Hutchinson & Anor, R (on the application of) v The Secretary of State for Health and Social Care & Anor (Rev 1), Court of Appeal - Administrative Court, July 05, 2018, [2018] EWHC 1698 (Admin)

Resolution Date:July 05, 2018
Issuing Organization:Administrative Court
Actores:Hutchinson & Anor, R (on the application of) v The Secretary of State for Health and Social Care & Anor (Rev 1)
 
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Neutral Citation Number: [2018] EWHC 1698 (Admin)

Case No: CO/22/2018

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 5/07/2018

Before :

MR JUSTICE GREEN

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Between :

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Jenni Richards QC and Peter Mant (instructed by Harrison Grant Solicitors) for the Claimants

Clive Sheldon QC and Holly Stout (instructed by the Government Legal Department) for the First Defendant

Fenella Morris QC and Rose Grogan (instructed by DAC Beachcroft LLP) for the Second Defendant

Hearing date: 23 and 24 May 2018

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Draft 9 July 2018 13:32 Page 3

MR JUSTICE GREEN:

A Introduction

(i) The dispute

  1. This claim for judicial review concerns an issue of great public interest, namely whether the Secretary of State and NHS England have the lawful power to promulgate a new model for the provision of health and social care in England. The new model is termed an Accountable Care Organisation (``ACO'' or ``ACO model'').

  2. Under existing legislation, the provision of health care is arranged by local Clinical Commissioning Groups (``CCGs''). These have wide discretion as to the models of care provision that they commission through procurement processes. At the risk of over-simplification CCGs tend in practice to arrange for the provision of services in their respective localities through a range of different providers on, often, relatively short-term contracts (under current planning guidance typically of at least 2 years). This can mean a proliferation of providing bodies and a lack of joined-up care.

  3. The ACO model seeks to achieve greater integration. In practice it would involve CCGs commissioning much larger organisations to provide health and social care. Relative to the present situation this would mean far fewer providers (possibly only 1 per locality) operating over much longer durations (circa 10 years) who could be responsible for the preponderant part of all decisions relating to the provision of care and for the allocation of resources. The object is to encourage an increase in the integration of service providers with a view to, it is said, creating a more efficient and seamless health and social care path for patients. The seeds of this proposal were sown in a published NHS England document in December 2016. Full details, including draft model contract terms for the creation of ACOs, were only, however, set out in formal NHS England documents published in August 2016.

  4. In evidence to the House of Commons Public Accounts Committee, the Chief Executive of NHS England, Mr Simon Stevens, acknowledged that the ACO model pushed at the ``very edges'' of the statutory regime. There is no doubt that the model is transformational and radical. Elsewhere, NHS England describes the proposal as one which ``dissolves the divide between health and social care''. Unsurprisingly therefore views differ as to its pros and cons. The merits of the proposal are not, however, the business of this court. As matters stand there are two substantive issues of law that fall for determination coupled to a series of procedural disputes.

    (ii) How the issues have arisen

  5. The issues of law that I must rule upon arise in the following way.

  6. Following publication of the explanatory NHS England documents in August 2016 a group of academics, practitioners and others potentially affected by the proposal engaged in correspondence with the Defendants airing their concerns about the vires of the proposal coupled to a complaint that it was being introduced without proper consultation. They also complained that the proposal lacked clarity in material respects.

  7. On 11th September 2017 the Secretary of State published draft regulations designed to implement and provide the regulatory framework for the ACO model. In the regulations a variety of different definitions were used to describe an ACO. There were no explanations provided which accounted for the differences.

  8. Over the ensuing weeks the Claimants wrote to the Defendants developing their concerns. On 29th September 2017 the Claimants wrote to NHS England seeking information and as a possible precursor to a pre-action protocol letter. The Claimants expressed their concerns that NHS England had published a draft model ACO contract ``...in a form ready for use''. It was observed that the new contract was to be introduced upon the basis of only very limited public engagement. It was said that even though there appeared to be some form of wider consultation envisaged this was incompatible with the model contract being ready for use. It was also said that prima facie the proposals were so radical as to fall outside of the powers of CCGs to adopt. Various exchanges then occurred between the parties.

