By Graham Smith
A landmark legal action is due to start today (Tuesday) to consider if the National Health Service can surrender large parts of its budget to other organisations.
The case has major implications for the way health and council chiefs in Cornwall hope to restructure services, and has the potential to re-launch the currently stalled “Kennally Care” project at County Hall.
A Judicial Review is scheduled to start at Leeds High Court this morning. Health campaigners are planning to demonstrate outside the court from 9am. The campaign group 999 Call for the NHS says it is bringing the action to defend the basic principles of the National Health Service.
NHS England had sought to introduce Accountable Care Organisations without any Parliamentary scrutiny or legislation. Health campaigners fear ACOs (later rebranded as Accountable Care Systems, and even later rebranded again as Integrated Strategic Commissioning Functions) will lead to treatment based on financial targets and profits, rather than clinical needs.
Model ACO proposals, published by NHS England last year, signal the potential for vastly increased privatisation of health contracts.
In December 2016 Cornwall Council and NHS Kernow announced plans to move “at pace” towards the creation of an ACO, alongside ambitious “devolution” proposals to commission health services direct from County Hall.
But as news of their proposals became more widely known, and protests became a regular feature of life at County Hall, the ambitions were lowered, and currently are limited to the use of existing “Section 75” mechanisms to “pool” only tightly-controlled budget headings in respect of adult social care. Clinical members of NHS Kernow’s governing board are also extremely unhappy about surrendering responsibility for patient care to Cornwall Council.
Plans to launch a “shadow” Accountable Care System with effect from 1st April were slowed, with a much more cautious approach to unified budgetary management. At the moment, the various separate bodies which make up the NHS, and Cornwall Council, have signed an “accord” to work closely together. But they do not yet have any detailed agreement to merge. Although County Hall officials are continuing to study ways of pooling budgets, they will make little progress if the courts rule the idea illegal. At stake, eventually, is a decision on who gets to spend NHS Kernow’s annual budget of nearly £800 million.
Today’s Judicial Review could set a legal precedent – allowing what in Cornwall had become known as “Kennally Care” – the creation of a single place, whole population, five-year single budget with the council’s chief executive, Kate Kennally, as the overall strategic commissioner of health services.
999 Call for the NHS says its case is based on “our deep concern that the Accountable Care Organisation contract is not only unlawful under current NHS legislation – but would lead to restrictions and denial of NHS care, and the abandonment of the core NHS principle of providing comprehensive care to all who have a clinical need for it, free at the point of use.
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“It would replace this with health insurance company principles, based on assessments of financial risk and returns.”
One of the campaigners, Joanne Land, said: “NHS England’s new Accountable Care Organisation contract is introducing a new funding mechanism which is a total departure from core NHS principles.
“This is because the contract will require the payment of a fixed capitated budget at the beginning of an annual period meaning providers will have to take the risk of offering treatment without overspending rather than the present system which pays NHS providers an agreed price for the treatments they actually deliver to patients.
“Add in financial fines for overspending and the incentive to keep any unspent money as profit, it’s plain to see that providers are going to start behaving just like insurance companies. And that is bad for patients.”
Fellow campaigner Jenny Shepherd said: “In our view, NHS England is playing fast and loose with existing NHS law about how prices are set and payments are made for health care provided to NHS patients. 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, it is the law.
“If NHS England wants to change price setting and payment methods for the provision of NHS services, it should do it in accordance with the law. If that means changing the law, that is something for Parliament – and the public that puts MPs there – to decide. What happens when government and its quangos decide they are above the law? It doesn’t bear thinking about.”
Some celebrities have sent messages of support, including film director Ken Loach, Actress Stephanie Cole OBE, and comedian/political commentator Jonathan Pie.
A separate Judicial Review, examining the lawfulness of ACOs, brought by several distinguished academics and doctors (and initiated by the late professor Stephen Hawking) is due to be heard 23rd – 24th May.
Both legal actions have been made possible by crowdjustice fundraising campaigns, raising hundreds of thousands of pounds to cover lawyers’ and court fees.