Exclusive: NHS England could be forced to involve patients in GP contract negotiations

NHS England could be forced to consult patients on all GP contract changes after admitting to the High Court it had acted unlawfully by not properly involving the public in commissioning.

High Court: NHS England forced to consult patients
High Court: NHS England forced to consult patients

NHS England conceded it had failed to properly involve patients and the public in primary care commissioning decisions in breach of a legal duty.

The judicial review was brought by Danny Currie, a patient with complex medical needs at an east London practice threatened with closure because of MPIG cuts. Mr Currie claimed the decision to withdraw the funding without consulting patients was unlawful.

Speaking to GP, Mr Currie’s lawyer Richard Stein, from the human rights team at Leigh Day, said the ruling meant all decisions on GP contracts must now involve patients and the public, including annual contract negotiations and any future changes to the Carr-Hill funding formula.

Unlawful actions

In an order made without a court hearing, Mr Justice Popplewell said NHS England had ‘acted unlawfully by reason of its failure to make arrangements for the involvement of patients in primary care commissioning decisions as required by the National Health Service Act 2006’.

Section 13Q of the 2006 NHS Act requires NHS England to make arrangements for individuals to whom services are provided to be involved in planning the commission of those services. 

Mr Stein said it was ‘extraordinary’ that the body charged with ensuring NHS organisations comply with the requirements had been failing to make the arrangements itself.

The ruling means some decisions made by NHS England could potentially be void. On the specific policy to withdraw the MPIG, Mr Stein said NHS England should now ensure patient involvement in future changes to the funding formula.

NHS England has acknowledged the global sum Carr-Hill formula is not sufficiently sensitive to deprivation and agreed with GPC in the 2015/16 contract negotiations to re-examine it.

NHS England had ‘accepted that patients have to be involved in decision making that's going to affect their service’, said Mr Stein.

Implications for patients

‘The whole idea of a GP contract amendment is to tweak how the money's applied to make sure the priorities are followed or engaged with by GPs. That clearly has massive implications for patients.

‘We'd say what that means is, they need to find a way of involving patients in, effectively, all of their proposed changes to GP contracts. Which currently are cosily done by the BMA GP committee and NHS Employers.’

He added: ‘I think they need to find a way of doing it. And they'll say it's difficult and can't be done, but the legal framework requires them to do it.’

NHS England said it was ‘taking active steps to bring itself into compliance with this duty’. Mr Justice Popplewell said it was not appropriate for the court to give directions on how it should do so or to lay down a timetable.

If NHS England fails to take action to comply with the duty, further legal action would be ‘very likely’, said Mr Stein.

GPC chairman Dr Chaand Nagpaul said: 'From the outset, we have consistently warned NHS England that the decision to significantly change practice funding would hit a broad range of practices with challenging circumstances and affect patient services, and we called for measures to support and protect affected practices.

'This ruling reinforces that NHS England has a duty not to implement changes that will adversely affect practice services, without communicating and consulting with patients who will be directly affected by these changes.

'NHS England must ensure that it is well placed to comply with any such legal obligations to which they may be subject.'

Two further disputed claims, which related to patient involvement with the financial support package agreed to help MPIG outliers, and the future process to examine changes to the Carr-Hill formula to take more account of deprivation factors, were refused.  

NHS England was ordered to pay half of Mr Currie’s costs.

NHS England said it was preparing a statement on the case.

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