  9. A pre-action protocol letter was sent on 2nd November 2017. This specifically attacked, inter alia: (i) the draft regulations published by the Secretary of State; (ii) the lack of a proper consultation about the proposals; (iii) the vires of the ACO model. A detailed response was sent by the GLD on 17th November 2017. In that response (at paragraph [8]) it was acknowledged that it would be ``illogical'' to embark upon a consultation of a draft model ACO contract that it did not have the power to issue and it therefore made sense for the legislative framework to be put in place first. It was denied that there was a need for the Secretary of State to conduct a full-scale consultation. In paragraph [10] it was confirmed that the model ACO contract could be used by ``early adopters'' ie in advance of consultation. On 3rd November 2017 the British Medical Association (``BMA'') sent a letter to the Secretary of State raising similar concerns. On 1st December 2017 the Claimants sent a second pre-action protocol letter to the Defendants emphasising concerns as to lack of consultation.

  10. The Claim for judicial review was filed on 11th December 2017 and this raised all of the outstanding issues including the alleged failure properly to consult.

  11. Subsequently several events occurred.

  12. First, the Claimants had disclosed to them (on 15th December 2017) a communication whereby NHS England pointed out to the Secretary of State that the way in which his officials had described the ACO model in the draft regulations risked conflating (potentially improperly) the statutory roles of CCGs (as commissioners) and third parties (as service providers) and that in certain other respects the descriptions risked being misleading or inaccurate. The Secretary of State took these points on board and agreed to modify the proposals. Second, in late January 2018 the Defendants agreed to initiate a national consultation on the ACO proposals, including the draft ACO model contract. Third, with the advent of judicial reviews In addition to the present judicial review a claim was filed alleging that the payment system proposed for ACOs was unlawful. Permission was granted on 21 December 2017. The claim was dismissed on 15th May 2018 in Shepherd v National Health Service Commissioning Board [2018] EWHC 1067 (Admin). relating to these proposals and the purdah presented by the imminent local authority elections, a decision was taken (in April 2018) to defer the consultation and any draft regulations that the Secretary of State might promulgate until the conclusion of the legal challenges.

  13. In the light of these developments the concern of the Claimants (which had formed Grounds II and III of the initial claim for judicial review) to the effect that the Defendants were acting unlawfully in failing to conduct a proper consultation have been addressed. This leaves the Claimants' concerns about the legality (``vires'') of the proposal and concerns about the lack of clarity and transparency of the scheme heightened by the absence of a common accord on key issues between the Secretary of State and NHS England (as referred to in paragraph [12] above).

  14. This is the context in which the substantive issues arise. The Defendants however rely upon these shifts and turns in events to argue: (i) that there is now nothing for there to be a judicial review about since everything has returned to the melting pot of the consultative process; (ii) that it is therefore premature for there to be any challenge pending the outcome of the consultation; (iii) that in any event not only is the claim premature (pending a consultation) but it is also too late because the Claimant delayed following the August 2017 publications for more than three months before filing the claim for judicial review; and (iv) that the real persons affected by the ACO proposal are service providers and persons such as the Claimants do not have locus to bring the claim. There has emerged a further disagreement as to the precise nature and core components of the ACO policy itself.

    (iii) The issues

  15. The issues as they now arise can be formulated in the following way:

    (i) Issue I: What is the ACO policy?

    (ii) Issue II: Is the ACO policy ultra vires?

    (iii) Issue III: Does the ACO policy breach the principle of clarity and transparency?

    (iv) Issue IV: Must the claim for judicial review fail for prematurity?

    (v) Issue V: Must the claim for judicial review fail for delay?

    (vi) Issue VI: Do the Claimants have locus to bring the claim for judicial review?

    (iv) Conclusion

  16. The conclusions that I have arrived at may be summarised as follows.

  17. First, the ACO policy is based upon an optional model contract which CCGs are empowered but not obliged to adopt for their commissioning functions. If they adopt the model they then have discretion as to the extent of its use temporally, geographically and as to subject matter. Notwithstanding this discretion it is a reasonable inference to draw from the facts that the Secretary of State and the NHS England would promote...

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