Exclusive: Mental health trust threatens legal challenge over tariff

The trust chief executive, who spoke on condition of anonymity, said his organisation was actively discussing whether to apply for a judicial review of the policy which has been condemned by the mental health and community sectors as an example of “institutional bias” against them.

“We are considering a judicial review - as chief executive I know how much it would cost and my chair is quite happy for us to launch it,” he said. “Our view is that it would be great if we could do that with some other partners and we have put some feelers out to other organisations to say ‘is this something you feel so strongly about you would consider taking action?’.”

NHS England and Monitor have faced a barrage of criticism in recent weeks, including from health minister Norman Lamb, after the regulators decided to impose a 0.3 percentage point higher demand for efficiency savings on non-acute organisations in 2014-15. While acute providers face a reduction in tariff prices of 1.5 per cent, they face one of 1.8 per cent.

The two national bodies justified the differential by arguing acute trusts had to pay the costs of implementing the Francis report and Keogh review, which did not apply non-acute trusts.

The chief executive said any legal challenge would centre on the claim the tariff policy broke the government’s ambition for parity of esteem between physical and mental health, which is enshrined in its mandate to NHS England. A challenge would also highlight the failure to consult the sector in advance of the plans being announced.

“It is such a barmy decision we keep expecting it to be overturned any day. We haven’t made a final decision, we are still talking about it,” he said.

A coalition of charities and organisations representing the mental health sector including Rethink, Mind, and the Mental Health Network, are continuing to lobby NHS England alongside the Foundation Trust Network and NHS Confederation.

HSJ spoke to Paul Jenkins and Paul Farmer, chief executives at charities Rethink and Mind respectively, who both stressed efforts were continuing to change the policy. Neither ruled out a legal challenge.

Earlier this month, in the face of criticism, NHS England urged CCGs to consider using local freedoms to negotiate tariff prices with non-acute providers. However, HSJ has been told some of its local area teams, responsible for specialist commissioning, have been told by the national body that they have no room for negotiation.

One chief executive said: “Our local area team director went and asked and was given the explicit instruction not to negotiate on the deflator.”