Receiving messages from fellow campaigners and leading figures was a real boost when we needed it and we cant thank you all enough.
Click below to read the messages of support.
The campaign community should be proud of one another.
999 Call for the NHS was in Leeds High Court on 24th April for the hearing of our Judicial Review of NHS England’s contentious Accountable Care Organisation contract. Our challenge was that the contract’s introduction of a new payment mechanism is unlawful under current NHS and social care legislation and national tariff rules.
The contract is designed to “manage demand” - which basically means restricting and denying health care to patients. This would undermine the core principle that the NHS provides comprehensive healthcare to everyone who has a clinical need for it.
As expected, Judge Kerr reserved judgment, so we have to wait for his decision. But he said we would not have to wait for very long “as this is a matter of some urgency”.
For the first hour or so of the hearing, it was only the two legal teams, Steve and Jenny for 999 Call for the NHS, and a bunch of grey and black -clad folk in the public gallery. We have no idea who they were. Meanwhile outside the court buildings, about a hundred campaigners held a #JusticeforNHS rally.
Pink and yellow banners, ribbons, placards splashed colour across an otherwise dull precinct outside the court buildings as speakers from across the country gave short testimonies about the effects to patients of severe cuts and changes to the NHS in their region. The picture they painted was one of closures, restricted care and threats to patient safety and access to care.
As the rally ended, the court filled with brightly dressed campaigners who observed proceedings keenly and whose colourful presence enlivened the atmosphere.
The ACO contract payment model is based on paying a fixed amount for a whole range of health care services for a given population, regardless of how many patients receive treatment or how complex that treatment is.
David Lock explained that one of the key hinges of the argument about why the ACO contract payment mechanism in unlawful is that the 2012 Health and Social Care Act legislated for the NHS to operate as a managed market with competition between providers for contracts and patients on the basis of quality NOT price. So anything like the ACO contract’s Whole Population Annual Payment that served to drive down payment for health care services would go against the 2012 Health and Social Care Act.
The judge asked a number of questions to clarify what the National Tariff means in the 2012 Health and Social Care Act and concluded that as well as meaning a price for specific services, it is also “sort of delegated legislation” which he described as “mandated rules given to Monitor to balance the interests of commissioners and providers.”
David Lock then started to pick apart inconsistencies in NHS England’s position, to much head shaking by NHS England’s barrister and much passing of notes from the NHS England and Monitor solicitors to the barrister. He concluded his explanation of the legal arguments about why the ACO contract’s payment mechanism is unlawful, by saying that because it does not pay for specified healthcare services, it is not in line with statutory procedures. And that the statutory scheme cannot be stretched so far, because that would abandon price.
The Judge said the argument was now clear.
However the NHS England barrister asserted that the National Tariff statutory scheme is so broad that it provides a “host of discretions to Monitor” about both price setting and the mandated rules it has to follow. And that “flexibility” included changing prices up AND down. And the “panoply of features awarded to Monitor” means it can basically change National Tariff specifications or services that are not specified in the National Tariff.
She claimed that one of the justifications of the ACO contract is to drive innovation in procedures which could be more efficient, and that is why Parliament gave Monitor such latitude in the HSCA 2012.
A point which the Judge returned to, saying that price competition based on innovation is not an evil, but price competition based on price alone would be.
This point seemed odd because if the NHS is a National Health Service, surely any innovation that increases efficiency should be introduced across the whole NHS, not in one Accountable Care Organisation in order to achieve a competitive advantage over another Accountable Care Organisation or another bit of the NHS which was not in an Accountable Care Organisation.
The NHSE barrister spent a fair amount of time waffling about issues that had no bearing on the question of whether or not the whole population annual payment mechanism in the ACO contract is lawful.
She also surprisingly told the judge that the outcome of this judicial review would have a bearing on the second judicial review of the Accountable Care Organisation contract in London in May, and put pressure on him to make a decision before then. This was very annoying since NHS England had objected to our application to have both Judicial Reviews heard at the same time in order to save court time and costs, because they said the two Judicial Reviews concerned such different legal issues.
This is just the barest sketch of some key points. A bunch of information came out in court that will repay proper attention.
In his reply to NHS England, David Lock nailed various false arguments advanced by their barrister and reaffirmed the point that the 2012 Health and Social Care Act requires commissioners to pay providers the price payable under the National Tariff, and that this is not possible with the Whole Population Annual Payment.
We await Judge Kerr’s ruling with cautious optimism.
In the meantime, we want to point out (again) that we are not advocating the 2012 HSCA as a desirable piece of legislation. Far from it - our Judicial Review is simply pointing out that public bodies like NHS England are required to act according to the law, and 2012 HSCA is the law at the moment.
We can see from where whole population payment has been used by ACOs in other countries, that it is a mechanism for shifting risk on to patients, cherry picking them on the basis of financial decisions not clinical need. In the UK, combined with harsh financial system controls, this payment mechanism would shift financial risk to providers – and therefore to patients, as it would increase current pressures to restrict patients’ access to elective (planned) care. This would accelerate the development of a two tier health system, where those who can afford to pay go private and the rest are left with limited NHS care.
Our preferred form of payment - and what we have campaigned for since 2014 - is to reinstate the NHS by passing the NHS reinstatement bill, which removes commissioning and privatisation from the NHS and uses non-contract payment methods based on needs assessment and proper funding.
A huge thanks to all the campaigners who joined us in Leeds and for all the messages of support that we received. They meant a great deal to us and we hope we can all gather strength from one another in the coming months.
Jenny, Jo and Steve
And the 999 Call for the NHS team