Protect our NHS – the Legal Challenge to Bristol’s CCG

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February 13, 2014 by Protect Our NHS

LETTER BEFORE CLAIM:

To:
Bristol Clinical Commissioning Group
South Plaza
Marlborough Street
Bristol
BS1 3NX

Dear Sirs

Re: Bristol CCG Procurement Policy

We are instructed by Protect Our NHS, Bristol.

We write in connection with the decision taken by the Bristol Clinical Commissioning Group (“the CCG”) on 28 January 2014 to approve the CCG’s draft Procurement Policy dated December 2013. We have advised our client that this decision is unlawful as the Policy itself is unlawful.

The agenda paper from the meeting on 28th January 2014 states that the Procurement Policy “is supposed to set out the framework within which the CCG will commission services”. The Aims and Objectives of the Strategy are stated as: “to set out the approach for facilitation open and fair, robust and enforceable contracts that provide value for money and deliver required quality standards and outcomes”. The Guiding Principles of the Strategy include “securing the needs of the people who use the services, improving the quality of the services, and improving efficiency in the provision of the services…” Despite this, nowhere in the Policy is there reference to the National Health Service Act 2006 (as amended by the Health and Social Care Act 2012) which imposed considerable public engagement duties on the CCG.

Section 14Z2(1) of the 2006 Act provides:

“The clinical commission group must make arrangements to secure that individuals to whom the services are being made or may be provided are involved (whether by being consulted or provided with information or in other ways) –

(a) in the planning of the commission arrangements by the group,

(b) in the development and consideration of proposals by the group for changes in the commissioning arrangements where the implementation of the proposals would have an impact on the manner in which the services are delivered to the individuals or the range of health services available to them, and

(c) in decision of the group affecting the operation of the commissioning arrangements where the implementation of the decisions would (if made) have such an impact.”

In September 2013, NHS England exercised its powers in section 14Z2(4) by publishing Guidance for CCGs about patient and public involvement. This Guidance confirms that:

“public, patient and carer voices are at the centre of our healthcare services, from planning to delivery. Every level of our commissioning system will be informed by insightful methods of listening to those who care about our services.”

It also requires the CCG:

“to listen and act upon patient feedback at all stages of the commissioning cycle – from needs assessment to contract management…”

Despite this clear explanation as to the CCG’s legal duties on public consultation, the CCG’s Procurement Policy does not contain any proposals to include patient engagement at any stage of the procurement processes,. The Policy does not build patient involvement into the processes to be operated by the CCG when it undertakes a tender process.

The duty under section 14Z2 requires the CCG to set out in its Procurement Strategy precisely how patients are able to become involved in the decision making processes whenever a tender exercise is undertaken. In contrast to the clear legal duty imposed on the CCG, your present document fails to set out plans as to how the CCG will engage with patients at any point in the commissioning cycle”.

Please therefore inform us within 14 days that:

1. The CCG will revoke the decision taken on 28 January 2014 to adopt the Procurement Policy.
2. The CCG will commit itself to engaging with patients, including our clients, in order to redraft the Procurement Policy to include a proper level of patient involvement.
3. The CCG will take no further steps to progress any current tender processes which are being carried out until it is a lawful procurement strategy.

Unless the CCG is prepared to give each of the above commitments within the next 14 days we have instructions to commence Judicial Review proceedings against the CCG without further notice.

Please note that our client will be seeking a protective costs order in relation to its potential costs risk associated with this claim. Depending on the CCG’s response, an injunction preventing any further procurement processes taking place by the CCG until it accepts its legal duties towards patient involvement in such a decision making process, will also be considered.

Yours faithfully

Leigh Day

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