Accountable Care Organisations
Campaign against Accountable Care Organisation contracts allowed to appeal against High Court decision, while NHS England begins consultation on contract which may not be lawful!
The Court of Appeal has issued an order granting campaign group 999 Call for the NHS permission to appeal the ruling against their Judicial Review of the proposed payment mechanism in NHS England’s Accountable Care Organisation contract. I am supporting 999 Call’s legal case. At the same time, NHS England has launched its public consultation on the contracts, which you can respond to here.
‘999 Call for the NHS’ says:
The Accountable Care Organisation Contract (now rebranded by NHS England as the Integrated Care Provider contract) proposes that healthcare providers are not paid per treatment, but by a ‘Whole Population Annual Payment’, which is a set amount for the provision of named services during a defined period. This, 999 Call for the NHS argues, unlawfully shifts the risk of there being an underestimate of patient numbers from the commissioner to the provider, and endangers service standards.
In April, the High Court ruled against the campaign group’s legal challenge to NHS England’s Accountable Care Organisation contract – but the group and their solicitors at Leigh Day and barristers at Landmark Chambers found the ruling so flawed that they immediately applied for permission to appeal.
Although fully aware of this, on Friday 3rd August – the day Parliament and the Courts went on holiday – NHS England started a public consultation on the Accountable Care Organisation contract – now renamed the Integrated Provider Organisation contract.
The consultation document asserts that the payment mechanism in the ACO/ICP contract is lawful, because:
“The High Court has now decided the two judicial reviews in NHS England’s favour.”
Steve Carne, speaking for 999 Call for the NHS, said
“It beggars belief that NHS England is consulting on a contract that may not even be lawful.
And a lot of public funds is being spent on developing the ACO model – including on the public consultation.
We are very pleased that 3 judges from the Court of Appeal will have time to consider the issues properly.
We shall shortly issue our stage 5 Crowd Justice appeal for £18k to cover the costs of the Appeal.
We are so grateful to all the campaigners and members of the public who have made it possible for us to challenge the lawfulness of NHS England’s attempt to shoehorn the NHS into an imitation of the USA’s Medicare/Medicaid system.
We will not see our NHS reduced to limited state-funded health care for people who can’t afford private health insurance.”
Jo Land, one of the original Darlo Mums when 999 Call for the NHS led the People’s March for the NHS from Jarrow to London, added,
“All along we have been warning about the shrinkage of the NHS into a service that betrays the core principle of #NHS4All – a health service that provides the full range of appropriate health care to everyone with a clinical need for it, free at the point of use.
Since we first started work two years ago on bringing this judicial review, there have been more and more examples of restrictions and denials of NHS care, and the consequent growth of a two tier system – private for those who can afford it, and an increasingly limited NHS for the rest of us.”
Jenny Shepherd said
“NHS England’s rebranded Accountable Care Organisation contract consultation is a specious attempt to meet the requirement to consult on a significant change to NHS and social care services.
We don’t support the marketisation of the NHS that created the purchaser/provider split and requires contracts for the purchase and provision of services.
Integration of NHS and social care services, in order to provide a more straightforward process for patients with multiple ailments, is not aided by a system that essentially continues NHS fragmentation.
This new proposed contract is a complex lead provider contract that creates confusion over the respective roles of commissioner and provider. It requires multiple subcontracts that are likely to need constant wasteful renegotiation and change over the duration of the lead provider contract. This is just another form of fragmentation, waste and dysfunctionality.
The way to integrate the NHS and social care is through legislation to abolish the purchaser/provider split and contracting; put social care on the same footing as the NHS as a fully publicly funded and provided service that is free at the point of use; and remove the market and non-NHS bodies from the NHS.
Such legislation already exists in the shape of the NHS Reinstatement Bill.”
The campaign team say they are determined in renewing the fight to stop and reverse Accountable Care. Whether rebranded as Integrated Care or not, they see evidence that it is the same attempt to shoehorn the NHS into a limited role in a two tier healthcare system that feeds the interests of profiteering private companies.
Steven Carne emphasised,
“It is vital that we defend the core NHS principle of providing the full range of appropriate treatments to everyone with a clinical need for them.”
999 Call for the NHS hope the 2 day appeal in London will happen before the end of the year. The Appeal will consider all seven grounds laid out in the campaign group’s application – with capped costs.
Details on the first instance judgment can be found here, and the judgment itself here.
