A South West clinical commissioning group has reached an out of court agreement with NHS campaigners who claimed its polices on patient and public involvement were unlawful – in a legal challenge lawyers warn could cause problems for other CCGs.
Bristol CCG maintains that “in substance” it has had “proper” arrangements for public involvement in place since its inception in April 2013. However, following the challenge by Protect Our NHS it has agreed to amend its procurement policy and constitution to describe the arrangements for public involvement in more detail
Lawyers for the CCG described the issue as a “technical” issue and said the CCG had agreed to pay 80% of the campaigners’ “reasonable” legal fees as “continuing to debate technical points would have incurred further legal costs, and the CCG wished to dispose of the claim quickly”.
Rosa Curling of Leigh Day & Co, representing Protect Our NHS, said the “successful legal action should be a wake-up call for every CCG”.
She added: “Mouthing platitudes about involving patients in decision making is insufficient to discharge the legal duties owed by CCGs to patients.
“Each CCG must have clear arrangements in place which demonstrate that patient involvement is embedded in every aspect of decision making about commissioning”.
Leigh Day argued the CCG had failed to comply with duties imposed under section 14Z2 of the NHS Act 2006, as amended by the Health and Social Care Act 2012, to put in place proper arrangements for patient involvement in its decision making.
Fran Mussellwhite, solicitor at Bevan Brittan which acted for Bristol CCG, told LGC’s sister title Health Service Journal that CCGs should check that their constitutions complied with the letter of the law.
She said: “From what we can see CCGs have good arrangements in place and recognise the importance of patient and public involvement but the strict technical requirements to set out those arrangements in the constitution makes it an easy win if that isn’t there.”
Bristol CCG was also challenged over a lack of an annual commissioning plan, as required under section 14Z11. It has agreed to amend its two-year commissioning plan in order to comply.
The complaint began back in February as a demand that Bristol CCG halt all procurement activity under threat of injunction. At the time the CCG was in the final stages of the multimillion pound procurement of the city’s community mental health services.
The CCG originally resisted the claim on the grounds its procurement protest was robust and out of concern for the impact on patients if it was to halt the procurement. However, an agreement was reached after Leigh Day lodged papers at the High Court last month.
Steve Timmins from Protect Our NHS said the campaign group had been “shocked” that the CCG had not accepted it was in the wrong in the first place.
In a statement, Bevan Brittan said the CCG would scrutinise Protect Our NHS’s legal costs “carefully… in particular having regard to the use of a London firm, a QC and the failure by Protect Our NHS to follow proper procedures designed to resolve complaints without recourse to costly litigation”.
Information supplied to HSJ