GPs and the law on commissioning NHS services (Extract).
This chapter contains:
1.1 There are many definitions of the word “commissioning”. The NHS Improvements Website describes commissioning the achievement of high quality and value-for-money services for the NHS. It states:
“Commissioning is a cycle of activities that includes assessing the needs of a population; analysing 'gaps'; setting priorities and developing commissioning strategies; influencing the market to best secure services and monitoring and evaluating outcomes. In other words, it involves buying in services from a range of health service providers (including GPs, dentists, community pharmacists, NHS and private hospitals, and voluntary sector organisations) to meet the health needs of local people, and monitoring how well they are being delivered. Commissioning is an on-going process that applies to all services, whether they are provided by the local authority, NHS, other public agencies, or by the independent sector”
1.2 The placing of contracts with a provider is thus the final act of the procurement stage of the commissioning process. The contract is the last step in a long sequence of events that ought to take place before the decision is made by the CCG that the NHS ought to contract for any specific service. However commissioning is a continuing process because, after the contract has been placed, the commissioner is then responsible for monitoring the performance of the contractor.
1.3 Hence commissioning process is thus complex. This chapter describes some of the legal challenges which arise in the commissioning process. It also contains an outline as to how NHS bodies are able to make lawful commissioning decisions. The model will not be followed by every CCG in every case, but the steps which are set out below are the essential building blocks of a lawful commissioning process.
1.4 Commissioning is challenging for GPs who want to do the best for their patients because the demand for clinically effective healthcare treatment for individual patients (suffering from both common and rare medical conditions) vastly exceeds the ability of the NHS to fund such treatment. NHS bodies have a finite budgets and this means that difficult choices have to be made about how services are organised and structured and, in the end, which drugs and other treatments can and cannot be provided to patients suffering from both common and rare conditions. Once it is recognised that choices have to be made as to which treatments the NHS can afford to provide to patients, it is a legal necessity that the process of making those policy choices should be transparent and rational.
1.5 Section 1 of the National Health Service Act 2006 imposes a duty on the Secretary of State to continue the promotion of “a comprehensive health service”. Some patients and clinicians rely on this section to argue that the NHS is obliged to provide them with a comprehensive service and so argue that rationing NHS services is inherently unlawful. However inevitably it is not that straightforward. Section 1(1) of the NHS Act provides:
“The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement—
(a) in the physical and mental health of the people of England, and
(b) in the prevention, diagnosis and treatment of physical and mental illness”
1.6 The Court of Appeal decided in that the “duty of promotion” on the Secretary of State was not a duty to provide a comprehensive health service. The Court accepted that budget considerations may mean that the Secretary of State could never in fact provide a service that was truly comprehensive, in that it provided services to meet all healthcare needs. The court decided that the section meant the Secretary of State was required to use his or her powers to focus on providing as comprehensive a service as the NHS budget would permit, recognising that the NHS may never get to that state of healthcare nirvana.
1.7 In Coughlan the Court of Appeal was considering the wording of section 1(1) in the NHS Act 1977. The only change since that time is that is the Health and Social Care Act 2012 changed the words in sub-section (b) from “illness” to “physical and mental illness”. “Illness” already had a wide definition in section 275 of the NHS Act which states that “includes mental disorder within the meaning of the Mental Health Act 1983 and any injury or disability requiring medical or dental treatment or nursing”. This change accordingly appears to make no difference at all, save that it emphasises that the NHS has a duty to provide mental health services as well as services to meet physical illnesses.
1.8 So what is the legal effect, if any, of the duty on the Secretary of State to “continue the promotion in England of a comprehensive health service”? The practical answer is that this section has little if any legal effect because it is difficult to imagine any set of circumstances in which the decision is required to be different because the Secretary of State has the section 1 duty. There has been no court case concerning reorganisation of NHS services or access to NHS funded medical a treatment which (and there have been many) which, as far as I am aware, has criticised the Secretary of State for failing to discharge the section 1 duty.
1.9 The Court of Appeal in noted that the Secretary of State has a duty to continue the promotion in England of a comprehensive health service. The court then said:
“His duty under section 3 is subject to the qualification that his obligation is limited to providing the services identified to the extent that he considers that they are necessary to meet all reasonable requirements. He does not automatically have to meet all the requirements and in certain circumstances he can exercise his judgment and legitimately decline to provide them. In exercising that judgment he is entitled to take into account the resources available to him and the demands on those resources”
1.10 It is therefore clear that the Secretary of State does not have a statutory duty to deliver a comprehensive health service. NHS commissioners are required to remain focused on the fact that the Secretary of State has a duty to promote the delivering of a comprehensive health service remains the ultimate aim of the NHS even if that is unachievable in practice.
1.11 The real world of restricted budgets (which is fully recognised by the courts) means that lawful commissioning needs to focus on how decisions are made. Commissioning is concerned with the process by which decisions are made in the NHS because, whenever a decision is made, there will be winners and losers. There will be patients and clinicians who secure the funds for the services they have been seeking and there will be those that are disappointed (and often angry) and feel that the wrong decision has been taken. The focus of this chapter will therefore be on the process of taking decisions and the challenges of ensuring that the decision making process is legally robust.
1.12 The NHS has a Constitution to which all NHS bodies, including Clinical commissioning Groups (“CCGs”) are required to “have regard to the NHS Constitution”: see section 2 of the Health Act 2009. The duty to “have regard” to the NHS Constitution during a decision making process means that the CCG is obliged to understand the terms of the NHS Constitution and act in accordance with the principles set out in that document unless it has a very good reason to depart from those principles. The relevant part of the NHS Constitution on commissioning provides:
“The NHS commits to make decisions in a clear and transparent way, so that patients and the public can understand how services are planned and delivered.”
1.13 Hence, throughout the commissioning process, there is a need for CCGs to act in a clear and transparent way, and to ensure that they can defend their reasoning at all times within the commissioning decision making process. It also ties in to the central importance of public participation in the commissioning process which is considered at chapter 11 below.