Court of Appeal hears NHS accountable care organisation dispute

The Court of Appeal is this week hearing a campaign group’s challenge to the government’s decision to create Accountable Care Organisations (ACOs), now called Integrated Care Providers.

The case is being heard on 20 and 21 November by the President of the Family Division, Lord Justice Haddon-Cave and Lady Justice Nicola Davies.

The government announced the ACO proposals in August 2017. These proposals include the introduction of a lump-sum payment for health services, regardless of service provided and number of users.

In May this year High Court judge Mr Justice Kerr dismissed the challenge brought by 999 Call for the NHS.

The claimant campaign group argues that the government's proposals are unlawful as itdoes not have the powers to make such fundamental changes under its existing legislative framework.

999 Call for the NHS also claims that the new contracts for ACOs could threaten patient safety by forcing care providers to potentially restrict access to treatment.
 
The group says it is concerned that the proposed changes will mean medical professionals will be forced to make decisions around the care a patient receives on the basis of the cost of a treatment rather than medical need of a treatment.

It also claims, more broadly, that the core principle of the NHS of providing comprehensive care to all is being threatened by the introduction of ACOs/ICPs.

Lady Justice Arden granted permission for 999 Call for the NHS to appeal in August 2018. Amongst other things she said that: “A key question of statutory interpretation on this appeal…is whether the judge was right to hold that section 115 of the Health and Social Care Act 2012 does not require ‘visible prices fixed in advance for each individual treatment episode.’ (judgment, [95]). This is clearly an arguable question of law…Therefore I give permission to appeal on all grounds…”
 
Rowan Smith, solicitor at law firm Leigh Day, said: “Our clients are concerned that the introduction of ACOs amounts to an under-the-radar, top down reorganisation of the NHS. Such fundamental changes in the way health services are commissioned require primary legislation. It is our clients’ belief that the government should go back to Parliament and seek a democratic mandate for such a change.

“The group sees the government’s failure to bring forward legislation as leaving it with no other option but to try the legal equivalent of fitting a round peg in a square hole. This is not acceptable to the campaigners we represent, and we consider it to be clearly unlawful. We very much hope the Court of Appeal will ensure the government is prevented from continuing down this path.”