Urgent Legal Action for Our NHS - Round 3

by #JR4NHS

Urgent Legal Action for Our NHS - Round 3

by #JR4NHS
#JR4NHS
Fund our fight to get proper consultation, parliamentary scrutiny and respect for the law. Save our NHS from an American-style take-over.
Funded
on 27th February 2018
£104,765
pledged by 3348 people
#JR4NHS
Fund our fight to get proper consultation, parliamentary scrutiny and respect for the law. Save our NHS from an American-style take-over.

Latest: June 14, 2018

MORE SUPPORT FOR OUR CAUSE

Report from the House of Commons Health Select Committee, June 2018

Some of our biggest concerns about ACOs received very welcome endorsement from Parliament’s Health Select Committee in their...

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We’re winning our fight against Jeremy Hunt’s and NHS England’s plans to allow private companies to take control of our health and care services. 


Last week, a national public consultation on implementing the ACO policy was conceded, and a judge ruled that arguments on the lawfulness of the ACO policy itself should be heard (see Round 2 updates). But we’ve got a serious problem.


What’s the basic problem?

We’ve raised £180,000 altogether. Amazing. We were confident that this would be enough. We were wrong.

The government and NHS England are resisting every inch of the way and have already run up over £90,000 that they have claimed from us.

On the basis of their estimated costs we have been advised that we face a potential liability of £350,000-£450,000 if we lose. Plus maybe VAT. If we can’t limit our potential liability, then the case is over. We would have to withdraw. 

But we don’t want to withdraw. We want the case to continue. Can you help us show the government, NHS England and the court that thousands of others do too?

We explain more in detail below.  

What’s the problem in detail? 

The Secretary of State and NHS England are claiming nearly £100,000 for their costs so far. And NHS England say their costs after a hearing could be around £250,000. While we don’t think this is realistic, we must estimate that on this basis our liability for costs could be in the region of £350,000-£450,000 – and it’s not clear whether they’d claim VAT on top. Our own lawyers’ costs are on top of this.

We have good arguments as to why we should not have to pay anywhere near this amount, even if we don’t win in the end, but the risk of not persuading a judge when the amount is so high is too great. 

When we asked the court for permission to bring the case we also asked for a cost capping order, and we told the court that we would withdraw from the case without one. Mr Justice Walker gave permission for a full hearing, but he decided not to cap costs on the grounds that there was good reason to believe we would raise the money from crowd funding.

We may appeal against this decision – which itself means more costs - but in the meantime our solicitors have now written to the lawyers for the Secretary of State and NHS England, pointing out the importance of this case and  suggesting we agree that each side bear their own costs, whatever the outcome.  This would act as a disincentive to running up unnecessary costs and mean the case could be heard.  We hope they will agree, but if not we will ask the court again for a cost capping order. It would help our case and show our determination to continue if we ask the public now if they are willing to keep this case going and so we are launching a third round of fundraising.    

Why a target of £100,000?  

We can’t possibly know at this point how much more we need – so the target isn’t really a target, it’s just an amount that seems to us reasonable in all the circumstances. 

What if in the end we don’t need the extra money?

Any money we raise but don’t need will go to other judicial reviews fighting to keep the NHS as a universal, comprehensive, publicly funded, publicly provided and publicly accountable service free at the point of need. The fight for these principles is far from over. 

If there are no such cases - which we think is highly unlikely - any money left over will go to the Access to Justice Foundation which aims to work strategically and to help in the overall effort to provide practical ‘access to justice’ to those unable to afford help; it describes itself as “the result of collaboration between the Bar Council, the Chartered Institute of Legal Executives, the Law Society and the voluntary sector (represented by the Advice Services Alliance), supported by the Judiciary, the Ministry of Justice and the Attorney General's Office”.

Who are we?

Professor Stephen Hawking CH CBE FRS - the world-renowned cosmologist and a long-time proponent of the NHS.

Dr Colin Hutchinson - former Consultant Eye Surgeon in Halifax and Huddersfield and current Chair of Doctors for the NHS.

Professor Allyson Pollock - public health doctor, Professor of Public Health at Newcastle University, founding member of Keep Our NHS Public, former chair of the NHS Consultants’ Association, and co-author of the NHS Reinstatement Bill.

Professor Sue Richards - former senior civil servant in the Cabinet Office, a Director of the National School of Government and Professor of Public Management at Birmingham University, and co-chair of Keep Our NHS Public.

Dr Graham Winyard CBE - former Deputy Chief Medical Officer, Vice President of the Faculty of Public Health, and Medical Director of the NHS in England where he led the development of the National Institute for Clinical Excellence (NICE).

The claimants are advised by Jenni Richards QC and Peter Mant of 39 Essex Chambers, instructed by Kate Harrison of Harrison Grant Solicitors.

