On 25th January, NHS England’s website said they will hold a national consultation on Accountable Care Organisation contracts, but didn’t say when.
The 12 week consultation won’t ask the public if we want this contentious new type of organisation, that’s based on the USA’s Medicaid/Medicare business model, to provide just about all the NHS and social care services in an area. Hunt and NHS England have already made that decision.
It will just be about the Accountable Care Organisation contracts. As Hunt told the Health Select Committee on 23rd Jan, he and NHS England:
“will consider the outcome of the ACO contracts consultation when we implement the ACO policy.”
NHS England’s draft Accountable Care Organisation contract is subject to a Judicial Review brought by 999 Call for the NHS, that will be heard in Leeds Court on April 24th. The ground for the Judicial Review is that the Accountable Care Organisation contract payment mechanism is unlawful.
NHS England’s press release says that no Accountable Care Organisation contract will be awarded until the consultation is finished.
The government’s decision to proceed with Accountable Care Organisations is also subject to a legal challenge from the #JR4NHS group. They are waiting to hear if they have a judge’s permission to bring their judicial review.
NHS England states that the aim of the consultation is to “provide further clarity about Accountable Care Organisations’ role and scope.”
So we, the public, won’t be asked if we think Accountable Care Organisations are a good thing and if we would like them to be set up. That decision has already been made.
Accountable Care Organisations apparently won’t end purchaser/provider split after all
NHS England’s press release contains a surprising statement, that on the face of it reverses everything we’ve previously heard:
“An ACO is not a new type of legal entity and so would not affect the commissioning structure of the NHS. An ACO would simply be the provider organisation which is awarded a single contract by commissioners for all the services which are within scope for the local accountable care model.”
“Therefore any proposal to award an ACO contract would engage local commissioners’ own duties under the NHS Act 2006. Any area seeking to use an ACO contract would need to comply with longstanding public procurement law.”
That is not what has been understood to date. NHS England and local NHS organisations have been banging on for ages that Accountable Care Organisations would end the purchaser/provider split. Now they’re saying an Accountable Care Organisation would simply be “the” provider organisation for all the NHS and social care services available in the area through their “care model”.
A significant legal point seems to be that:
“any proposal to award an ACO contract would engage local commissioners’ own duties under the NHS Act 2006.”
This seems to mean that an Accountable Care Organisation cannot exercise the functions of a Clinical Commissioning Group under the NHS Act 2006. This looks like a significant shift from what we understood NHS England was previously saying – which was that, basically, that was what an ACO would do.
However any change this legal point creates may be more apparent than real, because if an Accountable Care Organisation was awarded a whacking 10-15 year contract to provide £bns worth of NHS and social care services for a specific area, it would then do some kind of alliance contract to multiple subcontractors – and if that’s not commissioning, it comes very close.
There’s nothing about when this consultation is to take place – it could be that NHS England are awaiting the outcome of the Judicial Review of its ACO contract, since it wouldn’t make much sense to consult on a contract that could be ruled unlawful by the courts.
Another tick box exercise
Whenever it happens, there’s little hope that it will be any more than a tick box exercise. Taking note and listening to the consultation outcome – which is what Hunt promised at the Health Select Committee on 23 Jan – doesn’t amount to anything, as the people of Calderdale and Greater Huddersfield know full well from our experience of the Right Care, Right Time, Right Place hospital cuts consultation.
“…we will take note of any conclusions that are made, in terms of regulations that are put before Parliament.”
He also said:
“We are committed as NHS England and the government that we will listen carefully to the outcome of that consultation carefully in the way that we implement the ACO policy.
I think that is a very big step forward for people who are concerned that – and this isn’t the case – that this is a vehicle for privatisation.”
Hunt and NHS England both admit a private company could run an Accountable Care Organisation
Despite that, Hunt also admitted that a private company could lead an Accountable Care Organisation:
“We are not sure that we are able to specify by law which type of company – I think we legally have to be impartial about which type of body bids for NHS contracts.”
The law that he referred to is the Public Contract Regulations 2015. This specifies that health services being put out to contract have to include a call for competition.
NHS England’s press release makes the same point as Hunt:
“Any area seeking to use an ACO contract would need to comply with longstanding public procurement law.”
This is a no doubt deliberately obscure way of saying that private companies would be able to bid for and win an Accountable Care Organisation contract.
Downplaying the significance of Accountable Care Organisations (as if saying, there’s nothing to see here, folks) NHS England’s press release hurries on:
“ACOs are only one tool for integrating primary care, mental health, social care and hospital services and not the only or main way to integrate services. Most areas are seeking to do so through voluntary, non-contractual partnerships where GPs, hospitals, commissioners and local government collaborate to improve services for their population. NHS England will be announcing the next wave of these collaborative partnerships shortly.”