Government wins legal battle over accountable care organisations and the NHS

The Health Secretary has the power to create the new accountable care organisations (ACO) within the NHS and changes in events meant that a proper consultation would now proceed, the High Court has ruled.

Mr Justice Green gave judgment in a case brought by four clinicians - and also backed, until his death, by the physicist Professor Stephen Hawking – against the Secretary of State for Health and the National Health Service Commissioning Board.

In Hutchinson & Anor, R (on the application of) v The Secretary of State for Health and Social Care & Anor (Rev 1) [2018] EWHC 1698 the judge said the case concerned “an issue of great public interest” - whether the minister had the power to promulgate the ACO model for providing health and social care in England.

He explained that this would effectively allow local clinical commissioning groups to commission larger organisations to provide health and social care than those now normally used, possibly only one in each area.

NHS England chief executive Simon Stevens, the judge noted, had admitted in evidence to the Public Accounts Committee that the ACO model “pushed at the very edges of the statutory regime”.

Mr Justice Green concluded that the ACO was an optional model contract which CCGs could adopt but were not obliged to and was within the power of the Health Secretary and the Board to propose and to base a consultation upon.

The judge said that it was already within a CCG’s power to award a contract to a single entity covering the entirety of service provision for its area and to enter a contract where the provider is required to arrange for the provision of health care services.

“It necessarily follows that it is within a CCG's powers to permit an ACO to take all the decisions which must be taken to perform that ACO's contractual duties,” he said.

“Provided the ACO contract itself is lawful then the extent of the decision making under that lawful contract raises no separate issues.”

The claimants had originally also argued that the Health Secretary had failed to consult but subsequent events had changed the timings and a consultation was now due, which Green J said meant “the principles of transparency and clarity have not yet begun to apply”.

He rejected the defendants' objections that there was undue delay in bringing the claim for judicial review and that the claimants lacked locus.