John Major famously introduced “The Patients’ Charter”, which set out a number of rights for NHS patients. It was originally introduced in 1991, under the now Conservative government, and was revised in 1995 and 1997. The charter specifically set out rights in service areas including general practice, hospital treatment, community treatment, ambulance, dental, optical, pharmaceutical and maternity. ” Patient choice has of course been the “buzz word” in the amateurish-marketing of the NHS changes, but they hide a devillish agenda of substantial legal considerations.

The revised regulations (“Regulations”) [2013/500], are here. The Regulations impose obligations on CCG commissioners to act in a transparent and proportionate way and to treat providers equally and in a nondiscriminatory way (see Regulation 3). In doing this the Regulations substantially replicate the duties which are already imposed by EU law on NHS commissioners. The way in which EU law impacts on NHS commissioning was explored in R (Ota Lloyd) v Gloucestershire PCT. In that case, Lock himself describes that:

The legal challenge by local Gloucestershire resident, Michael Lloyd, to the decision of the Gloucestershire PCT to outsource its community services to a Community Interest Company raised serious questions for NHS commissioners. The case was settled on day two, so there will not be a court judgment which explains how the law works in this area. That may (and here I speculate) be a great relief to the Department of Health who may not have welcomed the Judge expressing her views on whether the PCT was acting lawfully or not, and thus constraining future NHS management decisions. However EU procurement law is now a big issue for the NHS and, on a purely personal basis, it seems that the cases raises serious issues for the NHS.

In his advice on the latest Regulations, David Lock QC outlines that,

“A … problem arises where there is more than one potential provider for a range of NHS services but where it is in the interests of integration of local services for a contract to be placed with a local hospital provider. This will happen for example in any urban conurbation where there is more than one major hospital within a reasonable ambulance ride from the CCG area. In such circumstances there is more than one potential provider of A & E services and therefore more than one provider of other acute services. A CCG may feel it has a strategic interest in maintaining services at its local hospital but, in such circumstances, the CCG will be forced to run an expensive competition between acute providers each year before it is able to relect the annual acute services contract. It is difficult to see how such a process can benefit the NHS as a whole.”

This is explained in full in “advice no. 2″ point 15:

“One key question is whether commissioners would be entitled to take a strategic decision to avoid a competition for a contract if they took view that it would be in the interests of patients for a particular service to be integrated together with other health or social care services that were already being provided by an existing NHS provider. This is clearly the thinking which led to the change to Regulation 2 which specifically allows NHS commissioners to take account of the benefits of services being provided in an integrated way (including with other health care services, healthrelated services or social care services). However that objective cannot be achieved in practice if, in making the decision under Regulation 5 whether a commissioner can lawfully avoid having a competition, the only test a commissioner is permitted to apply is whether the contract relating to those services (as opposed to other services) is only capable of being delivered by a single provider. If the answer to that question is that the contract is capable of being delivered by more than one provider, the CCG must hold a competition even if it is not in the interests of patients to do so.”

Meanwhile, current recommendations are for four A&E departments in hospitals in north-west London to be closed.  The departments at Ealing, Central Middlesex, Charing Cross and Hammersmith hospitals would be downgraded to 24/7 urgent care centres and would no longer take “blue light patients”. Five “major hospitals” – Chelsea and Westminster, Hillingdon, Northwick Park, St Mary’s in Paddington and West Middlesex – would have more specialist and experienced doctors available more of the time.

It is this question of societal needs above individual patient needs which keeps on coming back to bite this debate on the arse. In R v Cambridge Health Authority Ex Parte B (A minor) [1995] EWCA Civ 49, Lord Bingham provides that:

“I have no doubt that in a perfect world any treatment which a patient, or a patient’s family,sought would be provided if doctors were willing to give it, no matter how much it cost, particularly when a life was potentially at stake. It would however, in my view, be shutting one’s eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet. They cannot pay their nurses as much as they would like; they cannot provide all the treatments they would like; they cannot purchase all the extremely expensive medical equipment they would like; they cannot carry out all the research they would like; they cannot build all the hospitals and specialist units they would like. Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can  make. In my judgment, it is not something that a health authority such as this Authority can be fairly criticised for not advancing before the court.”

This is potentially a very dangerous situation for clinical commissioning groups (“CCGs). If lawyers and accountants acting on behalf of private healthcare suppliers can find any way in which competition law was not followed in the way the contract was awarded then Monitor can potentially declare the contract void. The CCG will find itself forced into certain decisions through having limited time and financial resources, whereas the private provider may be in a position submit an elegant presentation or pitch.

The reality, and this will become clear in time, is that this is a ‘gravy train’ for procurement lawyers, and it is not clear where the money to defend the CCGs decisions “on behalf of patients” will actually come from. Prof. Colin Leys gives a very good example of how this has concerned concern, only yesterday in the Guardian:

“How it will work was strikingly illustrated in Hackney last month. Some Hackney GPs and their patients were deeply dissatisfied with the out-of-hours GP service provided by Harmoni, a private company that is the subject of well-publicised allegations of staff shortages and other problems, which the company refutes.

The GPs formed a social enterprise to take over the service when Harmoni’s contract expired, and the primary care trust (PCT) wrote to say they were expected to do so from 1 April. But at the last minute the PCT rescinded this decision and extended Harmoni’s contract.

Furious Hackney residents and GPs wanted to know why. The answer was that lawyers for both the PCT and the new CCG had advised that there was a risk that Harmoni’s owners would take legal action if the social enterprise was allowed to take over without a new bidding process. The PCT chair told a meeting of Hackney council’s scrutiny committee he felt it was his duty to avoid the risk of major legal costs.

So, this is the new reality. Where any risk of legal action exists, CCGs’ lawyers will naturally advise them to avoid it. How many CCGs will be willing to disregard this advice? The ultimately decisive factor in what gets commissioned looks likely to be not the wishes of CCGs (let alone patients, or voters), but corporate legal firepower.”