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Campaigners launch judicial review against NHS England

A national campaign group, represented by a health activist from West Yorkshire, has launched judicial review proceedings against NHS England in relation to Accountable Care Organisation contracts that could threaten patient safety standards and restrict patients' access to treatments.

Posted on 09 November 2017

999 Call for the NHS, represented by Jenny Shepherd, of Hebden Bridge, are  challenging the legality of the decision by NHS England to publish and promote a new form of Accountable Care Organisation (ACO) contract which proposes removing the present system of payment by results for NHS providers and replacing it with a Whole Population Annual Payment (WPAP).
It is anticipated that the new contract may  be used by Ms Shepherd’s local clinical commissioning group (CCG) if ACOs are rolled out, so Calderdale CCG has been named as an Interested Party to proceedings.
Ms Shepherd is taking the legal action on behalf of campaign group ‘999 Call for NHS’ which campaigns locally and nationally against the adverse consequences for patients arising out of cuts or unwelcome changes to the NHS and in support of maintaining the full range of free services for everyone with a clinical need.
Currently, all NHS services commissioned by a CCG must follow the National Tariff which sets the price commissioners can pay providers for a service. In this model the price is based on the service delivered, so that if demand outstrips supply then providers are paid commensurately.
One of the main aims of this system is to ensure that when providers are competing for contracts this is based on quality of service, not on price.
Under the new proposals through Accountable Care Organisations (ACOs), clinical commissioning groups would be allowed to pay the providers a fixed amount under a WPAP. This means that, if demand outstrips supply, then providers are not paid any more. Conversely, if demand is less than estimated, then public money is tied up rather than being used elsewhere.
The requirement for NHS bodies to operate under the National Tariff is set out under ss. 15-16 of the Health & Social Care Act 2012 where the amount paid to a provider of NHS services is based on the number of patients treated and/or the complexity of the medical care provided to each patient. The Act only allows for NHS bodies to move away from the National Tariff system in very limited circumstances. The campaign group argue that these circumstances are not met and therefore the use of the new payment system, WPAP, is unlawful.
The campaign group claim in their legal case that the proposed ACO system would threaten patient safety standards by making it more likely that service providers will concentrate services which pay the most, rather than delivering services to the most vulnerable who often need services which don’t pay as much.
Jenny Shepherd said:

“999 Call for the NHS are increasingly concerned about the wider Sustainability and Transformation Plan process, which the proposed ACO contracting arrangements form a crucial part of. As a result of our campaigning activity, we have realised that details of NHS contracting are vitally important to securing high quality services for patients. If implemented, this new form of contract would undermine the core NHS principles of providing the full range of high quality, evidence-based health care to everyone with a clinical need, free at the point of use. These principles, and the institution of the NHS that they define, are a vital part of our society.” 
Rowan Smith, solicitor at law firm Leigh Day, said:

“We all know how controversial the Health & Social Care Act 2012 was at the time. That’s why the then government included the payment by results system as a safeguard against a feared race to the bottom. NHS England is now attempting to circumvent that protection for patients through the back door and outside of the existing statutory framework.  If NHS England does not have the legal power to introduce these new ACO contracts, then it will have to go back to the drawing board, which can ultimately only be a good thing for patients.”