David Lock QC and Leon Glenister represent 999 Call for the NHS, instructed by Rowan Smith and Anna Dews at Leigh Day.
My message of support to the legal team who are fighting the dismantling of the NHS in a crucial case in Leeds Crown Court tomorrow #Justice4NHS
Our pressure has led to Devon NHS joining a national retreat from privatising Accountable Care Organisations. However the Devon Integrated Care System will still cap care, with weak democratic control – we need time to rethink
Regular readers will be aware that Devon has been following NHS England’s plan to get Sustainability and Transformation Plans or Partnerships (STPs: Devon’s is the successor to the ‘Success Regime’ which cut our community hospital beds) to ‘evolve’ into Accountable Care Systems (ACSs) which in turn will prepare to establish Accountable Care Organisations (ACOs).
Under ACOs, single organisations could be contracted to provide all services in an area for 10 years or more, and these organisations could – Jeremy Hunt has confirmed this to Sarah Wollaston – just as well be private companies as NHS bodies. So all of Devon’s NHS could have ended up being run by Virgin Care – or a US care conglomerate under Theresa May’s desired trade agreement with Donald Trump.
As recently as December 2017, Dr Tim Burke, Chair of Northern, Eastern and Western (NEW) Devon Clinical Commissioning Group (CCG), endorsed a ‘route map‘ for Devon’s ACS which said that in the ACS, ‘The Accountable Care Delivery System will hold the capitated budget for the population covered’, and that the aim is ‘through bringing budgets together on a whole population and/or model of care basis, [to] provide signals to providers on how to organise. This will signal the number, shape and scope of accountable care organisations and how they will need to work together to deliver.’
Devon backs off ACOs
Devon’s CCGs still want to set up an ACS – now rebranded an Integrated Care System (ICS). However in February they said: ‘A few areas in England are on their way to establishing an Accountable Care Organisation (ACO), where a single organisation is responsible for planning and delivering services to the whole population. This is not being considered in Devon.’
They are not the only ones to back off ACOs – indeed this week Kernow CCG went further and rejected the option of setting up an ICS under the overall control of the Cornwall Council CEO. Instead they voted for S75 partnership agreements for integration of NHS and social care, which have the advantage of being lawful as they’re mandated by the NHS 2006 Act. (Devon County Council already has a partnership agreement with the CCGs.)
Last Wednesday, the CCGs told Devon’s Health and Wellbeing Board that a ‘shadow’ ICS which will operate from 1st April, which they hope to be part of the next wave of formal ICSs to be recognised by NHS England. Within this, they aim to set up one Devon-wide ‘care partnership’ for mental health and four ‘local care partnerships‘ for Northern, Eastern, Southern and Western Devon. These will have boards with local government representatives (district and county councillors) as well as representatives of acute, primary care and mental health providers, and will engage with wider stakeholders such as the voluntary sector.
A victory for legal action and local pressure
It appears the retreat is genuine – and national. A Northumberland County Council Cabinet paper says ‘it now seems clear that no ACOs will be created nationally in the near future, as a result in a shift of national policy.’ It also says, ‘The original plans for the ACO are not now proceeding. Discussions are ongoing with NHS England, NHS Improvement and local system leaders about how organisational relationships might now develop to support the integration of services, however the timetable for and nature of any new arrangements remains unclear.’
I am authoritatively informed that this shift results from the impossibility of new legislation to allow ACOs to be created (a result of the hung parliament!). This is very interesting: it implies that while currently NHS England is still defending the crowdfunded judicial review of its draft ACO contract, it is already recognising that ACOs cannot be introduced in England under present legislation. It seems likely that full ACOs may only happen if the Tories regain a parliamentary majority. We shall have to see how precisely the legal challenge develops, but the retreat is already a significant victory for the legal action – and for the local pressure which I, other councillors and Save Our Hospital Services campaigners have mounted in Devon.
Lack of democracy in the development of the ICS
This leaves us with the proposed Devon ICS – and the undemocratic process of its introduction. A proposal is finally being put to DCC’s Cabinet this Wednesday, but since the Council itself will not meet until after 1st April, the CCGs will introduce the ICS without the approval of DCC, whose logo they have been using to advertise the idea since September. The Health and Adult Care Scrutiny Committee, which is supposed to examine important developments in the local NHS, is only discussing it on 22nd March, nine days before the ICS starts, its chair having disregarded the agreement that a special meeting should be held if the ICS was going ahead on 1st April!
