National campaign group '999 Call for the NHS' have applied to the Supreme Court for expedited Permission to Appeal the recent ruling against their legal challenge to a contentious new cost-cutting NHS contract which will have many profound effects on the way NHS services are delivered.
Local NHS organisations are already implementing new Accountable Care models,
The group say they are compelled to step up their #Justice4NHS campaign in this way, because rulings from the High Court and the Court of Appeal have not addressed or answered their essential complaints about the legality of the NHS England's proposed Accountable Care Organisation contract.
999 Call for the NHS - who four years ago marched from Jarrow to London to demand an end to NHS cuts and privatisation - have told the Supreme Court that they think the “key question of statutory construction”, identified by Lady Justice Arden in granting permission for the Court of Appeal hearing, still remains unanswered.
This central legal issue is the need to clarify whether the High Court judge was right to hold that a section of the legislation about how NHS services are to be paid for does not require “visible prices fixed in advance for each individual treatment episode.”
But the Court of Appeal judgement has ignored central points that the campaign group made about this issue and did not directly deal with a key aspect of their argument about it.
Steven Carne, Co-Chair of 999 Call for the NHS, said:
“The Court of Appeal Judges were selective about which bits of our argument they chose to to pay attention to.
This makes a mockery of the whole purpose of going to court.
We thought at the Court of Appeal all sides of the argument would be carefully listened to and examined, in order to reach a properly informed and unbiassed judgement.”
Roger Steer, a Director of Healthcare Audit Consultants Ltd. who advise local authorities on health reconfigurations proposals, added:
“In an ideal world an independent judiciary is an important bulwark of a democratic society and is a barrier to the executive doing things without parliamentary approval. In this case, the Court of Appeal has gone wrong and has allowed a dubious decision to be made because of the distress this might cause to the executive.”
Jenny Shepherd, the named appellant on behalf of 999 Call for the NHS, explained,
“Neither the High Court nor the Court of Appeal has properly considered the crucial point of whether this contract - which is designed to manage demand for NHS services - uses visible prices fixed in advance for each patient’s specific treatments.
Local NHS organisations are already steaming ahead with implementing new cost-cutting Accountable/Integrated Care models, and it’s becoming obvious that despite the best efforts of front line NHS staff, patients’ experiences do not match the political narrative of making health and social care better.
It costs a specific amount to provide each treatment to each patient, and we are worried that the proposed contract ignores this by paying a fixed annual amount for a whole range of services for an area’s population.
This creates a real risk that there wouldn’t be enough money to cover the costs of providing high quality treatments to all patients who have a clinical need for them.”
In the Court of Appeal, NHS England countered this argument by saying the ACO contract enables innovation and integration. The implication was that this would create efficiencies - cutting costs without restricting or denying patients’ access to treatments.
The Judges did not question NHS England’s claim, but the campaigners say there is no real evidence to support it - plus there is nothing in the contract about innovation.
Over 2000 members of the public have crowdfunded the 999 Call for the NHS legal challenge. There is widespread support for the application to take it to the Supreme Court so that the key issues can be properly considered.
The campaign group’s legal team is Rowan Smith and Anna Dews from the public law firm Leigh Day, and David Lock QC and Leon Glenister from Landmark Chambers.
1. The legality or otherwise of the proposed Accountable Care Organisation contract (rebranded by NHS England as the Integrated Care Provider Contract) is a public interest issue. The form of NHS contracts that NHS bodies enter into will have multiple and profound effects on the way NHS services are delivered.
2. Accountable Care models are already being set up by Sustainability and Transformation Partnerships - cutting and centralising hospital services, moving hospital services into large scale GP practices and networks with 30-70k patients, and replacing qualified health professionals with voluntary sector workers, volunteers and self-care. Front line NHS staff, patients and their families are warning 999 Call for the NHS that this puts patient safety at risk and drives those who can afford it to go private. [Patient safety at risk as specialist hospital services move into GP practices]
3. There is no real evidence that Accountable/Integrated Care models have the positive results they are intended to, according to recent reports by the National Audit Office [https://www.nao.org.uk/report/developing-new-care-models-through-nhs-vanguards/] and the Nuffield Trust [https://www.nuffieldtrust.org.uk/news-item/are-patients-benefiting-from-better-integrated-care ]
4. NHS England’s new 10 year Long Term Plan aims to accelerate and consolidate these Accountable/ Integrated Care models, setting up scores of non-statutory local ‘Integrated Care Systems’ that lack transparency and public accountability and are open to increased private sector provision of NHS care. A key to these Integrated Care Systems are forced mergers of GP practices covering populations of 30-70,000, causing accessibility problems for many patients and limiting GP consultations to patients with complex health problems.
