Green light given to judicial review of accountable care organisations in NHS

Campaigners including scientist Professor Stephen Hawking have won permission from the High Court to challenge the government’s planned creation of accountable care organisations (ACO) in the NHS.

They argue that Parliament has not given the Department of Health the power to make this change, which would see ACOs formed by partnerships of hospital trusts, community organisations and local authorities to act as providers to NHS commissioners. Opponents say that this structure would facilitate privatisation.

Lobby group Doctors for the NHS, which has run the campaign against ACOs, said their introduction would be unlawful as this would breach principles that require decisions about the NHS to be clear and transparent.

The government only last week conceded there would have to be a consultation on launching ACOs.

Walker J decided the arguments on the need for primary legislation and on transparency merited a full hearing in March.

Doctors for the NHS chair Dr Colin Hutchinson said: “These radical changes will eventually affect everybody in England. There needs to be a sound legal basis before 10 year contracts worth billions of pounds are outsourced to these new organisations.

“We are delighted that the court has decided that our arguments deserve to be examined in detail.”

Campaigners have raised more than £180,000 to fight the case from crowd funding, but the judge has declined to cap costs if they lose, and they believe they could face costs of up to £450,000 were that to happen.

They are considering an appeal against the rejection of the cost cap and have also suggested to the government that each side should agree in advance to bear its own costs.

NHS England said ACOs were a response to “widespread support for ending the fragmented way that care has been provided to improve services for patients and the NHS has been working towards this in a number of ways”.

They would, it said, allow health and care organisations to formally contract to provide services for a local population in a coordinated way and would not be a new type of legal entity but “simply be the provider organisation which is awarded a single contract by commissioners for all the services which are within scope for the local accountable care model”.

The Department of Health said: “ACOs are simply about making care more joined-up between different health and care organisations.

"Our consultation on changes to support ACOs is entirely appropriate and lawful.”

Mark Smulian