Judgement reserved after Judicial Review hears how Accountable Care could change the NHS

Judgement reserved after Judicial Review hears how Accountable Care could change the NHS

25th April 2018

By Graham Smith

Judgement has been reserved in the High Court case which will determine if Cornwall Council can revive its ambition to take over health services through an Accountable Care Organisation.

Judge Tim Kerr promised that his ruling would come soon.  “This is a matter of some urgency,” he said.

Although Cornwall Council was not a party to the Judicial Review, the case is directly relevant to NHS England’s proposed “whole population annual payment” contract which underpins ACOs.  In December 2016 the council and NHS Kernow announced plans to move “at pace” to establish an ACO, but later re-branded their plans as an Accountable Care System and then an Integrated Strategic Commissioning Function.

Health and council chiefs are keen to provide a more “joined up” service, particularly in relation to Adult Social Care and the discharge of patients from acute hospital wards.  But there are concerns that any more significant pooling of budgets, particularly when combined with the council’s devolution ambitions, would herald the break-up of the National Health Service.

The campaign group 999 Call for the NHS went to Leeds High Court yesterday (Tuesday) in a bid to have ACOs declared unlawful.  There has been no scrutiny or debate in Parliament.  If Judge Kerr finds in favour of 999 Call for the NHS, the prospect of Cornwall Council taking over any significant part of NHS Kernow’s annual budget will disappear.

The campaigners said the proposed ACO contract is designed to “manage demand” – which they claimed meant 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,” they said.


Campaigners outside Leeds High Court yesterday

David Lock, for the campaigners, said that one of the key planks of his argument stemmed from the 2012 Health and Social Care Act.  This provided for the NHS to operate as a managed market with competition between providers for contracts and patients on the basis of quality, not price. Anything like the ACO contract’s whole population annual payment, that served to drive down payment for health care services, would be contrary to the 2012 Health and Social Care Act.

NHS England said that the national tariff scheme is so broad that it provides a “host of discretions” about both price setting and the mandated rules it has to follow.  That “flexibility” included changing prices up and down and changes to specifications.

The NHS added that one of the justifications of the ACO contract was to drive innovation in procedures which could be more efficient.

Judgement is expected before a second, separate Judicial Review next month.

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