Mr Justice Green has now decided who should pay the costs of the case, and we’re pleased to say that his decision is good news.

Usually, the loser has to pay the winner’s costs, but on this occasion he has ordered the government and NHS England to pay us  our costs up to 18th January 2018 because “the Defendants changed their minds about full nationwide consultation and the use of the ACO model by early adopters” and also because “in some measure there was a degree of confusion caused by the use by the Secretary of State of misleading language to describe the process of appointment of ACOs (designation) and as to the issue of delegation”.

He also ordered us to pay only 65% of the defendants’ costs after that date because they had failed in their arguments that the case was brought too late, and that we did not have standing to bring the case, but more so, it seems, because he said we had “acted in the public interest in bringing the claim and have identified some  serious and important issues which will need to be considered  during the course of the consultation, the substance of which will have been improved by the airing and ventilation of the Claimant’s concerns and criticisms". The judge also noted that we had "succeeded on certain subsidiary points of law arising under the outstanding substantive grounds".

It’s now for the lawyers to work out exactly what this means in pounds and pence, taking into account as well the cost capping  order - though one way or another we don't expect anything to be left over.

Despite our disappointment at the judgment, we have taken heart  from the judge’s order and comments, and consider it a vindication of the case having been brought and the massive support from so many people. It also underlines the importance of the promised consultation.

We've pasted a screen shot of the judge's order below.

Colin Hutchinson, Allyson Pollock, Sue Richards, Graham Winyard

Today the High Court handed down its judgement on the judicial review we brought against the Secretary of State for Health and Social Care and NHS England on their introduction of Accountable Care Organisations (ACOs).  We had originally brought our claim on four grounds - two on the lack of proper consultation, one on the legality of the idea itself, and one on grounds of lack of clarity and transparency.  We withdrew our claim on the consultation grounds when our opponents conceded that they would not proceed without a full national consultation, so this success was in the bag.

Unfortunately, the Court has found against us on the law on the other two grounds. 

On legality - whilst making clear that he was not deciding on the merits of ACOs, and acknowledging that we raised “perfectly good and sensible questions…..about the ACO policy and the limitations of the terms and conditions in the draft ACO Contract” - Mr Justice Green decided that the ACO policy is lawful because the Health and Social Care Act 2012 gives very broad discretion to Clinical Commissioning Groups when commissioning services.

And on clarity and transparency – whilst resoundingly rejecting the government’s argument that the principle did not apply “in relation to what by common accord is intended to amount to radical and transformational changes in the way in which health and social care is delivered” - he decided that the principle was not yet engaged. 

There is more about the judgment in ‘Background’ below. 

We have decided not to appeal against this decision for several reasons.

Apart from the extra costs involved, our opponents have already been forced to change their plans. In order to win the case, they had to argue that ACO contracts were just like other provider contracts, and not the fundamental change to the governance of the NHS that we know they intended. The judge recounts in detail how their position changed as they began to appreciate the power of our claim.  The commissioning functions of CCGs were to be - illegally - delegated to ACOs - but instead are now reinforced, and if the government wishes to continue on the original path to creating ACOs, primary legislation will be needed and CCGs will have to retain sufficient staff and resources. The Health and Social Care Select Committee has called for legislation, and the Prime Minister included the possibility of new legislation for the NHS in her speech a couple of weeks ago. In addition, the promised consultation will have to be lawfully conducted, and any eventual ACO contract  - in Dudley, Manchester or wherever – will have to be lawfully entered into. 999 Call for the NHS are still engaged in legal action, seeking leave to appeal the decision in their judicial review, but for us, the campaign moves out of the courtroom – at least for now – and continues in the local and political arenas, and on to the consultation.

We are extremely grateful to the thousands of people who have allowed us to bring this challenge. Thank you again from the bottom of our hearts for all your encouragement and financial support. We do not believe that this has been wasted, and we hope you agree. We deeply regret the judgment and we imagine you will share our disappointment. But we hope its effect will be to strengthen resolve to hold the government to account during the consultation, and raise public awareness of the issues at stake if contracts for billions of pounds of public money lasting ten or more years are awarded to new bodies not established by statute, which could be partly or wholly private companies, and which could outsource all their services if they wished.

