grey, counsel for Ms Smith, told the judge that the lack of consultation with local people over how they wanted their GP services provided contradicted government promises that NHS patients and the public would be "listened to, rather than talked at."

She told Mr Justice Collins that local residents had had inadequate GP services since 2004 and were "vociferously active" in trying to find a solution. But the trust had failed to conduct proper consultations before rejecting Dr Barrett’s proposals.

She said the failure to consult was a breach of section 11 and ignored NHS guidance stating that the involvement of patients and the public in health service decision making was "a priority."

For the trust, David Pittaway QC argued that there was no legal duty to consult under section 11, because there was to be no change in the services provided, only in the provider. Even if there were an obligation to consult, he added, the trust had satisfied the obligation by appointing the chairman of a local patients’ participation group to the panel that awarded the contract.

Javan Herberg, for the Department of Health, said that the secretary of state for health, Patricia Hewitt, was particularly interested in the case because the judge’s decision on the duties under section 11 would affect the NHS generally and not just primary care trusts. He agreed with Mr Pittaway’s argument that section 11 did not apply to the "re-provision" and "recontracting" of existing services.

UnitedHealth Europe’s president, Simon Stevens, is a former health adviser to Tony Blair. Richard Smith, its chief executive officer, is the previous editor of the BMJ.