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NHS England faces legal challenges over proposed changes to services

BMJ 2018; 360 doi: https://doi.org/10.1136/bmj.k328 (Published 22 January 2018) Cite this as: BMJ 2018;360:k328
  1. Clare Dyer
  1. The BMJ

NHS England faces two High Court challenges to its proposed introduction of accountable care organisations (ACOs) in England, both arguing that the move is unlawful.

Both legal actions are being brought by campaign groups that say that the plans, which they fear could lead to rationing of resources and part privatisation of the NHS, have been launched without full public consultation.

A grassroots campaign, 999 Call for the NHS, has won permission to apply for a judicial review of the proposals, with a hearing set for 24 April. The case has been brought against NHS England and NHS Improvement.

The other group, JR4NHS, which includes the renowned cosmologist Stephen Hawking, expects to hear shortly whether its case against NHS England and the health secretary for England, which has raised £150 000 (€170 000; $210 000) through crowdfunding, can go ahead. Other members are the former consultant eye surgeon Colin Hutchinson; Allyson Pollock, professor of public health at Newcastle University; Sue Richards, professor of public management at Birmingham University; and the former deputy chief medical officer Graham Winyard.

In accountable care organisations, which began in the US, one provider or a group of providers takes responsibility for the healthcare needs of an entire population, usually receiving an annual capitated budget to deliver contractually agreed healthcare outcomes. Integrating primary care, hospital care, and community would deliver a more joined-up service for patients, NHS England has argued.1

In August 2017 the Department of Health for England published a draft ACO contract. The department consulted between 11 September and 3 November on proposed changes to regulations that would allow a model contract to be introduced. The department said it wanted the regulatory changes in force by February 2018 to allow a few clinical commissioning groups to try out the draft contract, with a full consultation on ACOs to follow later.

JR4NHS argues that under the proposals clinical commissioning groups would be delegating their responsibilities, which was not allowed under the NHS Act 2006. It says in the summary of the grounds for its challenge, “It is of the highest public importance that this model is subject to legal, democratic, and public scrutiny rather than introduced by stealth.”

The group accuses the health secretary, Jeremy Hunt, and NHS England of breaching “their common law duties to publicly make clear their proposals to reorganise the NHS in England using ACOs.” Hunt and NHS England, the group alleges, “have failed to make it clear to the public that the ACO model means a switch of resources and decision-making power to newly created legal entities, distinct from any established NHS bodies, which could be wholly or partly private, would be non-statutory, and would not be subject to the duties imposed on CCGs by Parliament.”

Meanwhile 999 Call for the NHS argues that ACOs are “unlawful under current NHS legislation because 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 2012 Health and Social Care Act, but is based on a fixed budget for an area’s population.”

The Department of Health and Social Care has described the groups’ claims as “misleading” and insisted that ACOs were “simply about making care more joined up.”

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