Colin Hutchinson, Allyson Pollock, Sue Richards, Graham Winyard

Background

Accountable Care Organisations (ACOs) were the flagship in NHS England’s Five Year Forward View for the NHS when our campaign began last autumn. ACOs were put forward as a way to “effectively end the purchaser-provider split” and to “dissolve the boundary between health and social care”. Draft model ACO contracts were published “….in a form ready for use”, despite very limited public engagement. The Secretary of State was intending to lay regulations before Parliament, without any requirement for Parliamentary scrutiny, that would allow 6-10 ACOs to be up and running in April 2018.

Soon after the start of our campaign, NHS England rapidly accepted that proper consultation on their policy and the ACO contract would have to take place before any ACOs could be established.  The Secretary of State also put on hold the proposed regulatory changes, pending the outcome of that consultation.  The challenge forced a policy retreat to the position that ACOs would simply be providers of care services, with all the commissioning functions remaining with the CCGs.

We asked the Court to decide whether the issue of an ACO contract would put a Clinical Commissioning Group (CCG) in the position of unlawfully delegating many of its statutory functions in complex contracts, worth many billions of pounds and lasting ten or more years, to new bodies that have not been established by statute and which could be partly or wholly private companies and which could outsource all of their services if they wished.

Mr Justice Green made it very clear that he has not expressed a view on whether the ACO policy is a good thing or not. A judicial review can only decide whether a policy is lawful or not. In this case, the Court has decided that the NHS Act 2006, as amended by the Health and Social Care Act 2012, grants a very wide discretion to CCGs in performing their role and would allow a CCG to award an ACO contract. Whether it is in the public interest for them to do so is not an issue for the Court. 

Throughout their defence, NHS England emphasised that the role of CCGs remains - in assessing the needs of its population, drawing up and putting out to tender these hugely complex contracts, with the associated quality terms; monitoring the delivery of the contracts and varying them with changing needs and priorities; approval of sub-contracts; maintaining the obligations of the CCG if service reconfiguration or hospital closures are envisaged; and picking up the pieces if the contract fails to deliver, or the ACO walks away from the contract. We do not see that this is  compatible with “ending the purchaser-provider split” which was their expressed intention in planning to introduce ACOs. It would not allow CCGs to be radically slimmed down and calls into question the wisdom of introducing an additional, less publicly accountable, and more costly, tier of management into the NHS, drawing even more money away from front-line services. 

We also challenged the Government that it was failing in its common law duties of clarity and transparency by not providing a consistent account of its policy intentions. At the outset of our action, the Government had intended to allow ACO contracts to be awarded before any public consultation. Mr Justice Green observed that since “the defendants retreated to the position of the pre-consultation phase”, those duties can be addressed through the consultation process, which he expects to be “informed by the arguments and evidence that have emerged in this case”. 

He accepted that we have raised “….many other perfectly good and sensible questions….. about the ACO policy and the limitations of the terms and conditions in the draft ACO Contract. These can, and properly should, be raised in the course of the consultation.” He made it clear how he expects that consultation to be carried out. One of our priorities is now to prepare for the consultation and to raise public awareness of the issues at stake.

We are disappointed that the Court has reached these conclusions, but this judgment makes it clear that, if we do not want our NHS to be run through a complex and inflexible web of commercial contracts and subcontracts, the existing law needs to be changed. In this context, we welcome the commitment of Jonathan Ashworth, Shadow Secretary of State for Health, to draw up more detailed Labour legislation, based on the NHS Reinstatement Bill, in preparation for the first Queen’s Speech of the next Labour Government.

We also remember our co-claimant, the late Professor Stephen Hawking, who supported our arguments with the strength of his reputation. We deeply regret that we have not won the legal argument, but we have come a very long way since the campaign started. Many of the issues that concerned us are now out in the open and this policy, which we believe carries grave risks to the continued provision of a universal, comprehensive, publicly-funded and publicly accountable health system, has not yet been implemented.

We all dedicate ourselves to continuing the fight to reinstate a health service that is publicly funded, publicly provided, publicly accountable and available to all on the basis of clinical need not ability to pay. Happy birthday NHS.

