judicial review
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.
Town council goes to solicitors over hospital beds
As expected, Seaton Town Council unanimously decided last night to seek legal advice over the CCG’s decision to remove Seaton Hospital’s beds. Over 30 residents turned out to support the move and ask questions of the councillors.
Otter Nurseries pledges £10,000 for Judicial Review of CCG decision to close Honiton beds
In an extraordinarily generous gesture, Otter Nurseries have told Save Hospital Services – Honiton that they will give £10,000 towards the costs of a Judicial Review of the NEW Devon Clinical Commissioning Group’s decision to close the in-patient beds in Honiton Hospital. What an example for local campaigners in Seaton! If a lot of local businesses and individuals give a fraction of this amount, we can raise the funds to overturn the Seaton closures, too.
Honiton applies for Judicial Review
This statement has been issued by the Save Our Hospital Services-Honiton group:
SOHS – Honiton Steering Group that we will be applying for a judicial review of the CCG decision regarding the beds in Honiton Hospital because it was based on a flawed consultation process. There may also be human rights issues. The steering group have created a crowdfunding page on Just Giving in order to raise £75,000 for the first tranche of funding as lawyers and barristers are very expensive. The steering group believe it’s really important to go for a judicial review as we may well be able to demonstrate that the decision was unlawful. If we can get people to give £10 each we can very soon raise the first round of funding. When you think about it £10 is four coffees or two glasses of wine so we are not asking people to make a massive sacrifice to support the judicial review.” For those who wish to donate the URL is www.justgiving.com/crowdfunding/honitonhospitalbeds
The reason why we put “we are going for a judicial review” is because it is not just the steering group ..it is the town, the mayor, the league of friends, senior voice. They have all been consulted and are in favour of a judicial review.
Hospital: Judicial Review may be answer to deeply flawed decision
The decision by the NEW Devon Clinical Commissioning Group (CCG) to close in-patient beds in Seaton Hospital is ever more deeply flawed the more closely you look at it. The ultimate answer may be for Seaton Town Council, Seaton Hospital League of Friends and the Seaton GP practices to launch proceedings for Judicial Review of the decision.
As a first step, Devon County Council’s Health and Wellbeing Scrutiny Committee should refer the decision back this Tuesday on the grounds that the reasons advanced do not stand up to examination. (I emphasise that the purpose here is not to force the removal of Sidmouth’s beds which are needed too, but to save Seaton from a completely unfair decision.)
At the same time, Chairman Dr Tim Burke and his colleagues from the CCG must come and explain the CCG’s decision to a public meeting in Seaton. We need to make them account to the people whom this decision will affect.
A flawed case
The CCG has published its ‘business case‘ for the decision (not ‘service case’ – the terminology is very revealing). One of the few comments quoted (from hundreds received) is this on p. 22: ‘Sidmouth is a better location for community beds than Seaton because it a) is a public transport hub for the surrounding towns and villages and so more accessible for carers/families, b) has a larger population and c) has a larger proportion of frail and elderly than Seaton.‘
This is very misleading as I show below, but its logic then enters the CCG’s own reasoning on p. 35, section 6.3, ‘Duty to reduce inequalities’ which contains the key arguments for their preference for Sidmouth. I quote what they say with my comments in italics:
- ‘Sidmouth is a better location for community beds than Seaton because it a) is a public transport hub for the surrounding towns and villages and so more accessible for carers/families.’ Seaton is also a public transport hub for surrounding areas and is much more accessible for the eastern part of East Devon, especially the Axe Valley, than Sidmouth. People travelling to Sidmouth from Axminster by public transport face a 2-hour bus journey, with a change, and the last return bus is at 4 pm. Therefore the CCG ignored important relevant data.
- ‘In the light of the process not strongly confirming a single option, the CCG following review decided to consider additional evidence in relation to the CCG duty to reduce inequalities.’ – The premise is simply false. Of those expressing a preference for one of the CCG’s 4 options, the majority opted for Option A including Seaton, which received twice the support of Option B including Sidmouth. The CCG has simply ignored the results of the consultation and on these grounds alone the decision should be reviewed. The majority of those who did not support one of the CCG’s 4 options supported retaining all the hospital beds; therefore a majority of all respondents supported retaining those in Seaton. The CCG has ignored this outcome of the consultation.
- ‘The purpose was to identify any further, more detailed differentiating factors between the two closely scored preferential options and also to test the same evidence against the other two of the top four options. This included taking into account the views of hard to reach groups in the consultation; and interrogating the JSNA data to identify indicators linked to deprivation and inequalities in relation to Sidmouth and Seaton.
- ‘Hard to reach focus groups noted that it was important to achieve a good geographical spread of inpatient units across the area.’ – However the CCG has ignored this by concentrating all inpatient beds in the western part of East Devon (Exmouth and Sidmouth) and none in the eastern part (Seaton: Axminster’s beds having already been removed). By excluding Seaton, the CCG is failing in its duty to provide good spread of inpatient units across the area. This is a clear reason for review.
- ‘The JSNA has been reviewed based on inequalities and taking into account critical mass and population need with Sidmouth being more populous than Seaton.’ – It is true that Sidmouth, taken on its own, is somewhat larger, but the assertion is misleading because the Axe Valley including Axminster as well as Seaton has a larger population than Sidmouth. The failure to acknowledge this larger catchment area of Seaton Hospital in these comparisons is another failure which requires review of this decision.
- ‘Whilst Seaton and Sidmouth are more comparable in deprivation terms, there is an older population profile and larger population in Sidmouth.’ – There are pockets of socio-economic deprivation in both towns but neither figures in Devon County Council’s overall survey of deprivation. However the more detailed Joint Strategic Needs Assessments to which the CCG refers show that on some key issues (e.g. life expectancy and educational attainment) Seaton is significantly worse off than Sidmouth. The data show that Sidmouth is more affluent and less deprived than Seaton, as anyone who knows the two towns could have told the CCG. The CCG’s failure to recognise this is another reason for requesting review.
- The statement that Sidmouth has an older population profile is simply false. DCC data from 2016 shows in both towns 7% of the population is over 85, while in Seaton 33% and in Sidmouth 32% are between 65 and 85. Therefore Seaton’s and Sidmouth’s profiles are so nearly identical that this should not have been given as a reason for preferring Sidmouth, and the fact that it has been is another clear reason to justify review of the decision. (The towns have the oldest and second oldest profiles, respectively, in the whole of Devon, and therefore both should keep their beds). DCC do say that Sidmouth Town ward is the ‘oldest ward’ in Devon, but this ward is only one-third of the Sidmouth area.
Seaton & Colyton MATTERS 