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Is the NHS facing a post-election wave of Judicial Reviews?

It is rare that the editor of a major journal predicts that a public service will face a "wave of judicial reviews". However that is the conclusion of the Alistair McClellan, editor of the Health Service Journal in a recent editorial

What is the problem that has left the astute Mr McClellan fearing that NHS bodies will be spending more time with their lawyers? It is the fact that the NHS is re-organising itself in accordance with Sustainability and Transformation Partnerships – the new name for the overarching bodies that run NHS regions – which cross over the roles of NHS commissioners and NHS providers. 

Whilst this all seems sensible in theory, the government was so spooked by attempting to get the last NHS Bill through parliament that they are trying to reform the NHS from the inside without passing any new primary legislation. 

Mr McClellan is right that this causes major headaches which, if it is not corrected, will only end up before the courts. Some examples are: 

  • NHS bodies may well not have power to contract for national tariff services at less than national tariff prices as a result of section 115 of the Health and Social care Act 2012, because Monitor’s powers are limited to upwards only price rises. 

  • There are huge unresolved conflicts between setting prices for non-tariff services through a process of “constructive engagement” and on terms that represent the best interests of patients as required by the rules of the national tariff and the arms-length tender processes followed by some NHS commissioners just seeking to follow the Public Contract Regulations 2015.

  • CCGs appear to have forgotten that they still have a statutory duty to commission according to an Annual Commissioning Plan (see section 14Z11 of the NHS Act 2006) and that they have to go through a system of formal public consultation (not just the light touch “patient involvement” under section 14Z2) before they can take any significant commissioning decisions. Relying on STP plans as a substitute for an Annual Commissioning Plan is almost certain unlawful. 

Judicial reviews are, of course, unlikely to arise if NHS bodies do not make controversial decisions. But if STPs press ahead with imposing unpopular changes to local NHS services, the lack of any statutory underpinning for the STP may well present serious legal problems for the NHS.