Report from the House of Commons Health Select Committee, June 2018

Some of our biggest concerns about ACOs received very welcome endorsement from Parliament’s Health Select Committee in their report Integrated care: organisations, partnerships and systems published this week. The report acknowledges the risks of trying to ‘work around’ the current laws, which were “intended for a different purpose: to facilitate choice and competition within the NHS,” and concludes “The law will need to change.” (Recommendation 38) That has been one of the key arguments in our Judicial Review.

While the report is sceptical of our argument that integrated care is opening the way to increasing involvement of private corporations in the NHS, we are delighted that Recommendation 17 supports another of our assertions: “We recommend that ACOs, if a decision is made to implement them more widely, should be established in primary legislation, as NHS bodies” and goes on to suggest how that might be achieved.

Recommendation 23 states “There has not been a clear and compelling explanation of the direction of travel and the benefits of integration to patients and the public.” This echoes the other Ground for our legal challenge, which is that the Secretary of State for Health and NHS England have breached their common law duties to publicly make clear their proposals to reorganise the NHS in England using ACOs.

The Report is strongly critical of the whole way in which Sustainability and Transformation Plans, and the different organisational structures that they have spawned (STPs, ACSs, ACOs, ICSs and ICOs), have been introduced in a top-down way, with excessive secrecy, with documents full of unintelligible jargon, and with very little input from the public, the broader health professionals and local government, and to an unrealistic and damaging timescale.

The recognition that organisational changes of this nature “are no substitute for effective solutions to funding and workforce pressures” is crucial to addressing the critical condition of the NHS.

We feel that this report vindicates the stance taken by JR4NHS, including the late and much-missed Prof Stephen Hawking, and by a host of other campaigners.  

Our two day hearing took place on 23 and 24 May and we await the court’s judgement.  Whatever the judge’s verdict, we have achieved a lot.  The Government has been forced to concede proper public consultation on ACOs, and Parliament seems finally aware of their dangers and shortcomings. Thank you all for your continued support.

A quick update to say that the hearing of the judicial review finished this afternoon.

After hearing our argument that the ACO policy is unlawful - and NHS England's and the Secretary of State's arguments that there's no policy outside the proposed contract which is just another contract, that there's no duty of transparency in these circumstances, and that the judicial review challenge is both too early and too late - Mr Justice Green reserved judgment.

Jenni Richards QC for the claimants made clear that the case raises fundamental questions about the future of the NHS, rather than being about the technical issues emphasised by the defendants, and the judge said he wouldn't be rushing to put out a judgment, so it’ll be a while yet before we know his decision.

Thanks to the claimants’ lawyers – Jenni, Peter Mant and solicitor Kate Harrison – for a fantastic job preparing and advocating the case, to the dozens who turned up at the Royal Courts of Justice yesterday and today to show their support, and many thanks again to everybody whose donations made this legal challenge possible.

We are now one week away from the hearing of the judicial review – it will start on the morning Wednesday 23rd May 2018 at the Royal Courts of Justice in the Strand in London and is scheduled for 2 days.

The five claimants are now four, following the death of Professor Stephen Hawking in March, but they remain inspired by how he continued to fight for the NHS right up to the end of his life. Here is what he helped to achieve:

When the case started in December 2017, NHS England was planning to introduce the first Accountable Care Organisations (ACOs) by April 2018.  The Government was planning to rubber stamp swathes of regulations so that ACOs could operate.

Following massive public support, NHS England promised a full national consultation on the plans.  And the Government said it will not make the regulations until after the consultation.  That satisfied 2 of our 4 grounds for judicial review – our first victories.

But, at worst, ACOs and the regulations have only been delayed by one year. The policy to introduce ACOs is still very much in place. We need to win this court case to land a serious blow to plans to privatise the NHS.

Thank you again everyone for all the support you have given to make this judicial review possible. The claimants will be outside the court from 9 a.m. on 23rd May, and people are welcome to join them, and to attend the hearing. More background information is set out below.

_______

Background

At the heart of our concerns is that, as envisaged in the policy, ACOs would need to take on most of the functions of Clinical Commissioning Groups (CCGs).  It would be ACOs, not the CCGs, that would be responsible for making most of the decisions about providing health and care services. 

But ACOs could be wholly or partly private organisations.  Unless the changes are blocked we could end up with for- profit health organisations making behind the scenes decisions on long term NHS provision. We are arguing that the law which says clinical commissioning groups must make those decisions is being subverted and that in planning and supporting ACOs, the Secretary of State for Health and Social Care and NHS England have fallen below public law standards of openness and transparency.