5. Accountable Care Organisations have been barely reported by national media, and coverage has generally omitted contentious points of public interest such as international corporate influence, the potential for fragmentation across a national health service, or the lack of evidence that the new Accountable/Integrated care models have delivered the intended positive goals. https://link.springer.com/article/10.1057/s41285-018-00083-9
6. Despite this general media blackout, thousands of people have donated to cover the costs of the Judicial Review and Appeal, via CrowdJustice - the leading crowdfunding platform for legal action. https://www.crowdjustice.com/.
7. There are four Grounds for the Application for Permission to Appeal to the Supreme Court:
i) The Court of Appeal was wrong to conclude that the Accountable Care Organisation contract’s fixed annual payment for a whole range of health services for an area’s population (the Whole Population Annual Payment) complies with the 2012 Health & Social Care Act section 115(1) requirement, that payment for a service specified within the National Tariff must be made “on the basis of the [national] price ... specified in the national tariff for that service”.
The ruling failed to grapple with the problems that a) the Accountable Care Organisation contract doesn’t follow the National Tariff rules to fix a price, since there’s no price for any individual service; and b) the overall price payable is fixed without any reference to the national price - so it cannot be on the basis of that price.
ii) The Court did not recognise that Whole Population Annual Payment is not a “variation” of the specification relating to a single medical procedure, which is allowed by s116(2) of the 2012 Health & Social Care Act. Instead it substitutes an entirely different type of payment arrangement - replacing one service with another (much larger) package of services. The changes are far more extensive than parliament could have envisaged by a “variation” to an individual service specification.
Plus, this package (or “bundling”) of services is not permitted by either the 2012 Act or the rules of the National Tariff. The “bundling” permitted under s117 (1)(b) is for two or more health services which together constitute a form of treatment. A “form of treatment” is limited to services provided to an individual patient.
But NHSE and Monitor claimed a get-out in §356 of the National Tariff:
“The local variation rules are intended to give commissioners and providers an opportunity to innovate in the design and provision of services for patients”
The Court of Appeal did not question the relevance of this claim to the Accountable Care Organisation contract, either in Court or in the ruling.
iii) The Court of Appeal was wrong in not considering the Parliamentary material about the 2012 HSCA . It ruled that this was unnecessary because the legislation was “pellucid” (!!). The judges agreed with NHS England that the 2012 HSCA gives complete freedom to the Commissioner and provider to amend prices as they see fit under section 116(2), so they didn't need to refer to the Parliamentary materials. But the Court of Appeal interpretation fails to deliver on ministers' assurances to Parliament, that price competition would not be possible because national tariff prices were “fixed” and providers would not be selected on the basis of price.
In addition, the Court of Appeal’s conclusions highlight at least the following ambiguities:
So the ruling should have had recourse to clear and unambiguous statements by Ministers either as an aid to interpretation, or at least to identify the mischief of price competition that the 2012 Act was aimed at.
iv) National Tariff rules mandate that locally agreed prices are to be set by a method where the public have a say on the prices. The ACO Contract proposal to locally “vary” price and specification under section 116(2) is unlawful because the NHSE Guidance on the way to set up an ACO contract mandated a method where the public had no say, since the price was fixed by reference to last year’s spend.
8. The 999 Call for the NHS Judicial Review was held in Leeds High Court on 24th April. The Judge ruled against the campaign group, but they gained Permission to Appeal. The Court of Appeal Hearing was scheduled to take place over two days - 20 and 21 November, but the Judges only heard the Appeal for a cursory few hours on the first day allocated to the case.
9. 999 Call for the NHS doesn’t think the 2012 Health and Social Care Act is a good piece of legislation - but it is the law at the moment, and public bodies like NHS England are required to act according to the law.
They have campaigned since 2014 to renationalise the NHS by passing the NHS Reinstatement Bill - a private members’ bill that removes commissioning and privatisation from the NHS and uses non-contract payment methods, based on needs assessment and proper funding.
Source: 999 CAll for NHS press release in full / unionsafety (US vulture NHS logo)