High Court to hear challenge to change of control of London GP practices from local GPs to a US-based corp

Background

The core issues in this case concern how an NHS commissioning body exercises its discretion to agree a change of control of NHS services, and in particular the test to be applied and the extent of scrutiny required.

The High Court has granted permission to hear a challenge to the decision of North Central London Clinical Commissioning Group (“NCLCCG”) to authorise a “change of control” of six GP practices from AT Medics Ltd to a company controlled by a large US corporation.  NCLCCG agreed that AT Medics could sell its GP practice to Operose Health Ltd, which is controlled by US-based Centene Corporation. Twelve other clinical commissioning groups have followed suit, authorising a change of control to the same effect based on the same due diligence, which is under challenge. The case potentially affects ownership and control of a total of 49 GP practices and an estimated 375,000 patients in London.

The decision is challenged as unlawful on the grounds that: a) the NCLCCG had misdirected itself in its exercise of statutory discretion by implementing a presumption that it should authorise the change of control which fettered its discretion, b) when authorising the change, it arbitrarily restricted the factors it decided it would take into account by confining them to the information obtained during the due diligence process, and excluding from its consideration the suitability of the new corporation or its financial stability, and c) NCLCCG had failed adequately to consult, or involve, patients and stakeholders before authorising the change, notwithstanding that the authorisation of change is (or is likely to be) a matter of significant public interest.

Although discretionary, the decision to authorise change of control is subject to NCLCCG’s general duties as a public body as set out in section 83(1) and sections 13C to 13E of NHS Act 2006, which includes the duty to secure the provision of primary services and to exercise its functions effectively and economically with a view to improvement in quality of those services. The challenge is supported by serious concerns about the poor financial state of the new corporation which is contended to put effective and economical provision of services at risk.

The case has had significant public interest and featured in the national press.

Leon Glenister is acting for the Claimant, Anjna Khurana, led by Adam Straw QC and instructed by Anna Dews of Leigh Day.

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