• Campaigner launches judicial review against NHS England over new national contract
  • Review papers argue NHS England’s accountable care organisation contract is “unlawful”
  • Claims the contract breaches the Health and Social Care Act

A judicial review has been launched against NHS England, claiming its accountable care contract is “unlawful”, HSJ has learned.

A campaign group, backed by law firm Leigh Day, has lodged a judicial review claiming the contract for accountable care organisations breaches the Health and Social Care Act 2012.

NHS England said it would “strongly resist” the claim and the “mistaken campaign” was an attempt to “frustrate the move to more integrated care”.

The law firm submitted review papers on Monday on behalf of the “999 Call for the NHS” campaign group, arguing the contract breaches sections 115 and 116 of the act.

These sections relate to the price a commissioner pays for NHS services and regulations around the national tariff.

The judicial review argues that under current legislation, prices paid for NHS services must reflect how many patients receive the care under that specific service, whereas the ACO contract allows commissioners to give providers a fixed budget for an area’s population.

Rowan Smith, the solicitor leading on the case, said there would need to be a change to legislation for the ACO contract to be used.

In August, NHS England published a national contract for commissioners to use when creating an ACO.

The contract, which can also be used for other types of new care model, allows commissioners to award a fixed price contract to a single organisation to provide NHS services for a whole population.

Earlier this week, HSJ reported that efforts to set up two high profile new care models in Greater Manchester have been scaled back due to problems with NHS legislation and VAT rules.

In a statement, 999 Call for the NHS said: “The new ACO contract does not link payment to the number of patients treated and/or the complexity of the medical treatment provided, as required by the Health and Social Care Act 2012, but is based on a fixed budget for an area’s population.

“[We are] deeply concerned that the contract, if implemented, would threaten patient safety and force hospitals and doctors to restrict treatment, making decisions based on money not clinical judgement.

“This is because a fixed capitated budget would fail to ensure that there would be enough money to meet the cost of delivering NHS services to the required quality standard.”

An NHS England spokesman said: “The NHS will strongly resist this mistaken campaign to frustrate the move to more integrated care between hospitals, mental health and community services.

“The inevitable effect would be to fragment care and drive apart the very people who are now rightly trying to work more closely together on behalf of the patients they jointly serve.”

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