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Judicial review of private patient income cap begins

A judicial review of Monitor’s interpretation of the foundation trust private patient income cap has begun following a challenge by trade union Unison. 

Unison had accused NHS foundation trust regulator Monitor of failing in its legal duty in the way it capped income from private patient work.

Our concern is that there will be weak interpretations of how foundation trusts conduct themselves, leading to profits rather than patients being more important

The UK’s largest public sector union said Monitor had issued legally flawed financial reporting instructions to NHS foundation trusts regarding the private patient income cap.

As a result, the statutory limit on the amount of private patient income trusts are allowed to receive may have been breached, a judge was told.

Monitor is arguing it has discretion on how to interpret the law, and the Unison interpretation would lead to “undesirable” results and affect the quality of service to patients.

Unison head of health Karen Jennings said outside court: “Our concern about the marketisation of the NHS is that there will be weak interpretations of how foundation trusts conduct themselves, leading to profits rather than patients being more important.”

In court, Peter Oldham, appearing for Unison, accused Monitor of adopting too narrow an interpretation of what amounted to “income derived from private charges” under section 44 of the National Health Service Act 2006.

He asked Mr Justice Cranston, sitting at the High Court in London, to rule on “what is and what is not PCI”.

Michael Fordham QC, appearing for Monitor, argued Unison’s legal challenge should not be heard because the law was due to undergo revision and there might be new legislation some time in the future.

Rejecting Mr Fordham’s argument, the judge said the review and possible legislation were “so far in the future” that the challenge should go ahead and the court decide the issue before it.

The hearing continues.

Readers' comments (2)

  • Of course it is one of the core functions of the creation of the FT's to blur the distinction of private and public health services. Unison is right but it is fighting a rearguard action and they should focus as much on lobbying the government to abolish FT status altogether. In the past there has been doubt that ordinary trust fully costed private treatments and in some cases they even failed to collect all that was due. Are all FT's individually purchasing USA style accounting and invoicing systems?

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  • And the whole patient choice debate, that says the NHS should NOT be the automatic provider of treatment, allowing the private sector to compete equally further leads to the situation of HEALTHCARE in the UK being privitised by Labour!

    The NHS will still be public....but if the work it does is eroded over time to be very little, and PCT's buy services from the private sector, what is the difference.?

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