We have also appreciated the assistance of Peter Roderick, co-author of the NHS Reinstatement Bill, and Dr Ben White, Campaign Manager.

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Update 9

#JR4NHS

June 14, 2018

MORE SUPPORT FOR OUR CAUSE

Report from the House of Commons Health Select Committee, June 2018

Some of our biggest concerns about ACOs received very welcome endorsement from Parliament’s Health Select Committee in their report Integrated care: organisations, partnerships and systems published this week. The report acknowledges the risks of trying to ‘work around’ the current laws, which were “intended for a different purpose: to facilitate choice and competition within the NHS,” and concludes “The law will need to change.” (Recommendation 38) That has been one of the key arguments in our Judicial Review.

While the report is sceptical of our argument that integrated care is opening the way to increasing involvement of private corporations in the NHS, we are delighted that Recommendation 17 supports another of our assertions: “We recommend that ACOs, if a decision is made to implement them more widely, should be established in primary legislation, as NHS bodies” and goes on to suggest how that might be achieved.

Recommendation 23 states “There has not been a clear and compelling explanation of the direction of travel and the benefits of integration to patients and the public.” This echoes the other Ground for our legal challenge, which is that the Secretary of State for Health and NHS England have breached their common law duties to publicly make clear their proposals to reorganise the NHS in England using ACOs.

The Report is strongly critical of the whole way in which Sustainability and Transformation Plans, and the different organisational structures that they have spawned (STPs, ACSs, ACOs, ICSs and ICOs), have been introduced in a top-down way, with excessive secrecy, with documents full of unintelligible jargon, and with very little input from the public, the broader health professionals and local government, and to an unrealistic and damaging timescale.

The recognition that organisational changes of this nature “are no substitute for effective solutions to funding and workforce pressures” is crucial to addressing the critical condition of the NHS.

We feel that this report vindicates the stance taken by JR4NHS, including the late and much-missed Prof Stephen Hawking, and by a host of other campaigners.  

Our two day hearing took place on 23 and 24 May and we await the court’s judgement.  Whatever the judge’s verdict, we have achieved a lot.  The Government has been forced to concede proper public consultation on ACOs, and Parliament seems finally aware of their dangers and shortcomings. Thank you all for your continued support.

Update 8

#JR4NHS

May 24, 2018

The hearing is over - now we wait

A quick update to say that the hearing of the judicial review finished this afternoon.

After hearing our argument that the ACO policy is unlawful - and NHS England's and the Secretary of State's arguments that there's no policy outside the proposed contract which is just another contract, that there's no duty of transparency in these circumstances, and that the judicial review challenge is both too early and too late - Mr Justice Green reserved judgment.

Jenni Richards QC for the claimants made clear that the case raises fundamental questions about the future of the NHS, rather than being about the technical issues emphasised by the defendants, and the judge said he wouldn't be rushing to put out a judgment, so it’ll be a while yet before we know his decision.

Thanks to the claimants’ lawyers – Jenni, Peter Mant and solicitor Kate Harrison – for a fantastic job preparing and advocating the case, to the dozens who turned up at the Royal Courts of Justice yesterday and today to show their support, and many thanks again to everybody whose donations made this legal challenge possible.

Update 7

#JR4NHS

May 16, 2018

One week to go

We are now one week away from the hearing of the judicial review – it will start on the morning Wednesday 23rd May 2018 at the Royal Courts of Justice in the Strand in London and is scheduled for 2 days.

The five claimants are now four, following the death of Professor Stephen Hawking in March, but they remain inspired by how he continued to fight for the NHS right up to the end of his life. Here is what he helped to achieve:

When the case started in December 2017, NHS England was planning to introduce the first Accountable Care Organisations (ACOs) by April 2018.  The Government was planning to rubber stamp swathes of regulations so that ACOs could operate.

Following massive public support, NHS England promised a full national consultation on the plans.  And the Government said it will not make the regulations until after the consultation.  That satisfied 2 of our 4 grounds for judicial review – our first victories.

But, at worst, ACOs and the regulations have only been delayed by one year. The policy to introduce ACOs is still very much in place. We need to win this court case to land a serious blow to plans to privatise the NHS.

Thank you again everyone for all the support you have given to make this judicial review possible. The claimants will be outside the court from 9 a.m. on 23rd May, and people are welcome to join them, and to attend the hearing. More background information is set out below.

_______

Background

At the heart of our concerns is that, as envisaged in the policy, ACOs would need to take on most of the functions of Clinical Commissioning Groups (CCGs).  It would be ACOs, not the CCGs, that would be responsible for making most of the decisions about providing health and care services. 

But ACOs could be wholly or partly private organisations.  Unless the changes are blocked we could end up with for- profit health organisations making behind the scenes decisions on long term NHS provision. We are arguing that the law which says clinical commissioning groups must make those decisions is being subverted and that in planning and supporting ACOs, the Secretary of State for Health and Social Care and NHS England have fallen below public law standards of openness and transparency.