Public support has demonstrated how important it is it to maintain the NHS, to be involved in its decision making and not to allow control and decision making to be handed over from bodies which the people, through parliament, entrusted with the future of the NHS.

Win or lose, support for the JR has demonstrated that the public is not willing to hand over their NHS to unaccountable, unelected organisations nor to the private sector and the campaign will go on.

In the meantime, cuts and closure of services are occurring across the country, NHS buildings and land are being sold at knock-down prices and non-clinical staff are being transferred from NHS employment into newly-formed companies.  Those plans continue whatever the outcome of this judicial review, so it is important to support local and national campaigns resisting this asset-stripping.

The Secretary of State's and NHS England's lawyers have now filed their full defences and witness statements, still resisting as strongly as ever, and we are now considering these with our lawyers.

We have also now heard from our lawyers, and are pleased to say that no more money is needed for the judicial review that is due to be heard on 23rd-24th May 2018. This is because they have agreed with the claimants to continue acting on a reduced/conditional fee basis.

The site remains open until on Friday 30 March at 8 p.m., but we are no longer actively encouraging people to visit it. We will continue to post updates on the progress of the case.

Thank you once again to everybody who has donated - over 9,400 donations amounting to more than £280,000 across 3 rounds - a phenomenal response, which has made this case possible.

The responses to the sad news this morning of Professor Stephen Hawking's death have reflected his stature and reknown as a scientist. Our thoughts are with his family, friends, carers and close colleagues. We have been inspired by and will always be grateful for the way he was prepared from his unique position to highlight the plight of the NHS, robustly defending its core values of a universal and comprehensive service - publicly owned, funded and accountable - available to all on the basis of clinical need, and standing up to those who do not share them.  We were privileged to be joined by him as he continued to make this contribution right up to the end of his life, and our sadness today is accompanied by the thought that this judicial review is a testament to how much he cared about the NHS. The case continues, and he will be in our hearts all the way.

We have now reached our initial target of £100,000, with 2 days to spare. This means that we have raised over £280,000 altogether from over 9,000 donations - absolutely phenomenal by any reckoning.

And because we got a cost capping order last week, the money raised in Round 3 will go to our lawyers, who have been acting on a ‘reduced fee contingency fee’ basis, which means that they wouldn’t have been paid anything if we hadn’t raised funds via CrowdJustice. There aren’t many lawyers around who are prepared to work on this basis.

We are leaving the page open in case anybody wishes to continue to donate.

We’re still not absolutely sure yet if we need any more – we’ll let everybody know as soon as possible.

In an important judgment in the High Court this morning, Mrs Justice Cheema-Grubb found against the Secretary of State and NHS England who had fiercely resisted our renewed application for a cost capping order. She granted an order that in the event of us losing the JR, our liability for the Secretary of State's and NHS England's costs would be no more than £80,000 each; and she ordered them to pay our costs of the hearing.

She found that this was a case which met the statutory test of public interest, brought by responsible and public-spirited individuals, and that as the costs of the defendants were "very high" they should be capped so that the case could go ahead. She added that as the public was funding both sides, as tax-payers and through CrowdJustice, a capping order was “entirely appropriate”.

She also ordered that in the event of us winning the JR, the defendants' liability to pay our costs would be capped at £115,000.  Before the hearing we had offered a cap of £100,000 for our costs.

This judgment is fantastic news and a great relief. We now know that the money our supporters have donated will be enough to pay the defendants' costs if we were to lose the JR, and that with a bit more fund-raising we have a good chance of being able to cover our own lawyers' 'reduced fee' costs.

We were represented in Court by Peter Mant of 39 Essex Chambers instructed by Kate Harrison of Harrison Grant Solicitors.

We've now heard from the court that the oral hearing of our renewed application for a cost capping order has been listed for Thursday 22nd February (1 hour), and the full hearing of the case has been scheduled for 23rd and 24th May (2 days). The hearings will be at the Royal Courts of Justice in the Strand in London.

The Secretary of State and NHS England have refused our suggestion that each side bear its own costs whatever the outcome of this important case.  We have therefore asked the court to hear our application for cost capping at a short hearing and have revised the application to ask that the amount we would have to pay, should we lose, be capped at £160,000.