By Graham Smith
Cornwall Council and NHS Kernow have been given seven days to halt their plans to set up “Kennally Care” or face legal action.
Lawyers Leigh Day yesterday (Tuesday) served formal notice of separate Judicial Review proceedings against the council, unless officials wait for the imminent outcome of two separate legal challenges to the premise of Whole System Plan Proposals (WPAPs).
The law firm specialises in Judicial Reviews and has won a number of high profile cases against the government. Its letter, served on officials at County Hall, says: “Given the lawfulness of WPAPs is currently under scrutiny by the courts (permission to apply for judicial review has been granted and a substantive hearing is listed for April 2018), we consider that the only reasonable step for the relevant authorities in CIOS to take is to postpone the pilot ACS until after the Judicial Review has concluded.
“Otherwise, the relevant authorities would be unreasonably placing themselves at legal and cost risk: the former if the ACS relies on an unlawful WPAP model; and the latter if additional resources are committed to plans which ultimately have to be reversed as a result of any judgment in the Judicial Review.
“Such a course of action appears particularly prudent in the context of NHS England’s announcement on 28 January 2018 that a second wave of ACSs will be delayed nationally.”
Leigh Day are already acting for health campaigners 999 Call for the NHS, due to be heard at Leeds High Court on 24thApril. A separate Judicial Review is being brought by health policy expert professor Allyson Pollock and the celebrated astrophysicist professor Stephen Hawking.
The legal challenge is for “Whole System Plan Proposals” to make it clear that the council cannot escape litigation simply by changing the name of its proposed restructure: since December 2016, the council has called it an Accountble Care Organisation, an Accountable Care System (later combined with an Accountable Care Partnership) and currently an Integrated Strategic Commissioning System.
All structures involve pooling budgets across the NHS and placing overall strategic commissioning decisions with the council’s chief executive, Kate Kennally
The council’s cabinet is due to sign off on Kennally Care on 28th March, based on a widely-ridiculed “business plan” now more than six month old, which seeks to save £17 million in health costs, in part, by introducing minimum alcohol price controls at the Cornish border. A growing number of Cornwall’s GPs are starting to voice their alarm at the proposals and NHS Kernow, although theoretically an “equal partner” in the WSPP, appears doomed if the Integrated Care System becomes a statutory body in its own right.
More than 150 MPs have now signed an Early Day Motion demanding that the government pause its restructure of the NHS pending a Parliamentary select committee inquiry.
The Leigh Day letter concludes: “please confirm within 7 days that both the Council and the CCG will categorically agree to pause the implementation of the ACS pilot (including the cessation of any new contracts based on a WPAP model) until after the Judicial Review has concluded. If you refuse to do so, we will advise our client on taking steps towards bringing a judicial review claim against the lawfulness of such refusal and/or the ACS plans in CIOS, along with an application for interim relief.”
Neither the council nor NHS Kernow has yet responded to the threat of legal action.