Public support has demonstrated how important it is it to maintain the NHS, to be involved in its decision making and not to allow control and decision making to be handed over from bodies which the people, through parliament, entrusted with the future of the NHS.

Win or lose, support for the JR has demonstrated that the public is not willing to hand over their NHS to unaccountable, unelected organisations nor to the private sector and the campaign will go on.

In the meantime, cuts and closure of services are occurring across the country, NHS buildings and land are being sold at knock-down prices and non-clinical staff are being transferred from NHS employment into newly-formed companies.  Those plans continue whatever the outcome of this judicial review, so it is important to support local and national campaigns resisting this asset-stripping.



Update 6

#JR4NHS

March 23, 2018

Defences in - and no more money needed

The Secretary of State's and NHS England's lawyers have now filed their full defences and witness statements, still resisting as strongly as ever, and we are now considering these with our lawyers.

We have also now heard from our lawyers, and are pleased to say that no more money is needed for the judicial review that is due to be heard on 23rd-24th May 2018. This is because they have agreed with the claimants to continue acting on a reduced/conditional fee basis.

The site remains open until on Friday 30 March at 8 p.m., but we are no longer actively encouraging people to visit it. We will continue to post updates on the progress of the case.

Thank you once again to everybody who has donated - over 9,400 donations amounting to more than £280,000 across 3 rounds - a phenomenal response, which has made this case possible.

Update 5

#JR4NHS

March 14, 2018

A sad day

The responses to the sad news this morning of Professor Stephen Hawking's death have reflected his stature and reknown as a scientist. Our thoughts are with his family, friends, carers and close colleagues. We have been inspired by and will always be grateful for the way he was prepared from his unique position to highlight the plight of the NHS, robustly defending its core values of a universal and comprehensive service - publicly owned, funded and accountable - available to all on the basis of clinical need, and standing up to those who do not share them.  We were privileged to be joined by him as he continued to make this contribution right up to the end of his life, and our sadness today is accompanied by the thought that this judicial review is a testament to how much he cared about the NHS. The case continues, and he will be in our hearts all the way.

Update 4

#JR4NHS

Feb. 27, 2018

We've made it

We have now reached our initial target of £100,000, with 2 days to spare. This means that we have raised over £280,000 altogether from over 9,000 donations - absolutely phenomenal by any reckoning.

And because we got a cost capping order last week, the money raised in Round 3 will go to our lawyers, who have been acting on a ‘reduced fee contingency fee’ basis, which means that they wouldn’t have been paid anything if we hadn’t raised funds via CrowdJustice. There aren’t many lawyers around who are prepared to work on this basis.

We are leaving the page open in case anybody wishes to continue to donate.

We’re still not absolutely sure yet if we need any more – we’ll let everybody know as soon as possible.

Update 3

#JR4NHS

Feb. 22, 2018

Fantastic news – the case is going ahead – costs capped

In an important judgment in the High Court this morning, Mrs Justice Cheema-Grubb found against the Secretary of State and NHS England who had fiercely resisted our renewed application for a cost capping order. She granted an order that in the event of us losing the JR, our liability for the Secretary of State's and NHS England's costs would be no more than £80,000 each; and she ordered them to pay our costs of the hearing.

She found that this was a case which met the statutory test of public interest, brought by responsible and public-spirited individuals, and that as the costs of the defendants were "very high" they should be capped so that the case could go ahead. She added that as the public was funding both sides, as tax-payers and through CrowdJustice, a capping order was “entirely appropriate”.

She also ordered that in the event of us winning the JR, the defendants' liability to pay our costs would be capped at £115,000.  Before the hearing we had offered a cap of £100,000 for our costs.

This judgment is fantastic news and a great relief. We now know that the money our supporters have donated will be enough to pay the defendants' costs if we were to lose the JR, and that with a bit more fund-raising we have a good chance of being able to cover our own lawyers' 'reduced fee' costs.

We were represented in Court by Peter Mant of 39 Essex Chambers instructed by Kate Harrison of Harrison Grant Solicitors.

Update 2

#JR4NHS

Feb. 9, 2018

Two dates for the diary

We've now heard from the court that the oral hearing of our renewed application for a cost capping order has been listed for Thursday 22nd February (1 hour), and the full hearing of the case has been scheduled for 23rd and 24th May (2 days). The hearings will be at the Royal Courts of Justice in the Strand in London.

Update 1

#JR4NHS

Feb. 5, 2018

Renewal of cost capping application

The Secretary of State and NHS England have refused our suggestion that each side bear its own costs whatever the outcome of this important case.  We have therefore asked the court to hear our application for cost capping at a short hearing and have revised the application to ask that the amount we would have to pay, should we lose, be capped at £160,000.

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