NHS England is acting unlawfully by failing to properly involve and inform patients about its primary care commissioning decisions, a High Court judge has said.

In a ruling with wide ranging implications for the commissioning body, Justice Popplewell last week found NHS England had and continued to flout key sections of the NHS Act.

Royal Courts of Justice

Lawyers said NHS England could now face legal challenges over its historic decisions about primary commissioning

These require commissioners to ensure individual patients are consulted or informed about the “development and consideration” of decisions about or changes to primary care where they affect health services they might use.

The lawyers who brought the case claim NHS England could now face legal challenges over its historic decisions about primary commissioning.

According to court papers seen by HSJ, Justice Popplewell declared that NHS England “has acted unlawfully by reason of its failure to make arrangements for the involvement of patients in primary care commissioning decisions as required by the National Health Service Act 2006”.

The case was bought by lawyers from Leigh Day on behalf of Danny Currie, a patient registered at the Jubilee Street practice in Tower Hamlets, which was threatened with closure after NHS England scrapped the minimum practice income guarantee.

Although the commissioning body later agreed a two year funding agreement for the practice, lawyers for Leigh Day argued that patients such as Mr Currie should be involved in any decision that affected services they used.

Richard Stein, a partner at Leigh Day, told HSJ that the judge’s declaration “confirms that NHS England will be taking decisions about dealing with GP practices and the sector every day which are in fact unlawful until they put proper arrangements in place as they are required by law”.

“It is shocking that the body responsible nationally for producing guidance for other bodies to carry out these obligations haven’t done so themselves.”

Mr Stein said the declaration could mean that patients would have to be involved in discussions on changes to the GP contract, which are currently being held between NHS England and the British Medical Association.

According to the court papers, NHS England conceded it had acted unlawfully, telling the court it was “taking active steps to bring itself into compliance with this duty”.

NHS England has yet to respond to HSJ’s enquiries.