This is the result of the lamentable failure of the Council’s Conservative leadership to bring the proposals to Council over the last 6 months. Would they even have been discussing it now, if I – a backbench councillor from the smallest opposition group – had not put it on the agenda of Health Scrutiny on 25th January? Or would they just have joined it without direct authority, as they did with the STP – after the Council rejected the Success Regime in December 2016, DCC officers (presumably with informal Cabinet authorisation) simply participated in the STP following the general duty of the Council to cooperate with the CCGs as statutory NHS organisations?
Problems with the proposed ICS
- The ICS will be based on capitated funding, which means that Devon NHS patients will be entitled only to the services which the CCGs decide they can have within their financial envelope. This is embedding the existing postcode lottery in the NHS, and another major step away from a universal national service.
- In the current situation, capitated funding is capitated underfunding, and threatens to further embed current dire shortfalls in service – as I pointed out at the last Health Scrutiny, all Devon’s four acute trusts were further away from meeting official targets for A&E, cancer care and routine operations in January 2018 than 12 months previously. Better-off patients will continue to be pushed towards private practice leaving the rest with a second-class NHS.
- The CCGs intend to apply capitation to each of Devon’s four areas, calling it ‘fair funding’ which is really equality of misery. Since Eastern Devon is ‘overfunded’ compared to Western Devon, watch out for a sharper deterioration in the east.
- Since the CCGs intend to apply for formal recognition as an ICS, which will bring them greater local financial flexibility, we need to know how they will use this.
- Commissioning power for all Devon’s NHS will be concentrated in the hands of a single Strategic Commissioner, who will be responsible only to the combined boards of the two CCGs. The CCGs say they don’t want to set up an ‘undemocratic organisation’ – but they are undemocratic organisations, with power concentrated in the hands of a few professional managers and selected doctors, and a single commissioner will concentrate undemocratic power further.
- There is no clarity on how NHS and DCC funding will be combined. There is a danger that adult social care, which is currently run by DCC, will increasingly be taken over by the CCGs, diminishing democratic control.
- Local care partnerships have been a fundamental part of the new system since it was first agreed by the CCGs in September, but despite this no paper has yet been published to elaborate this element, so we are being asked to approve a vague idea.
What needs to happen now
- DCC’s Cabinet cannot approve these proposals at this stage.
- Full proposals – including proper details of the Local Care Partnerships – should go to Health Scrutiny first, and then back to Cabinet at its next meeting, and finally to Council later in the summer.
- We need an explanation of how Devon patients can regain national standards of care while introducing this system.
- Proposals for strengthening democratic control, including the role of DCC and other councils, in the ICS should be brought forward first.
- Meanwhile, DCC officers can cooperate under their existing S75 partnership with the NHS.
- Nothing will be lost by a delay in bringing these proposals to Council, but that will not only enable proper scrutiny by Council, but will also allow the public to join the discussion.
- After Scrutiny and Cabinet have further considered the proposals, DCC and the CCGs should produce a document explaining these developments to the public and invite public debate on them.
County Council Cabinet member says of NHS changes, ‘What we’re not going for in Devon is an Accountable Care Organisation’ – but can we take this assurance at face value?
At Devon County Council yesterday, I asked Cllr Andrew Leadbetter, Cabinet Member for Adult Care and Health, whether the Devon Accountable Care System (ACS) (which is being renamed the Integrated Care System!) is still due to start on April 1st. He replied that ‘What we’re not going for in Devon is an Accountable Care Organisation’ – only an Accountable Care System.
He said that the 1st April date was the one ‘on which the two CCGs [NEW Devon and South Devon & Torbay] are going to merge’ and that the ACS already existed in all but name. ‘It’s their plans, they don’t actually need our permission to go ahead with it’, he added – although DCC is ‘in partnership with them’. He didn’t answer Cllr Brian Greenslade’s point that DCC had glossed over it in a recent spotlight review.
You can WATCH THE EXCHANGES BY CLICKING HERE AND FORWARDING TO 2:57.
However I think there’s a confusion in Cllr Leadbetter’s response and in the joint statement with the CCGs which he issued as a written report at the meeting and previously emailed to councillors:
- No one has said that the Devon CCGs, through the Sustainability and Transformation Plan (STP), are currently introducing an Accountable Organisation (ACO), the new form of long-term NHS provider contract which has been developed by NHS England, could hand over large chunks of the NHS to private including American companies – and will shortly be judicially reviewed.
