Hutchinson & Anor, R (on the application of) v The Secretary of State for Health and Social Care & Anor (Rev 1)

A clinical commissioning group may lawfully commission an integrated health-care model involving a single provider, a long-term contract, extensive services and substantial provider discretion. The statutory duty to arrange services is broad and does not prevent a provider from arranging sub-contracting, provided the commissioning group retains responsibility for its non-delegable statutory functions.

The common-law duty of clarity and transparency applies to important health policies, not only policies affecting fundamental or constitutional rights. It is context-sensitive and is not engaged until the policy or decision is sufficiently mature. A vires challenge may nevertheless be determined before consultation where the legal issue is crystallised and resolution has practical utility.

The claimants, health professionals with professional and personal interests in the NHS, challenged the proposed accountable care organisation model developed by the Secretary of State and NHS England. They argued that the model, particularly in its widest form, would unlawfully transfer commissioning functions from clinical commissioning groups to potentially private providers and lacked clarity and transparency.

Consultation-related grounds were overtaken by later events, including the defendants’ decision to defer consultation pending related litigation. The remaining issues concerned the content and legality of the ACO policy, clarity and transparency, prematurity, delay and standing.

1. Policy and vires. The ACO policy was properly assessed by reference to the draft model contract together with the defendants’ stated intention to promote its extensive use. The widest version contemplated a single provider covering most or all relevant services for a locality under a long-term contract, with substantial responsibility for resource and care decisions.
2. The model was intra vires. The statutory duty of a clinical commissioning group to arrange provision is broad. It is discharged through procurement and contracting and does not prevent a commissioned provider from arranging sub-contracting. The legislation does not restrict a group from appointing one provider for a locality or for the full suite of services.
3. The group’s statutory functions remain non-delegable. However, the model does not itself delegate them or make their performance impossible. The group remains responsible for assessing need, determining the services required, monitoring performance, involving patients and exercising its continuing statutory duties. Contractual supervision, variation, enforcement and information mechanisms could support that responsibility.
4. The continuing duty under section 3 of the National Health Service Act 2006 requires the group to form its own view of reasonable requirements before commissioning and to keep that assessment under review. An ACO may conduct assessments and provide information, but the group must reach the necessary independent judgments.
5. Clarity and transparency. The common-law principle applies to important health policy and is not confined to fundamental or constitutional rights. Its content depends on context, purpose and audience. A consultation must contain sufficient clarity to enable an intelligent response. However, policy-makers require latitude while proposals remain in formulation. On the facts, the defendants had returned to a pre-consultation stage, so the principle was not presently engaged.
6. Procedure. The vires issue was not premature because it was crystallised and determining it prevented a consultation proceeding on a potentially false legal premise. The claim was not barred by delay, and the claimants had sufficient interest given their professional and personal connections with the NHS and the national importance of the issues.
7. The judicial review claim was dismissed.

This was a first-instance judicial review in the Administrative Court. The claim was dismissed.