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The court accepted that Ministers had assured Parliament that the Health and Social Care Act 2012 would not lead to price competition between providers bidding for NHS contracts, and that competition would be based on quality and patient choice. Despite recognising this the Court found that even if the ACO contract encourages price competition - a key part of our legal argument - this is not unlawful but “is a political objection and not a matter for the court”.
We could not disagree more strongly.
While we are no fans of the 2012 Health and Social Care Act - which increased private companies’ access to NHS contracts, fragmented the NHS and removed the Secretary of State’s duty to provide a universal, comprehensive health service in England - we think that it is vital for the future of the NHS that the court of appeal be given an opportunity to scrutinise the Judicial Review arguments and ruling, in order to ensure that decisions in relation to the future of the NHS are made lawfully and are enacted.
A vital matter of public interest
On two counts...
First, the new ACO Contract introduces a form of payment, called a Whole Population Annual Payment, which is designed to “manage demand” in order to meet a £22bn+ NHS and social care funding shortfall by 2020/21. It is basically a fixed annual sum paid to an accountable care provider, to cover each person in the area that the ACO contract applies to, regardless of the number or complexity of NHS services provided.
The effects of this payment mechanism, if introduced into the English NHS, would be to restrict access to NHS treatments; speed up the creation of a two-tier health system where people with money pay to go private while the rest make do with a limited NHS;, and increase privatisation.
Second, the fact that NHS quangos are spending considerable sums of public money, on the assumption that the ACO Contract is lawful, means it is in the public interest to determine the legality of the ACO Contract as soon as possible.
Another reason why we strongly feel this decision requires further scrutiny from the Court of Appeal is that our judicial review is about the current Accountable Care Organisation contract 2017/18-2018/19. It isnot about some hypothetical future contract, where NHS Improvement could change the rules about NHS payment arrangements that NHS England is required to follow - which the ruling seems to assume.
We are particularly concerned by the Court’s observation that “the current draft of the ACO contract may need adjusting...” – while ultimately ruling that the ACO contract payment mechanism is lawful.
Many thanks to Rowan Smith and Anna Dews at Leigh Day, as well as David Lock Q.C. and Leon Glenister at Landmark Chambers, for taking our appeal forward. And to all the campaigners and members of the public who have supported the 999 Judicial Review.
Thanks to over 1400 people who have helped us over the last 2 years. Now we need help going back to court - join the march!
Remember that consultation on the Accountable Care Organisation Contract that NHS England promised to offer the public?
Well... on 3rd August, a Friday, the first week of the Summer Holidays when Parliament is not in session and neither is the Supreme Court, NHS England have indeed launched their consultation.
Now called the Integrated Care Providers contracts consultation, it will run until October 26th.
They launched this consultation knowing (legal teams talk after all) that we had applied for Permission To Appeal the court’s ruling against our Judicial Review. Regardless, NHS England assert: "Following two recent Judicial Reviews which were dismissed, the High Court has twice now ruled that this proposed contractual approach to developing integrated care is lawful"
Well, since our Permission To Appeal has now been granted this means that NHS England is consulting on a contract that may not even been legal. This beggars belief. A lot of public funds are being spent on developing the ACO model - including this so-called public consultation.
But NHS England’s rebranded Accountable Care Organisation contract consultation is a specious attempt, paying lip-service, to meet the requirement to consult on a significant change to NHS and social care services.
We don't support the marketisation of the NHS that created the purchaser/provider split and requires contracts for the purchase and provision of services. NHS England are keen to use the term "integration, integrated"...
Real integration of frontline NHS and social care services, in order to provide a more straightforward process for patients with multiple ailments, is not aided by a system that essentially continues unnecessary NHS fragmentation.
This new proposed contract is a complex lead provider contract that creates confusion over the respective roles of commissioner and provider. It requires multiple subcontracts that are likely to need constant wasteful renegotiation and change over the duration of the lead provider contract. This is just another form of fragmentation, waste and dysfunctionality.
The way to integrate the NHS and social care is through legislation to altogether abolish the purchaser/provider split and contracting, put social care on the same footing as the NHS as a fully publicly funded and provided service that is free at the point of use, and remove the market and non-NHS bodies from the NHS.
Such legislation already exists in the shape of the NHS Reinstatement Bill.
Click here to read more about our march into the courts.
We're working with local campaign groups up and down the country to highlight the failings in the local council SCRUTINY process which is supposed to be our protection against dangerous cuts and changes.