At last – a legal challenge to covert rationing

Lets be clear, NHSreality feels rationing is essential, and is happening as sensibly as the surrent rules of the game allow: covertly and by post-code. This case, if it is won, will force politicians to address the rules of the game, and hopefully to change them. Rationing should be overt. We have a right to know what is not available.

Clare Dyer reports in BMA News: NHS England faces legal challenges over proposed changes to services (BMJ 2018;360:k328 )

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.”

Update 31st Jan 2018: BBC News – Stephen Hawking to take Hunt to court over NHS


This entry was posted in A Personal View, Rationing, Stories in the Media on by .

About Roger Burns - retired GP

I am a retired GP and medical educator. I have supported patient participation throughout my career, and my practice, St Thomas; Surgery, has had a longstanding and active Patient Participation Group (PPG). I support the idea of Community Health Councils, although I feel they should be funded at arms length from government. I have taught GP trainees for 30 years, and been a Programme Director for GP training in Pembrokeshire 20 years. I served on the Pembrokeshire LHG and LHB for a total of 10 years. I completed an MBA in 1996, and I along with most others, never had an exit interview from any job in the NHS! I completed an MBA in 1996, and was a runner up for the Adam Smith prize for economy and efficiency in government in that year. This was owing to a suggestion (St Thomas' Mutual) that practices had incentives for saving by being allowed to buy rationed out services in the following year.

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