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The legal risks around amalgamating contracts to reduce A&E 4-hour breach fines

The latest wheeze adopted by "innovative" Hospital Trusts appears to be an attempt to take over contracts to operate a large number of minor injury units and then subcontract those contracts back to the minor injury unit providers. 

Why on earth would an NHS Trust wants to do this? The answer lies with the reporting criteria around 4-hour waits.  Patients are seen more quickly at minor injury units and accordingly these units easily hit the 95% target, sometimes achieving near 100% compliance (but they get no extra funding for doing better than 95%).  The existence of minor injury units also diverts less complex patients away from Type 1 A & E Departments, leaving the major units to treat more complex patients. The problem with hitting the 95% target lies with Type 1 A & E Departments which treat more complex patients and hence struggle to meet the target.  Any that fail to meet the target incur contractual fines for every patient over 95% who is not treated within the 4 hour limit. 

This "wheeze" is designed to increase the number of patients that a Trust running the Type 1 A & E Department can include in its 4-hour report. The aim is to increase the denominator against which the 95% target is calculated and thus, without doing anything to improve the performance at the major Type 1 A & E Department, make the contractual fines disappear.  

It works like this: A trust which operates a Type 1 A & E Department with say 50,000 patients attending each year has to treat 47,500 patients within 4 hours to avoid paying fines.   If it performs at 85%, treating 42,500 patients within 4 hours, it will pay fines for the late treatment of 5000 patients.  However, this wheeze will work if it could amalgamate its own figures with another 100,000 patients who are treated at 4 minor injury units (each of which treat sat 25,000 patients a year and all of whom).  Instantly, the denominator becomes 150,000.  The 95% target therefore becomes 7,500 and, if the minor injury units continue to perform, by magic the contractual fines are wiped out. 

Is this lawful? The simple answer is "no".  The CCG cannot simply "transfer" the contracts without due process that would breach both the Public Contracts Regulations 2015 and the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013.  So it’s a case of "nice try but no". 

Where a CCG breaches these procurement regulations, it opens itself up to a claim for damages from any other provider. There are plenty of potential providers of minor injury unit services and a CCG with therefore reacting in a seriously irresponsible way if it followed this "wheeze". Also, this wheeze will, of itself, do nothing to improve patient services.