- However according to the CCGs, Phase 1 of the Accountable Care System in 2018-19 will develop an ‘integrated delivery system for Devon’ with a ‘single strategic commissioner’.
- And according to the report Designing the commissioning system in an accountable care environment: A route map for Sustainability and Transformation Partnerships which describes how the Devon STP has been working – and which Dr Tim Burke, Chair of NEW Devon CCG says is the ‘route map’ for the accountable care system – this integrated system is designed to lay the basis for Accountable Care Organisations.
- On page 18, the report says that the integrated delivery system, ‘Through bringing budgets together on a whole population and/or model of care basis, [will] provide signals to providers on how to organise. This will signal the number, shape and scope of accountable care organisations and how they will need to work together to deliver.’
SO – Cllr Leadbetter is right, the emerging ACS is not an ACO. But the ACS is designed to lead to the setting up of ACOs.
Unless, of course, they have changed their mind. Is the route map still the route map – or not? This is the question that the CCGs and Cllr Leadbetter need to answer, before his ‘assurances’ can be considered meaningful. As he mentioned yesterday, I and other councillors will be meeting with him and the CCGs to discuss these issues further.
(Other noteworthy point:
NOTE FOR BAFFLED READERS: I know this is an incredibly complicated subject, not helped by their tendency to change the name of what we’re talking about as soon as objections are raised – as though that makes it better! If you’re confused – you’re not alone. However it MATTERS A LOT to the future of the NHS. Read this report explaining the issues, which I submitted to the Health Scrutiny Committee last month.
After Sarah Wollaston calls for delay in introducing Accountable Care Organisations, I have submitted evidence about Devon’s Accountable Care System to the parliamentary enquiry
Sarah Wollaston, the chair of the Commons Health Committee, has written to the Health and Social Care Secretary urging him to delay a new contract for Accountable Care Organisations (ACOs), due to be implemented nationally later this year. She claims there is a “great deal of concern” over the plans which she considers “have not been well aired publicly up until now”.
This is precisely the point which I have made about Devon’s Accountable Care System -intended I believe as a precursor to Accountable Care Organisations – which is due to begin on 1st April. Neither Devon’s Health Scrutiny Committee nor the public has been made aware of this, and what it involves is still unclear.
I have submitted the paper – with 8 key questions – which I prepared for Health Scrutiny on Thursday to the parliamentary Health Committee’s Sustainability and Transformation Partnerships inquiry. Thanks to Mike Allen for drawing my attention to this just before last night’s deadline for submitting evidence.
Scandal of fundamental changes to Devon’s NHS, which open door to large-scale privatisation, pushed through without public discussion – I have put them on the agenda of next week’s Health Scrutiny Committee
Devon’s two Clinical Commissioning Groups (CCGs) are pushing ahead with far-reaching, highly controversial changes to the NHS in the County from 1st April – without alerting the public or even the public watchdog, the Health and Adult Care Scrutiny Committee at Devon County Council.
The changes will turn the Sustainability and Transformation Plan – which itself grew out of the misnamed ‘Success Regime’ which closed our community hospital beds – into a more permanent Devon Accountable Care System. The first phase, in the first part of the financial year 2017-18, will develop integrated delivery systems, with a single ‘strategic commissioner’ for the whole county.
However the real concern is the next phase, which will lead to the establishment of Accountable Care Organisations. These will lead to services being permanently financially constrained, limiting NHS patients’ options for non-acute conditions, and pushing better-off patients even more towards private practice.
Large chunks of our NHS will be contracted out for long periods, probably to private providers. The ‘toolkit’ for this fundamental change talks about ensuring ‘that there are alternative providers available in the event of provider failure’. In the aftermath of Carillion, do we really want most of our NHS contracted out to private firms?
Devon’s public are not being consulted about this change – unlike in Cornwall where the Council has launched a public consultation – and there is no reason to believe that they want a privatised, two-tier health system.
Devon’s CCGs have pushed the change through without publicity, and it is only because I have put it on the agenda that Health Scrutiny will have a chance to discuss in advance of April 1st. I have written a 7-page paper for the Committee outlining what we know about the ACS and posing eight questions which they should ask about it.
Why we should be worried about Accountable Care Organisations – coming to Devon’s NHS in the next year
Dr Graham Winyard explains. He is a former medical director of the NHS and deputy chief medical officer, and one of the people behind the crowdfunded legal action against ACOs.