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Legal challenge to NHS reorganisation hits buffers

High Court rules that Accountable Care Organisations are lawful

Caroline White

Friday, 06 July 2018

A legal challenge brought against the health and social care secretary and NHS England for the introduction of Accountable Care Organisations (ACOs)* as part of the reorganisation of the NHS has hit the buffers after a High Court ruled yesterday that the new systems are lawful.

ACOs, since renamed as integrated care systems, are set to take over the budgets and management of healthcare for a population in local areas, bringing together different organisations from health and care to integrate services and tackle the causes of ill health.

The challenge was mounted back in May by campaign group JR4NHS, spearheaded by Professor Allyson Pollock, Dr Graham Winyard, Professor Sue Richards, Dr Colin Hutchinson, and the late Professor Stephen Hawking, and backed by the BMA.

The claim had originally been brought on four grounds: two on the lack of proper consultation; one on the legality of the idea itself because clinical commissioning groups (CCGs) are the legal bodies that currently plan and buy care in the NHS; and one on grounds of lack of clarity and transparency.

The claim on the consultation grounds was withdrawn after the government conceded that it would not proceed without a full national consultation. But the High Court found against the other two grounds.

In a statement posted on Facebook, JR4NHS said that Mr Justice Green had made it clear that he was not deciding on the merits of ACOs and had acknowledged that the group raised “perfectly good and sensible questions…..about the ACO policy and the limitations of the terms and conditions in the draft ACO Contract.”

But he decided that the ACO policy is lawful because the Health and Social Care Act 2012 gives very broad discretion to CCGs when commissioning services.

As to the lack of clarity and transparency, Justice Green rejected the government’s argument that the principle didn’t apply “in relation to what by common accord is intended to amount to radical and transformational changes in the way in which health and social care is delivered,” but he decided that the principle was not yet engaged.

JR4NHS won’t appeal the decision, but have pledged to carry on their fight in political arenas and to focus on the consultation.

“Apart from the extra costs involved, our opponents have already been forced to change their plans. In order to win the case, they had to argue that ACO contracts were just like other provider contracts, and not the fundamental change to the governance of the NHS that we know they intended,” said the statement.

“The judge recounts in detail how their position changed as they began to appreciate the power of our claim. The commissioning functions of CCGs were to be - illegally - delegated to ACOs - but instead are now reinforced, and if the government wishes to continue on the original path to creating ACOs, primary legislation will be needed and CCGs will have to retain sufficient staff and resources.”

The statement pointed out that the Health and Social Care Select Committee has called for legislation, and that the prime minister included the possibility of new legislation for the NHS in her speech a couple of weeks ago.

“In addition, the promised consultation will have to be lawfully conducted, and any eventual ACO contract - in Dudley, Manchester or wherever – will have to be lawfully entered into,” it continued.

“We deeply regret the judgment…But we hope its effect will be to strengthen resolve to hold the government to account during the consultation, and raise public awareness of the issues at stake if contracts for billions of pounds of public money lasting ten or more years are awarded to new bodies not established by statute, which could be partly or wholly private companies, and which could outsource all their services if they wished,” the statement concluded.

A BMA spokesperson commented: "We are hugely disappointed that the Judicial Review has been dismissed. We believe the plans for [ACOs], as they stand, are absolutely not in the best interests of patients or clinical and support staff.

"ACO’s have the potential to have a far-reaching negative impact on patients, doctors and the wider NHS workforce because they lack clarity and accountability in their development, they present a risk of privatisation of NHS services and the BMA is far from convinced that the government will provide the level of NHS funding and investment required for them to work.”

*Charles A. Accountable care explained. The King's Fund, 18 Janurary 2018.

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