Stephen Hawking and leading doctors to take Jeremy Hunt to court over 'back-door privatisation' of NHS

Exclusive: Full judicial review granted to determine the lawfulness of the Secretary of State's proposals to introduce Accountable Care Organisations

Professor Stephen Hawking has won permission to take Jeremy Hunt and NHS England to court over controversial proposals to restructure the health service, The Independent can reveal.

Mr Hunt has tabled a plan which could allow commercial companies to run health and social services across a whole region in what critics have described as allowing back-door privatisation.

Leading healthcare professionals and Professor Hawking have argued an act of parliament is required, allowing MPs and Lords to scrutinise the proposals, before the policy is implemented and any changes to regulations are made.

Lawyers from the Department of Health and NHS England have rejected these claims but a court has now ruled that a full judicial review will be granted to determine the lawfulness of Mr Hunt’s proposals.

The news comes as pressure mounts on Mr Hunt after he faced a barrage of criticism during a record winter crisis for the NHS. One in five NHS hospital trusts ran out of beds in the first weeks of winter and adult patients were put on children’s wards as trusts struggled for space.

Under Mr Hunt’s plans the boundaries between different parts of the NHS that pay for and provide care, such as hospitals, GPs and clinical commissioning groups, would be dissolved.

Responsibility for patients in these areas would be held by new healthcare overseers called Accountable Care Organisations (ACOs) which could lead to newly merged NHS super-organisations or a non-NHS body being awarded contracts to manage and provide entire packages of care.

These ACOs in turn could choose to either subcontract the service or provide it themselves.

Campaigners say this would allow ACOs to control the allocation of NHS money but their accountability for spending it and their obligations to the public would be under commercial contracts, not parliamentary statutes.

The ruling is the latest instalment in an on-going feud between Professor Hawking and Mr Hunt, with the scientist previously accusing the Health Secretary of cherry picking and misrepresenting research.

The Department of Health described campaigners’ criticisms about ACOs as “misleading” and “irresponsible scaremongering”.

Just last week Mr Hunt was forced to slow down his attempts to enforce the plans and conceded that a national public consultation was needed. Despite the setback the Secretary of State for Health and Social Care said he still planned to go ahead with his plans.

Campaigners argued this was a “concession in response” to their potential judicial review.

Now, a court has ruled in favour of Professor Hawking and the health campaign group, JR4NHS, and said that a judicial review will be required.

Claimant and ex-Cabinet Office civil servant, Professor Sue Richards said the judicial review was an “essential mechanism for ensuring public accountability”.

“I am delighted that we have been allowed to challenge actions by Government and NHS England to bring in this policy without making changes to the law which we say are necessary,” Professor Richards said.

Dr Colin Hutchinson, a former consultant eye surgeon who is also a claimant and the chair of Doctors for the NHS, said Mr Hunt’s proposals would “eventually affect everybody in England”.

“There needs to be a sound legal basis before 10-year contracts worth billions of pounds are outsourced to these new organisations. We are delighted that the court has decided that our arguments deserve to be examined in detail,” Dr Hutchinson said.

Professor Hawking has claimed that the health policy was heading towards a “US-style insurance system run by private companies”.

Dr David Wrigley, the chair of doctor’s in Unite and a member of the BMA’s council said the judicial review was “welcome news” and that ACOs would have a “huge” impact on healthcare systems.

“It is absolutely vital to have a judicial review at the present time as it was going to be pushed through parliament with no vote and no scrutiny,” Dr Wrigley told The Independent.

“It is welcome news that parliament and patients may get a chance to look at this as there is so little known about the impact of ACOs.”

Dr Wrigley also accused the Department of Health of trying to get the policy through without scrutiny.

“There is so little known about what the impact the ACOs will be on the health economy. A little bit more scrutiny and consultation is a good thing in my mind,” he added.

Dr Rachel Clarke, an author and NHS doctor, said anything that allows for greater scrutiny of the ACOs could “only be a good thing”.

“When long-term NHS contracts are being rewritten covertly, behind closed doors, it is impossible not to fear their potential impact on our health service. If ACOs are no threat to the NHS as we know it, then why are they not being talked about openly? Why are they being rushed through on the sly?” Dr Clarke told The Independent.

Baroness Judith Jolly, the Liberal Democrats’ spokesperson for Health said: “Accountable care organisations need to be just that – “accountable to the taxpayer” with a clear governance structure and backing in law.

“Sarah Wollaston MP [the chair of the Health Select Committee] did not get a straight answer from Jeremy Hunt, Secretary of State on this. There needs to be a legal process to set up these organisations and if it takes a judicial review to do that – so be it.”

An NHS England spokesperson described the judicial review as a “mistaken effort which would frustrate the move to more integrated care”.

“The effect would be to fragment care and drive apart the very people who are now rightly trying to work more closely together on behalf of the patients they jointly serve.”

A Department of Health and Social Care spokesperson added that its consultation process was “appropriate and lawful”.

“We strongly resist the misleading claims in this action; it is irresponsible scaremongering to suggest that Accountable Care Organisations are being used to support privatisation and harm the fundamental principles of the NHS.

“The NHS will remain a taxpayer-funded system free at the point of use; ACOs are simply about making care more joined-up between different health and care organisations.

“Our consultation on changes to support ACOs is entirely appropriate and lawful. We believe it is right that local NHS leaders and clinicians have the autonomy to decide the best solutions to improve care for the patients they know best – and any significant local changes are always subject to public consultation and due legal process.”