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High Court London

Healthcare campaign group granted right to appeal in legal case about price competition in the NHS

Campaign group 999 Call for the NHS has been granted leave to appeal the dismissal of their judicial review challenge

Posted on 22 August 2018

A campaign group has been granted leave to appeal in its battle to challenge the government's decision to create Accountable Care Organisations (ACOs) - now called Integrated Care Providers - after a High Court judgment dismissed their judicial review challenge earlier this year.

The ACO concept was announced in August 2017 and, if implemented, would introduce a lump-sum payment for health services without a defined price, outside of the current legislative framework. Campaign group 999 Call for the NHS are concerned the proposed changes will mean medical professionals will be forced to make decisions around the care a patient receives on the basis of the cost of a treatment rather than medical need.
The campaign group argued that the new contracts for ACOs are unlawful under the Health and Social Care Act 2012 and could threaten patient safety by forcing care providers to potentially restrict patients’ access to treatment. In a broader sense, the campaign group also believe the core principle of the NHS of providing comprehensive care to all is being threatened by the introduction of ACOs.
In May 2018, the High Court ruled that the proposed introduction of ACOs by the government was lawful. However, Lady Justice Arden has now granted permission to appeal on all grounds, remarking that: “A key question of statutory interpretation on this appeal…is whether the judge was right to hold that section 115 of the Health and Social Care Act 2012 does not require ‘visible prices fixed in advance for each individual treatment episode.’ (judgment, [95]). This is clearly an arguable question of law…Therefore I give permission to appeal on all grounds…”
Steve Carne, spokesperson for 999 Call for the NHS said:

“We are delighted to have been given permission to appeal the High Court ruling. We will continue to fight this case to ensure that the government puts patient care and safety above costs.”
Rowan Smith, solicitor at Leigh Day, added:

“If Parliament had not intended to protect the NHS from price competition, then it would not have established a national tariff for how much a provider is paid to deliver an individual health service. In fact, that’s exactly what Parliament did do, and that’s precisely what the current Government is trying to undermine with ACOs.
“If that protection goes, a race to the bottom on price may become a reality. The Government’s defence is that ACOs amount to local variations; but with a lump-sum paid in advance of any health service actually being delivered, under these proposals there will never even be a price to vary. A recent report by the Health Select Committee concluded that the existing legislation was not designed to enable these ACO changes. Our clients believe the High Court ruling was fundamentally flawed, and we look forward to presenting their case to the Court of Appeal.”